COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arapakota, 2025 ONCA 660

DATE: 20250923

DOCKET: COA-23-CR-0075

Gillese, Monahan and Gomery JJ.A.

BETWEEN

His Majesty the King

Appellant

and

Damodar Arapakota

Respondent

Jeanette Gevikoglu and Erryl Taggart, for the appellant

Patrick McCann, Peter Mantas and Nabila Abdul Malik, for the respondent

Heard: March 10, 2025

On appeal from the acquittal entered on January 16, 2023 by Justice Rita-Jean Maxwell of the Superior Court of Justice, with reasons reported at 2023 ONSC 1567.

Gomery J.A.:

[1]          Bribery of government officials undermines democracy and fair competition. Parliament has long recognized this, yet prosecutions for such corrupt acts are relatively rare. This appeal concerns one such prosecution and turns on the interpretation of s. 3(1)(a) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (CFPOA), which criminalizes the offering or making of loan, reward, advantage or benefit to a foreign public official or for the benefit of an official, “in order to obtain or retain an advantage in the course of business”, and “as consideration for” an act or omission by that official in connection with the performance of the official’s duties or functions.

[2]          Section 3(1) of the CFPOA states:

Bribing a foreign public official 3 (1) Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official (a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or (b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.

Corruption d’agents publics étrangers 3 (1) Commet une infraction quiconque, directement ou indirectement, dans le but d’obtenir ou de conserver un avantage dans le cours de ses affaires, donne, offre ou convient de donner ou d’offrir à un agent public étranger ou à toute personne au profit d’un agent public étranger un prêt, une récompense ou un avantage de quelque nature que ce soit : a) en contrepartie d’un acte ou d’une omission dans le cadre de l’exécution des fonctions officielles de cet agent; b) pour convaincre ce dernier d’utiliser sa position pour influencer les actes ou les décisions de l’État étranger ou de l’organisation internationale publique pour lequel il exerce ses fonctions officielles.

 

[3]          The Crown alleged that the respondent, Damodar Arapakota, bribed an official with the government of Botswana by paying for the official’s family vacation in Orlando, Florida, in return for which Mr. Arapakota received letters confirming the government of Botswana’s intention to award a contract to his company and confirming the value of the prospective contract. The trial judge found that Mr. Arapakota conferred a material benefit on the official (the Orlando trip), but that the benefit was not consideration for the letters that the official later provided. She further found that the letters did not rise to the level of a material or tangible economic advantage sufficient to trigger liability under s. 3(1)(a). As a result, she acquitted Mr. Arapakota.

[4]          The Crown contends that the trial judge erred by interpreting s. 3(1)(a) in an unduly narrow way and by failing to consider the evidence as a whole. It argues that, to obtain a conviction under s. 3(1)(a), the Crown need not prove that the bribing party contemplated a specific future act or omission by a foreign official as a quid pro quo for a payment to that official. The Crown further submits that the trial judge should not have required it to prove that Mr. Arapakota received a material or tangible economic advantage in return for the alleged bribe, and that her misinterpretation of s. 3(1)(a) led her to consider the evidence in piecemeal fashion.

[5]          While I agree that the trial judge misinterpreted one of the elements of the offence at s. 3(1)(a), this error had no impact on the proper disposition of the case.

[6]          The trial judge correctly found that the Crown must prove that a person charged under s. 3(1)(a) contemplated that, in return for an advantage or benefit offered to or for the benefit of a foreign public official, they would receive a quid pro quo in the form of an act or omission by a foreign public official in connection with the performance of the official’s duties or functions. The trial judge also correctly found that the Crown must prove that the accused received or expected to receive an advantage material to their business interests in return for the unlawful benefit or payment. She erred in finding that the Crown must prove that the accused contemplated a specific act or omission by a public official at the time the bribe was offered or given. Mr. Arapakota would have been acquitted in the absence of this error, however, because the trial judge found that he obtained no meaningful benefit or advantage to his business interests in return for the Orlando trip nor was there any evidence of any material act or omission that he contemplated receiving in return. This finding was open to the trial judge to make on the evidence and this court must defer to it.

[7]          The Crown’s proposed interpretation of s. 3(1)(a) would eliminate an explicit element of the offence, that is, that the Crown prove that a material advantage or benefit was given or offered “as consideration for” an act or omission by a government official. Such an interpretation is contrary to the words in the CFPOA, read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the CFPOA, its object and the intention of Parliament. Parliament’s intent is clear, including because the text of s. 3(1)(a) contains the same “as consideration for” language found in s. 121(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, which sets out the offence of bribing a Canadian public official and which has been judicially interpreted to require an actual or contemplated quid pro quo.

