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.
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