Canada: Ontario Superior Court Of Justice Sentences First Individual Convicted Under The Corruption Of Foreign Public Officials Act

Last Updated: May 28 2014
Article by Wendy Berman, Arthur L. Hamilton and Jonathan Wansbrough

On May 23, 2014, the first criminal sentencing of an individual under Canada's Corruption of Foreign Public Officials Act ("CFPOA") was rendered. Mr. Justice Hackland of the Ontario Superior Court of Justice sentenced Nazim Karigar to three years in prison.

In August 2013, following a lengthy trial, Karigar was convicted on a single count indictment of offering to bribe a foreign public official contrary to section 3 of the CFPOA. Karigar was found to have played a leading role in a conspiracy to bribe officials of Air India, a corporation owned and controlled by the Government of India, and the Indian Minister of Civil Aviation, for the purpose of securing a multi-million dollar Air India contract for a biometric security system on behalf of Ottawa-based Cryptometrics Canada Limited.

The Karigar case is significant in that it represents the first time that an individual has been prosecuted, tried and sentenced under the CFPOA. During the sentencing hearing, Crown counsel characterized Karigar's offence as an elaborate and sophisticated fraud and argued that Karigar receive a sentence in the range of three to five years. Karigar's counsel argued in favour of a reformatory sentence, preferably served in the community. Karigar faced a statutory maximum of five years imprisonment as he was charged prior to the recent amendments to the CFPOA, which increased the maximum length of imprisonment to 14 years.

In its sentencing decision, the Court considered Canada's international obligation to combat the bribery of foreign public officials as a party to the OECD Convention on Combating Bribery in International Business and noted, in respect of sanctions, that:

The over-arching principle here is that bribery of foreign public officials should be subject to similar sanctions as would be applied to the bribery of Canadian public officials occurring in Canada.

In delivering the three year sentence, the Court identified various aggravating and mitigating factors. Among aggravating factors, the Court considered the quantum of the contemplated bribe, which would have involved the payment of millions of dollars in bribes and stock benefits over time, as well has other circumstances of dishonesty, including anti-competitive behaviour. In terms of mitigating factors, the Court referred to Karigar's high-level of cooperation, including that he self-reported the bribery scheme after a fall out with his co-conspirators, his age (late 60s), lack of prior criminal record and the fact that the bribery scheme was a complete failure.

After a review of the limited Canadian CFPOA jurisprudence (all guilty pleas by corporations), the Court concluded that the "bribery of foreign public officials must be viewed as a serious crime and the primary objectives of sentencing must be denunciation and deterrence." The Court also concluded that a substantial penalty must still be imposed despite cooperation with authorities.

Given that Karigar is the first person to be sentenced under the CFPOA, the Court reviewed the sentences imposed for similar crimes such as fraud, domestic bribery and corruption. In particular, the Court reviewed cases concerning the principles of sentencing and considered the circumstances favouring the imposition of a custodial or conditional sentence. It is noteworthy that the Court declined to draw guidance from UK or US sentencing guidelines stating that they are "simply inapplicable in Canada."

The Court ultimately concluded that the three year prison sentence was largely justified on the basis that Karigar played a leading role in a sophisticated bribery scheme, having personally conceived and orchestrated the bribery proposal. As a warning to future accused persons the court stated that:

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.

This first prosecution, conviction and sentencing of an individual, along with last year's amendments to the CFPOA, underscore the Government of Canada's commitment to combating bribery and corruption through a strengthened legislative regime and increased enforcement. These developments highlight the critical importance of robust compliance measures and effective risk mitigation strategies for Canadian companies and individuals conducting business abroad. An investigation or prosecution against a company, or a single individual within or associated with the company, can be very costly and cause significant business disruption and reputational damage.

For more detail on last year's amendments to the CFPOA, please see our previous e-LERTS, Proposed Amendments to the Corruption of Foreign Public Officials Act Will Have a Significant Impact on Canadian Companies Doing Business Abroad and Amendments to Canada's Foreign Corruption Laws have Arrived.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Wendy Berman
Jonathan Wansbrough
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