Canada's Corruption of Foreign Public Officials Act Has Sharp Teeth And Long Arms

Ontario's highest court, the Ontario Court of Appeal, issued a decision on July 6, 2017 in R. v. Karigar, which takes enforcement of foreign bribery to another level in Canada. In 2013, Mr. Karigar was convicted of offering to bribe a foreign public official contrary to paragraph 3(1)(b) of the Corruption of Foreign Public Officials Act ("CFPOA"). Mr. Karigar appealed the conviction on three grounds:

There was no sufficient connection to Canada to give the Ontario Court territorial jurisdiction over what occurred (the bribery); The Crown must prove an agreement between the accused and the foreign public official; and The trial judge erred in his application of the co-conspirators' exception to the hearsay rule and misapprehended some of the evidence. The Ontario Court of Appeal dismissed the appeal.

Jurisdiction of Canadian Courts

The Ontario Court of Appeal agreed with the trial judge that Canada has territorial jurisdiction over foreign bribery. The appropriate test is whether there is a real and substantial link between the offense and Canada. Canadian courts frequently take jurisdiction over transnational offences that occur partly in Canada, especially where Canada has a legitimate interest in doing so. The Ontario Court of Appeal agreed with the trial judge "that the substantial link test is not limited to the essential elements of the offence, and that the bribery could not be hived off from the legitimate aspects of the transaction for the purposes of the territorial connection analysis."

In the Karigar case, Mr. Karigar was a Canadian businessman who approached a Canadian company with a business proposal that ultimately involved a bribery scheme in India. Mr. Karigar acted as an agent of the Canadian company in his negotiations with Air India officials (who received bribes or were to receive bribes) to sell Cryptometric Canada's facial recognition technology. If the contract was to be awarded, much of the work was to be performed in Canada to fulfill obligations under the contract (there were four pages of summarizing the evidence before the trial judge). Most of the emails and documents seized as evidence were seized from offices in Canada. Most of the witnesses in the court proceedings were from Canada. Mr. Karigar made admissions in Canada to the RCMP.

The Ontario Court of Appeal agreed with the trial judge that there was substantial evidence of a substantial connection to Canada. The trial judge was satisfied beyond a...