On July 6, 2017, in R. v. Karigar, the Ontario Court of Appeal (Court) dismissed an appeal by Mr. Nazir Karigar of his conviction for agreeing to offer a bribe to a foreign public official, contrary to section 3(1)(b) of the federal Corruption of Foreign Public Officials Act (CFPOA). In 2013, this was the first conviction against an individual under the CFPOA. In upholding the conviction, the Court confirmed that the bribery offence in the CFPOA can be made out in the absence of evidence that a bribe is actually paid to a foreign public official and does not require proof of an agreement between the accused and the official.
In August 2013, Mr. Karigar was convicted in the Ontario Superior Court for his role in a plan to bribe Indian officials, including a government minister, to secure a multi-million dollar contract with Air India for the provision of facial recognition software and related equipment. At the material time, Mr. Karigar was acting as a paid agent for Cryptometrics Canada (Cryptometrics), a technology company based near Ottawa.
Mr. Karigar was convicted despite a lack of evidence that a bribe was paid to the foreign officials and despite Cryptometrics not receiving the contract. For more information on the conviction, please see our July 2013 Blakes Bulletin: Canada’s First Foreign Bribery Trial Results in First Conviction of an Individual.
Mr. Karigar was subsequently sentenced to three years in prison, marking the first time that a jail term had been ordered for a CFPOA conviction. For more information on Mr. Karigar’s sentencing, please see our May 2014 Blakes Bulletin: Karigar Receives Three Years in Landmark Corruption Sentencing.
The appeal raised two main issues. First, Mr. Karigar asserted that the word “agree” in section 3(1) of the CFPOA requires proof of an agreement between the accused and the foreign public official and therefore did not cover a conspiracy to offer a bribe. That section provides that every person commits an offence who “gives, offers or agrees to give or offer” a benefit to a public official.
The court rejected Mr. Karigar’s interpretation, concluding that the bribery offence is not just limited to a direct agreement, which would be a clear case, but also includes an indirect agreement to give or to offer an advantage. In reaching this conclusion, the court noted that the approach suggested by the appellant would constrain the Crown’s ability to enforce the CFPOA in accordance with Canada’s obligations under the Convention on Combating Bribery of Foreign Public Officials. The court’s decision clarified that the CFPOA covers both conspiracies to bribe as well as actual bribes or offers to bribe foreign officials.
Second, Mr. Karigar claimed that there was an insufficient connection between the offence and Canada to give the Ontario court territorial jurisdiction over the events at issue and that the test to be applied in considering whether the court had territorial jurisdiction over the offence was limited to analyzing whether the “essential elements of the offence” took place in Canada. Although the CFPOA was amended in 2013 to extend Canada’s jurisdiction to prosecute offences involving Canadian citizens and corporations worldwide (nationality jurisdiction), Mr. Karigar, a Canadian citizen, was charged under the older version of the CFPOA (territorial jurisdiction). This required that there be a territorial nexus between Canada and the offence for the CFPOA to apply — otherwise known as the “real and substantial link” test, set out in the Supreme Court of Canada’s decision in R. v. Libman (Libman). Mr. Karigar argued that Canada did not have the requisite territorial connection to the offence because, among other things, virtually all the impugned dealings occurred in India. On appeal, the court found that the trial judge correctly applied the Libman test and noted a number of factors connecting the offence to Canada, including that Mr. Karigar was acting as an agent or employee of a Canadian company and that the unfair advantage and fruits of the contract obtained through bribery would have benefitted that company.
While the territorial connection issue will not be relevant to future CFPOA cases involving alleged offences that post-date the 2013 CFPOA amendments, the decision develops the jurisprudence on the Libman test, which continues to apply in other criminal contexts.
This decision could serve as a precedent for a liberal interpretation of the CFPOA, in line with Canada’s international obligations. Together with the Supreme Court of Canada’s recent decision in World Bank Group v. Wallace, it also highlights the courts’ view of the importance of tackling corruption in international business practices in order to promote a level playing field for corporations and public institutions.