[8]          The trial judge’s finding that the Crown had to prove the official conferred or offered to confer a material “advantage in the course of business” to the bribing party is likewise consistent with the approach Canadian courts have taken in domestic bribery prosecutions.

[9]          Finally, the trial judge did not err in principle in her approach to the evidence. It was open to her to conclude that the benefit conferred by the official to Mr. Arapakota did not provide him or his business with any advantage within the meaning of s. 3(1)(a). This finding does not give rise to any palpable and overriding error and is dispositive of the prosecution.

[10]       As a result, I would dismiss the appeal.

The facts as found by the trial judge

[11]       In 2015, Mr. Arapakota was the chief executive officer and chief technology officer of Imex Systems Inc., a software company specializing in developing and implementing software for e-government solutions. Mr. Arapakota had founded Imex almost 20 years earlier, and his family trust owned 100% of its shares.

Imex’s initial involvement in the Botswana Project

[12]       In December 2013, the government of Botswana embarked on the “Botswana Project”, an initiative to upgrade its capacity to deliver services electronically. It awarded the contract for the Botswana Project to a Canadian company, Public Sector Transformation Group (“PSTG”). PSTG subcontracted some of the work under the contract to Imex. It was in this context that Mr. Arapakota met Dr. Omponye “Coach” Kereteletswe, an official with the government of Botswana who was then the coordinator of e-government services and in charge of the Botswana Project.

[13]       In 2015, progress on the Botswana Project stalled due to the government of Botswana’s lack of resources and PSTG’s limited presence in Botswana. Around May 2015, Dr. Kereteletswe was removed as director of e-government services for the government of Botswana and given a role elsewhere in the government. In August 2015, Botswana terminated its contract with PSTG. Imex’s work also ended, and staff in Botswana returned to Canada.

[14]       Imex began to lobby the government of Botswana to award the remaining work on the Botswana Project (“Phase II”) to Imex. Mr. Arapakota’s primary focus, however, was collecting money that PSTG still owed to Imex for services it had performed in connection with the Botswana Project.

[15]       Meanwhile, Imex hired Michael Frank as a financial consultant to help manage the company while Mr. Arapakota was travelling. Mr. Frank focused his efforts on raising funds from investors with an eye on taking the company public.

The arrangements for the Orlando trip

[16]       During a June 2015 business trip to the United States, Dr. Kereteletswe met with Mr. Arapakota. At their meeting, Dr. Kereteletswe mentioned that he was planning another family trip to the U.S. because his children were considering pursuing their studies there. Mr. Arapakota shared with him that his daughter attended a U.S. university.

[17]       In November 2015, Dr. Kereteletswe e-mailed Mr. Arapakota to confirm that he and his family were planning to travel to New York and Boston to visit schools. He expressed interest in their children meeting. Mr. Arapakota mentioned that he had plans to travel to Orlando in December. In response, Dr. Kereteletswe changed his itinerary so that he and his family would visit New York and Orlando. Shortly after this exchange, Dr. Kereteletswe bought flights for himself, his wife and their two children to fly from Botswana to New York in December.

[18]       On November 15, 2015, Mr. Arapakota reserved hotel rooms in Orlando from December 21 to 28 for his own family and for Dr. Kereteletswe’s family. Dr. Kereteletswe testified that Mr. Arapakota made these bookings on his behalf because Dr. Kereteletswe did not have a personal credit card and because it made sense to coordinate arrangements. The trial judge was skeptical of Dr. Kereteletswe’s denial that he had a credit card but accepted his testimony in the absence of any cross-examination of him on this point or evidence to the contrary.

Botswana’s announcement of a sole source contract to Imex, the trip to Orlando, and the letters provided by Dr. Kereteletswe

[19]       On November 26, 2015, the government of Botswana publicly announced that, on the recommendation of the Permanent Secretary to the President, the Public Procurement and Development Board approved a direct appointment process to sole-source a new contract for the Botswana Project with Imex.

[20]       On December 10, 2015, Mr. Arapakota requested and received a letter from Dr. Kereteletswe confirming his government’s intention to engage Imex to implement e-government services “subject to executing a mutually acceptable agreement”. The same day, Mr. Arapakota confirmed details of both hotel and flight reservations he had made for Dr. Kereteletswe and his family in New York City and Orlando.

