International & Transnational Criminal Law

Karigar Sentenced in Corruption Case

 

Further to my earlier post on the R. v. Karigar decision (Canada's first conviction after trial under the Corruption of Foreign Public Officials Act), Karigar has been sentenced to three years for conspiracy to bribe public officials in India. Justice Hackland's sentencing decision can be found here.

In his trial judgment Justice Hackland made fairly significant interpretive use of the OECD Bribery Convention (which the Canadian legislation implements), and interestingly he does so in the sentencing decision as well. In particular, he invokes article 3(1) of the Convention which requires state parties to impose "effective, proportionate and dissuasive criminal penalties" for these crimes, which he used to ground a finding that a serious sentence was required in the ultimate disposition:

"Canada’s Treaty Obligations as well as the domestic case law from our Court of Appeal requires, in my view, that a sentence be pronounced that reflects the principals of deterrence and denunciation of your conduct. Any person who proposes to enter into a sophisticated scheme to bribe foreign public officials to promote the commercial or other interests of a Canadian business abroad must appreciate that they will face a significant sentence of incarceration in a federal penitentiary."

The Crown had called several witnesses to testify to contextual or aggravating factors, including the difficulty of prosecuting transnational corruption cases, the OECD's earlier dissatisfaction with Canada's pursuit of Convention offences (discussed in Chapter 7 of our book), and "that interest in the problem of bribery and corruption on the part of companies doing business in foreign countries was considerably enhanced when more significant penalties and prosecutions of individuals were identified as the likely outcome of future prosecutions." For the most part Hackland J. rejected these points as "not directly relevant," though he did take judicial notice "of the obvious reality that the corruption of foreign public officials, particularly in developing countries, is enormously harmful and is likely to undermine the rule of law. The idea that bribery is simply a cost of doing business in many countries, and should be treated as such by Canadian firms competing for business in those countries, must be disavowed."

In my view, Justice Hackland was correct to rule that the OECD's criticism of Canada's prosecution was not relevant to sentencing. This is a criticism that Canada has actually met of late, bringing in new amendments to allow for nationality jurisdiction over offences under the Act and toughening the sentencing requirements. The point, though, is that this is an international law matter and perhaps one of how prosecutorial discretion is to be exercised -- not something that should be taken out on Mr. Karigar. Sentencing of an individual to a pentitentiary term has a number of objectives, but one of them is not to smooth out bumpy parts of Canada's foreign relations.

I note that this point was part of the dialogue in the case of military traitor Jeffrey Delisle (which I blogged about here), though it is unclear whether the Crown actually made this argument or that it was a factor in sentencing, because for some unknown reason Judge Curran's decision in that case (delivered orally on February 8, 2013) has not been released yet.

Munyaneza Conviction Upheld by Quebec CA

 

On May 7, the Quebec Court of Appeal released its decision in Munyaneza c. R.  This was an appeal by the accused, Desire Munyaneza, who was convicted in 2009 on seven counts of genocide, crimes against humanity and war crimes. The Court of Appeal, in a decision co-authored by Dalphond, Hilton and Doyon JJA, dismissed all the grounds of Munyaneza's appeal and upheld the conviction, which was rendered by Justice Denis in 2009, after a judge-alone trial (the trial judgment can be found here).

This case was under appeal for nearly five years, and as anyone who follows this field knows, this case is a big deal. The trial itself represented the first field-testing of Canada's Crimes Against Humanity and War Crimes Act, which was designed to produce exactly this result: allowing Canada to prosecute people accused of international crimes--using the principle of universal jurisdiction--so as to uphold the international criminal justice mission that it has worked so hard to promote.

As I have written elsewhere, one of the most interesting challenges of these cases for domestic courts is figuring out what law applies and how to apply it. The Act uses a somewhat novel approach, which is to define the crimes in accordance with their international law definitions, as those definitions existed at the time and in the place that the alleged crime took place. This makes prosecution a complicated affair; in this case, for example, the court had to determine what the applicable law was at the time of the 1994 Rwandan genocide (from which the charges emerged), requiring it to deal with such questions as the classification of the armed conflict that was going on in Rwanda at the time (which has implications for which part of war crimes law applied). Naturally, our courts have the expertise and case law of the Rwandan and Yugoslavian ad hoc tribunals to draw on, but that too is fraught with methodological complexity. These ended up being fairly major questions in the appeal, as Munyaneza argued that the trial judge had made some incorrect determinations on the state of the law in 1994. However, the Court of Appeal dealt with these issues deftly, no doubt aided considerably by the knowledgable counsel of the Justice Canada War Crimes Section, who would have been backstopping the prosecutors from the PPSC who actually conducted the Crown's case.

Another interesting feature of the Act is that it integrates the substantive international law of the core crimes with Canadian procedural law. This, too, informed several points on the appeal, and the case underscores again that this is a workable exercise. It is extremely important that states be able to deal with these crimes within their national legal frameworks, and a success story like this bodes well -- both for the continuing vitality of the Canadian approach and for continuing the momentum behind the prosecutions of core crimes by states.

I was also delighted to see that the first edition of International & Transnational Criminal Law was cited in several places by the Court of Appeal, as well as an article on the trial decision that I co-authored with Ion Stancu of the War Crimes Section. The wonderful book by my friend and colleague Fannie Lafontaine, Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts, was also cited extensively. As I've written here before, it is an honour and a pleasure to have one's work cited, and gratifying to have made even a modest contribution to advancing the law in this area.

I might normally have provided a more detailed analysis of the case, but Prof. Lafontaine has beaten me to it; you can find her initial take on the decision here, and it is well-worth reading.