The first conviction of an individual entered pursuant to Canada's Corruption of Foreign Public Officials Act has been unanimously upheld by the Ontario Court of Appeal in R. v. Karigar.
This decision marks a continuation of what was the first real test of Canada's Corruption of Foreign Public Officials Act as all convictions under the Act prior to Karigar's had resulted from guilty pleas by offending corporations. In dismissing Karigar's appeal, the Court gave effect to the broad language of s. 3 of the Act, which codifies the bribery offence, confirming that an offence crystallizes, among other ways, upon an agreement to give or offer a bribe to a foreign public official being made, even if the parties to that agreement do not include the official him or herself. Both the conviction and upholding of same are the most recent examples of Canada's intention to improve its historical international reputation of being somewhat light on corruption, and affirm that the broad nature of the legislation will be given effect by the courts.
The Court of Appeal also considered whether jurisdiction over Karigar could be established given that several elements of the offence were committed outside of Canada. It was ultimately decided that territorial jurisdiction could be established. It is important to note, however, that Karigar was tried under the Corruption of Foreign Public Officials Act prior to important amendments coming into force in respect of jurisdiction in 2013. Canadian entities and individuals acting in foreign jurisdictions would be wise to note that after the 2013 amendments and currently, the Act is such that jurisdiction is determinined on a nationality and residency basis. This means that an act committed contrary to the Act by a Canadian national or permanent resident will be subject to the Act, regardless of where in the world the offence took place. That is, under the Act as currently in force, conduct by Canadian nationals and permanent residents will be deemed to have been committed in Canada in determining whether an offence has been committed.
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