[21]       Mr. Arapakota, Dr. Kereteletswe and their respective families spent the Christmas holiday period in Orlando as planned.

[22]       During the holiday, Mr. Frank, the financial consultant advising Imex, sent an email to Mr. Arapakota and others saying that Imex should boost its financial statements to attract more investment. He proposed to have Imex’s auditor include unbilled revenue from future work in Imex’s year-end financials. This was not the first time that Mr. Frank had suggested anticipated revenues could be used this way. Mr. Arapakota responded that “Botswana [has] agreed to give us a letter indicating the new contract value after [the] holidays”.

[23]       On January 7, 2016, Mr. Arapakota emailed Dr. Kereteletswe requesting two letters with specific wording, which Dr. Kereteletswe provided the next day. The first letter confirmed that the government of Botswana had terminated its contract with PSTG effective August 14, 2015. The second stated that the government “intends to award and execute a software licence/maintenance and services agreement in February 2016 with Imex Systems Inc. with a total contract value of $30 million USD payable monthly over life of a three-year term”. This language was suggested by Imex’s in house counsel.

[24]       Multiple witnesses testified at trial that the only party who sought the letters or benefitted from them was Mr. Frank, who at the time had no official position within Imex. Mr. Arapakota testified that he did not support Mr. Frank’s efforts to enhance Imex’s financial statements and did not consider the letters to have any value. Imex’s finance manager, as well as Imex’s lawyer, shared this view. Imex’s auditor testified that the second January 8 letter was unnecessary because Imex could have included the anticipated unbilled revenue in its year-end financial statement based on other documents, the history of the Botswana Project and the assumption that the anticipated contract would have significant value.

[25]       Mr. Frank himself acknowledged that he wanted the second January 8 letter to “save face with investors”. He testified that a negative financial statement would not have prevented Imex from going public. Imex’s CFO at the time gave the same evidence.

[26]       Notwithstanding the receipt of the letters, Imex’s anticipated revenues from the expected contract with the government of Botswana were not included in the company’s quarterly or year-end financial statements or in an investor update circulated in January 2016, given Mr. Arapakota’s opposition to doing so.

Mr. Arapakota’s departure from Imex

[27]       Despite the announcement of the government of Botswana’s intention to award a sole source contract to Imex, no such contract ever materialized. A formal $30 million bid Imex made in 2016 was rejected. Despite Imex’s subsequent efforts to negotiate a contract worth $15 million, no agreement was reached.

[28]       In March 2018, Mr. Arapakota resigned as chief executive officer of Imex and later lost his majority shareholder stake in the company.

[29]       Following his departure, Mr. Arapakota requested repayment of a loan he allegedly made to Imex. This prompted a review of his financial dealings at the company. His expenditures on the Orlando trip came to light and were investigated. Imex ultimately referred the matter to the RCMP, and, in October 2021, Mr. Arapakota was charged with violating s. 3(1)(a) of the CFPOA.

The trial judge’s decision

[30]       After setting out the origins of the CFPOA and comparing the language of s. 3(1)(a) to the language of s. 121(1)(a) of the Criminal Code, the trial judge concluded that the Crown must prove that Mr. Arapakota:

(1)   intentionally offered or conferred a benefit, reward, or advantage to Dr. Kereteletswe,

(2)   that he did so knowing that Dr. Kereteletswe was a public foreign official;

(3)   that he knowingly or intentionally bestowed the benefit on Dr. Kereteletswe as consideration for official acts done by Dr. Kereteletswe; and

(4)   that he did so for the purpose of, or in order to obtain or retain an advantage in the course of his business (regardless of whether a business advantage was actually realized, or whether the business advantage would have been received without the consideration).

[31]       With respect to mens rea, the trial judge found that s. 3(1)(a) is a general intent offence, that is, the Crown only had to prove that Mr. Arapokota intended to do the acts making up the actus reus and did not have to prove a further motive or corrupt purpose. She emphasized, however, that s. 3(1)(a) of the CFPOA has a subjective fault element. The Crown must accordingly prove that Mr. Arapakota intended to commit the acts giving rise to the offence and had a subjective knowledge of the relevant circumstances.

