As discussed in Chapter 7 of the book, Canada is a party to the OECD's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, as well as to the United Nations Convention Against Corruption, which are implemented by the Corruption of Foreign Public Officials Act. Canada's approach to enforcing against corruption has been criticized as somewhat lacklustre, but that record has improved of late, with some guilty pleas and a well-publicized investigation of SNC Lavalin.
Recently, Justice Charles Hackland of the Ontario Superior Court of Justice (Ottawa) released his decision in R. v. Karigar, which was the first prosecution under the Act that went to trial. Karigar was convicted of entering into a conspiracy to bribe public officials in India who were administering a bid process for Air India. The evidence against Karigar was quite strong, including numerous emails, electronic records and a number of admissions he made.
A few interesting points emerge. On a general level, this is a shot in the arm for Canada's role as a partner in the transnational fight against corruption. The government's willingness to devote more resources to these prosecutions is paying dividends, which can be used to refute criticism of Canada's seeming lack of interest in prosecuting a very pernicious crime.
Second, Justice Hackland was required to interpret the offence provision, s. 3(1) of the Act, which requires the Crown to prove that a person “directly or indirectly gives, offers or agrees to give or offer...” a benefit to a foreign public official "b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions." The Crown presented no evidence that the foreign public officials had, in fact, received a bribe, and the accused argued that the "agreement" could not be proven in the absence of this evidence.
The court agreed with the Crown's argument that s. 3 of the Act in fact imported a conspiracy offence into the Act, evidence of which was found in the OECD Convention itself and, in turn, Parliament's clear intention to implement the Convention fully by way of the Act. It is always encouraging to see courts (here at the instance of the Crown) using the suppression convention which the legislation is designed to implement as an interpretive tool. Justice Hackland also made an interesting observation which further underscored the importance of the international law underlay in such cases:
I also reject the accused’s submission on a policy basis. In my opinion if the word “agrees” in the Act is restricted to the act of essentially two parties, “one to pay the bribe and one to receive the bribe”, the scope of the Act would be unduly restricted and its objectives defeated. Moreover, to require proof of the offer of or receipt of a bribe and the identity of a particular recipient would require evidence from a foreign jurisdiction, possibly putting foreign nationals at risk and would make the legislation difficult if not impossible to enforce and possibly offend international comity (at para. 29).
The third interesting point arose from the accused's argument that Canada had no territorial jurisdiction over the offence, since Karigar himself never left Canada and the Act at the time Karigar was charged did not provide for nationality-based jurisdiction (it does now). The Crown argued, successfully, that territorial jurisdiction was established by way of the "real and substantial connection" test in R. v. Libman (this is dealt with fully in Chapter 8 of the book). In international law terms, "real and substantial connection" establishes qualified territoriality, meaning it is legal under international law for Canada to claim territorial jurisdiction over the offence even though it was committed partly in another state (here, the U.S. and India), because there are sufficient links between Canada and the offence.
Justice Hackland's reasons on this point are worth setting out in full:
I am of the opinion that territorial jurisdiction is clearly established in this case. The substantial connection test is not limited to the essential elements of the offence as submitted by the accused. Moreover, one cannot segregate or otherwise deal with the bribery as a separate and discrete issue thereby excluding the legitimate aspects of the transaction from consideration in applying the substantial connection test. As I observed in my earlier ruling in the prohibition application in this case, at paragraph 8:
In Libman, after examining the British and Canadian jurisprudence on this subject, Justice La Forest held that the territorial basis for assuming jurisdiction was never applied rigidly in Canada. He stated at pp. 212-213 that “all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. …[I]t is sufficient that there be a “real and substantial link” between an offence and this country.” The outer limits of the test, according to Justice La Forest, were “coterminous with the requirements of international comity”: p. 213.
I accept the Crown’s submission that the facts show a real and substantial connection to Canada. When the accused first approached Cryptometrics Canada, a Canadian company based in Ottawa, Mr. Karigar was a Canadian businessman resident for many years in Toronto. At all material times in reference to efforts to secure the Air India contract, he was employed by or/and acted as an agent of Cryptometrics Canada. A Canadian company (Cryptometrics Canada) based in Ottawa was the contracting party. Mr. Karigar and his co-conspirators contemplated obtaining work, and an unfair advantage, for a Canadian company or for a significant Canadian component of an International Company, as the fruit of a contract with Air India obtained through bribery. Had the contract been awarded the evidence shows that a great deal of the work would be done by Cryptometrics Canada employees in Ottawa. This scenario provides a sufficient substantial connection to confer jurisdiction on this Court over the bribery offence charged.
Further, in reference to the Libman test I see nothing about this prosecution which would offend international comity. Canada is a signatory to theConvention and is obligated to enforce the CFPOA. The Convention seeks to promote a level playing field for the pursuit of international business among member states. If a Canadian company could obtain a contract through the use of bribes and not be prosecuted for it, the purpose of the Convention would be thwarted and Canada would be in violation of its obligations under the Convention. Additionally, as the Crown points out, nearly all of the real evidence, principally documents and e-mails, was situate in Canada and was seized in Canada. All of the witnesses who testified at trial were from Canada (paras. 39-41).
This is a solid application of the Libman test. Justice Hackland's remarks on the "international comity" portion of the test implicitly invoke the approach taken to comity by Justice La Forest in Libman itself, where he remarked that in the modern era of transnational crime, comity may very well mean that states should consider themselves to have a duty to prosecute, rather than forbear due to worries about overstepping jurisdiction. The point arising from this case is that this duty is particularly keen when Canada is party to a suppression convention under which Canada is obliged to its treaty partners to prosecute where appropriate.
Incidentally, this case also puts to rest criticisms made of the Act by the OECD personnel charged with reviewing state compliance with the Convention, who suggested in various reports that the Libman approach might not be robust enough to catch corruption cases with transnational aspects. In Chapter 7 of the book, I rejected these criticisms as reflecting an imperfect understanding of qualified territoriality under Libman, and it's nice to be right once in a while.