The Karigar Sentence And The Future Of Anti-Corruption Sentencing Under The CFPOA

Casting the First Stone: The Karigar case1 was the first real test of Canada's anti-corruption legislation. Nazir Karigar ("K") was convicted under a single count of offering a foreign bribe to a foreign official,2 contrary to s.3(1)(b) of the Corruption of Foreign Public Officials Act.3 "It is important to note that the charge was "offering", because the entire bribery scheme was an abject failure, and there was never any agreement to accept a bribe. K and his foreign superiors were singularly unsuccessful in bribing anyone, leaving K to suffer the consequences while his superiors avoided prosecution by fleeing to America.

K is a singularly sympathetic figure. He is a 67 year old professional who worked for a small local firm here in Ottawa's "Silicon Valley North" trying to win a contract to sell facial recognition software to Air India. He had no criminal record, there was a "high level of cooperation" on K's part with the prosecution, and indeed K brought the whole scheme to the RCMP's attention. He was a go-between who admitted most of the constituent elements of the offence as well as volumes of documentary evidence, shortening the trial considerably. In fact the trial mainly involved legal argument about the vagaries of the CFPOA--- all of which went against the accused. So here we have the epitome of a respectable business person who got caught up in illegal scheme and upon realizing the error of his ways, did the right thing. So why sentence him to three years in prison?

The Need to Repair Canada's Reputation: K was in the wrong place at the wrong time in history. The court entertained both witnesses giving evidence, and Crown submissions, to suggest that (1) as a general proposition these CFPOA charges were hard cases to prosecute, (2) Canada had a reputation of leniency, (3) that enhanced penalties made for a better business climate in Canada. While the court dismissed these submissions as largely irrelevant, they clearly played a role in the harshness of the sentence for someone who was the middle cog between more powerful actors who had not been extradited from the United States and a few underlings who had been able to negotiate immunity.

The American Comparable: K's timing was abysmal. The Court reviewed the three previous plea bargains under the CFPOA, noting in passing that American cases were of limited value given their use of grids, sentencing guidelines, culpability scores and advisory ranges. Nevertheless the judicial...