For the first time in Canada, an individual has been sentenced
to jail time for bribing a foreign public official. The three-year
penitentiary sentence was handed down by the Ontario Court of
Justice under the Corruption of Foreign Public Officials
Act, SC 1998, c 34 (the "CFPOA").
The imposition of a jail sentence constitutes a major milestone
in Canada's drive towards tackling bribery in international
business ventures, and should serve as a stark reminder to all
Canadian companies active internationally of the critical
importance of having in place a strong anti-corruption compliance
In 2013, Nazir Karigar ("Mr. Karigar") was convicted
of breaching section 3(1) of the CFPO for conspiring with
employees and associates of Cryptometrics Canada Limited to bribe
officials of Air India, a state-owned Indian airline, and an Indian
Cabinet Minister in order to secure a business contract. On May 23,
2014, Mr. Karigar was sentenced to a three-year term of
Following recent amendments to the CFPOA, the maximum
sentence for the offence committed under the CFPOA is now
14 years. However, at the time Mr. Karigar committed the
CFPOA offence, the maximum sentence was only five years.
The sentence was therefore towards the higher end of the applicable
The Court found that the aggravating factors in sentencing
included: (i) the sophisticated nature of the bribery scheme; (ii)
attempts at concealment by the creation of a fake competitive bid
to create an illusion of a competitive bidding process; (iii) Mr.
Karigar's "sense of entitlement" which led to him
openly tell a Canadian trade commissioner of the bribes; and (iv)
Mr. Karigar's deep personal involvement in the scheme.
The mitigating factors included: (i) Mr. Karigar's
cooperation in the prosecution, which avoided a lengthy trial; (ii)
his prior clean criminal record; and, perhaps most interestingly,
(iii) that the bribery scheme was a "complete failure".
At first blush, the success or failure of a bribery scheme might
seem an odd factor to take into account when fixing a sentence;
however, the Court noted that because of the failure of the scheme,
the harm caused was relatively limited.
The Court's closing remarks left no room for doubt about the
serious nature of CFPOA violations:
"[a]ny 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".
Canadian Courts are clearly prepared to play their part in
delivering the message that Canada is serious about the enforcement
of its anti-corruption laws. For Canadian companies doing business
abroad the warning is clear – they must take business ethics
seriously and ensure they have clear policies and vigorous
compliance programs in place.
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In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.
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