2021 will offer an interesting spotlight on the Government of Canada’s commitment to its anti-corruption enforcement activity. 2020 was largely silent on anti-corruption activities and enforcement as compared to 2019, which had seen an uptick in cases from previous years, particularly when considering the SNC-Lavalin prosecution and legislation establishing the Canadian Deferred Prosecution Agreement (DPA) regime (called ‘Remediation Agreements’ in Canada). 

Charges against an individual as opposed to a corporation is a trend witnessed over the last few years in Canada in relation to the enforcement of the Corruption of Foreign Public Officials Act (CFPOA). This trend continued in 2020, notably with charges being laid in late 2020 (resulting from an investigation initiated in October 2018), against a former executive of IMEX Systems Inc., after new management of the company self-reported allegations of bribery relating to activities in Botswana to the RCMP. The former executive, Mr. Damodar Arapakota, is charged with bribing a public official from Botswana under section 3(1) of the CFPOA for providing financial benefits to a Botswanan public official and their family. 

While 2020 did not see the use of the Remediation Agreement provisions of the Criminal Code, we anticipate the possibility of greater use of this means of resolving a corruption charge in 2021. The regime has now been in effect long enough for corruption investigations active since the regime was first introduced to reach their conclusion, requiring prosecutors to decide whether to pursue criminal prosecution of corporations implicated or instead make use of a Remediation Agreement. If 2021 does indeed see the first Remediation Agreement being concluded, it is likely to attract significant attention, with onlookers eager to understand how the statutory framework will be applied in a practical context.  

The Organisation for Economic Co-operation and Development (OECD) Working Group on Bribery was also scheduled to conduct a working visit to Canada in October 2020. Unfortunately, the visit and the report have faced delays, with the Working Group report now scheduled to be issued in June 2023.  Canada’s implementation and enforcement of the OECD Anti-Bribery Convention is monitored by the OECD Working Group on Bribery through a rigorous peer-review monitoring system. The lack of visible enforcement, potential for increased corrupt activities across several sectors as seen by trends in other countries and the impetus by the Government of Canada to demonstrate its commitment to investigating and enforcing anti-corruption measures to the OECD also hint at an increase in anti-corruption enforcement for 2021. 

This enforcement activity should also be bolstered by the Government of Canada’s renewed interest in anti-money laundering activities. As of December 2020, the Canadian government announced it will invest CA$98.9 million over five years to modernize the RCMP and strengthen its ability to help fight money laundering and identify proceeds of crime. New money laundering investigative teams will be created in British Columbia, Alberta, Ontario, and Québec, bringing together expertise from a variety of agencies to address high-profile cases and advance investigations into money laundering and proceeds of crime nation-wide.

The negative and wide ranging impact of money laundering has been brought to light via the Cullen Commission in British Columbia which has been conducting virtual hearings through 2020. The Commission’s hearings are presently scheduled to conclude in May 2021. The Commissioner has determined that the Commission team will need time beyond the original delivery date of May 15, 2021 to complete its final report due to the breadth of the issues being addressed, the length of the public hearings, the effects of the pandemic, and delays and challenges in obtaining documents. Even considering the hurdles faced by the Commission, based on the robust work to date, it is believed the final report will be issued in the latter part of 2021, if not sooner. Based on both the anticipated findings of the Report as well as the federal government’s initiative on money laundering, we expect a marked increase in enforcement actions relating to money laundering activities.

Considering that corruption and money laundering are generally complementary activities, 2021 could see robust enforcement on both fronts not simply because there is more illegal activity but because public concern is heightened and expectations are building. 

In short, 2021 has all the potential for a busy and interesting year ahead in the anti-corruption and anti-money laundering sphere. The conclusions reached by Commissioner Cullen in his much-anticipated report, combined with the prospect of a precedent setting Remediation Agreement, may mean 2021 becomes a year to remember for financial crime enforcement.

To read other articles in the Dentons’ pick of Canadian Regulatory Trends to Watch in 2021 series, click here.

For the latest information and developments in regulatory law across Canada, see our Canada Regulatory Review blog.