Canadian Corruption Of Foreign Public Officials Act: Two Additional Convictions In The Cryptometrics Saga

Two individuals were recently sentenced to 30 months' imprisonment after being convicted of agreeing to bribe a foreign public official, under the Canadian Corruption of Foreign Public Officials Act (Act).1 These are the second and third convictions under the Act following a trial. In all other cases, the individuals charged to date have pleaded guilty or the charges were stayed.

Legal Context of the Corruption of Foreign Public Officials Act

The Act is the result of Canada's ratification (along with 43 other countries) of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

In cases of bribery of foreign public officials that occurred between February 14, 1999 (the date the Act came into force) and 2013, individuals or organizations may be criminally prosecuted in Canada provided that a real and substantial link is established between Canadian territory and the offence in question.2 Thus, for that specific period, Canadian jurisdiction is territorially limited. Such jurisdiction is based on many factors, which included both the legitimate and the illegitimate aspects of the alleged infraction,3 such as Canada being the jurisdiction where the unfair advantage and fruits of the infractions were enjoyed, or where the persons who benefited from or participated in the alleged bribery are situated or where the evidence and witnesses are located.

However, the jurisdiction of Canadian courts was greatly expanded by an amendment to the Act in 2013.4 Since then, any Canadian individual and any Canadian company may be prosecuted in Canada for bribing public officials abroad (or accounting falsification), despite the absence of any additional territorial links with Canada. Henceforth, nationality is sufficient for Canadian jurisdiction.

The Cryptometrics Case

The RCMP conducted a major investigation after anonymous disclosure was made to the U.S. Department of Justice in 2007, alleging agreements to bribe Indian public officials to ensure that Air India awarded lucrative contracts to Cryptometrics, a Canadian company that specialized in security software. Ultimately, four individuals (one Canadian, one British national and two American nationals) were criminally charged under the Act.

The First Conviction After Trial in Canada Under the Act

After a first trial,5 Canadian Nazir Karigar was found guilty of having agreed to offer (i) US$200,000 to Air India employees to ensure the technical approval of...