Corruption of Foreign Public Officials: Was the Karigar Prosecution an Outlier?
On August 15th, Nazir Karigar was found guilty of agreeing to offer bribes to foreign public officials. Mr. Karigar conspired with the senior management of Cryptometrics Canada and its parent company to offer millions of dollars worth of bribes to various Air India officials and the Indian Minister of Civil Aviation, in order to secure a lucrative contract to supply technology related to airline security. The company failed to secure the contract and the Crown did not prove that a payment was actually received by any of the intended recipients.
There were three main issues at trial [2013 ONSC 5199 (CanLII)]. First, the defense challenged the admissibility of communications between senior management. In particular, e-mails related to the bribe were seized from computer hard drives. Based on the testimony of an unindicted co-conspirator (who testified under promise of immunity from prosecution) and the accused’s own admissions, the Crown proved: 1. beyond a reasonable doubt the conspiracy existed, and 2. on balance of probabilities the accused was a member of the conspiracy. Thus, the co-conspirator exception to the presumption against admitting hearsay testimony was met and the evidence was admitted.
Second, the defense argued that the word “agrees,” as it appears in the legislation [S.C.1998, c. 34 s. 3], required the Crown to prove beyond a reasonable doubt that a bribe was actually offered or paid a bribe to an official. Hackland R.S.J. disagreed, finding that proof of a conspiracy or agreement to bribe foreign officials was sufficient to establish the actus reus of the offence. The judge based his decision on the fact that Canada is a signatory of an international Convention, requiring Canada to criminalize attempts and conspiracy to bribe a foreign public official to the same extent, as such prohibitions apply to domestic officials. Additionally, as a matter of policy, requiring proof of the offer or receipt of a bribe would necessitate evidence from a foreign jurisdiction, which would make the legislation difficult to enforce, could put foreign nationals at risk and disrupt international comity.
Finally, the defense argued that Canada lacks territorial jurisdiction to try the offence because there was no “real and substantial connection” between Canada and the offence. The judge rejected this argument, relying on evidence that the accused was employed by a Canadian company based and operating in Ottawa. The conspiracy intended to obtain an unfair advantage for the Canadian company, all the witnesses who testified at trial were from Canada and most of the real evidence was seized and stored in Canada. Notably, the legislation was recently amended such that a person is deemed to have committed the act of conspiracy to bribe in Canada if they are a Canadian citizen, permanent resident or an association formed or organized pursuant to Canadian law [S.C. 1998, c. 34 s. 5]. The “no substantial connection” defense of has been severely circumscribed.
The Corruption of Foreign Public Officials Act
This case was significant because it was the first time in the 14 year history of the Act that a prosecution has proceeded to trial (there have been a handful of guilty pleas). It also confirms that employees of an organization comparable to a Crown corporation may fall within the definition of a “public official” and that conspiracy to bribe a foreign public official will attract liability without proof that a bribe was actually received.
The recent amendment limiting the lack of jurisdiction defense and the ruling that the Crown need not prove the actual offer or receipt of a bribe are both prosecution friendly developments. Is this the dawn of a new era of enforcement? Probably not.
These types of cases are still quite difficult to prove beyond a reasonable doubt. In Karigar, the disintegration of the business relationship between the accused and the corporate officers who were party to the conspiracy caused the accused to take drastic actions, eventually leading to inculpatory statements. Combined with the fact that management were apparently foolish enough to explicitly discuss bribery in electronic communications traceable to their company and themselves, the evidentiary landscape was unusually bountiful. This isn’t to say there won’t be more prosecutions in the future, but that they will likely be few and far between. Still, Karigar demonstrates that attempting to bribe foreign public officials is a serious offense with serious consequences (up to 14 years in jail).