[32]       The defence conceded at trial that Dr. Kereteletswe was a foreign public official and that he performed an official public function when he wrote the December 2015 and January 2016 letters. The trial judge further found that the Crown had proved that Mr. Arapakota gave Dr. Kereteletswe a material benefit by planning and paying at least $20,000 for travel, hotel, and other expenses for the Orlando trip, even though Dr. Kereteletswe later reimbursed some of this amount.

[33]       The trial judge concluded, however, that the Crown had failed to prove the two other essential elements of s. 3(1)(a): that Mr. Arapakota provided the benefit to Dr. Kereteletswe “as consideration for” an official act, and that Mr. Arapakota received “an advantage in the course of business” sufficient to ground liability under s. 3(1)(a). She noted that the Crown’s position was that:

•        The official “act or omission” that Dr. Kereteletswe performed in return for the Orlando trip was providing letters confirming the termination of a contract between Botswana and PSTG and stating Botswana’s intention to engage Imex to provide various e-government services; and

•        The “advantage in the course of business” Mr. Arapakota obtained through these letters was an assurance of Botswana’s intention to retain Imex to provide e-government services and the ability to include projected revenue from the prospective contract as unbilled revenue in its financial statements.

[34]       With respect to the consideration element, the trial judge found that the Crown must prove that Mr. Arapakota paid for the Orlando trip contemplating that there would be a specific quid pro quo, that is, that Dr. Kereteletswe would act (or omit to act) in a particular manner. The trial judge concluded that the Crown had not done so.

[35]       The trial judge reviewed the evidence regarding Mr. Arapakota’s relationship with Dr. Kereteletswe, the importance of the Botswana Project to Imex, Imex’s financial circumstances, and the temporal connection between the Orlando trip and Mr. Arapakota’s requests for letters from Dr. Kereteletswe in December 2015 and January 2016. She found that Mr. Arapakota arranged the trip before he had any idea that Imex might be awarded a sole source contract, and hence before he could have contemplated asking Dr. Kereteletswe for letters confirming such a contract:

[W]hile it is true that travel documents were exchanged and plans were finalized on December 10, 2015, the discussion and planning of the [Orlando trip] occurred at a time when Mr. Arapakota could not have contemplated asking for a letter confirming that Imex had been granted exclusive bidding rights over the Botswana Project, given that Imex had no commitment from the [Government of Botswana] of any kind until November 26, 2015.

Second, I accept Mr. Arapakota’s evidence that he did not know that the [Public Procurement and Development Board] was considering Imex as the sole source proposal for the Botswana Project until after the [Board] made its announcement on November 26, 2015.

[36]       Even if Mr. Arapakota had known or suspected that Imex was being considered for the next phase of the Botswana Project when he arranged for the Orlando trip, the trial judge noted that the Crown had not alleged that the trip was arranged as consideration for obtaining approval for a sole source contract with Imex – as noted above, the Crown’s theory was that the trip had been arranged in exchange for the added assurance that the letters provided. There was, in any event, no evidence “to suggest that Mr. Arapakota arranged the [Orlando trip] as consideration for Dr. Kereteletswe undertaking actions to have Imex engaged for phase II of the Botswana Project”.

[37]       The trial judge furthermore found that Mr. Arapakota could not have contemplated securing the December 2015 and January 2016 letters as consideration for the Orlando trip because, in Mr. Arapakota’s view, the letters were neither necessary nor even helpful to advance his business interests:

•        The December 2015 letter was a standard form letter routinely issued to confirm the award of a government contract. The trial judge found that Mr. Arapakota asked Dr. Kereteletswe for the letter only because he had not received it in due course after the November 26 announcement, and that it did nothing more than confirm what had already been announced.

•        The first January 8, 2016 letter effectively duplicated the December 2015 letter.

•        With respect to the second January 8, 2016 letter, the evidence did not establish that, when he transmitted Mr. Frank’s request to Dr. Kereteletswe on December 25, 2015, Mr. Arapakota believed that a letter specifying the value of the contract was necessary either for Imex’s financial reporting or for a potential initial public offering. The trial judge accepted Mr. Arapakota’s evidence, corroborated by other witnesses, that he in fact opposed “boosting” Imex’s revenues by including the projected value of the contract in the companies’ financial statements, and that projected revenues from the anticipated Botswana Project contract were not used in Imex’s financial statements or financial updates to investors. Imex’s auditors also testified that the second January 8 letter was unnecessary as unbilled revenues could have been declared based on other documents.

[38]       The trial judge concluded that it was Mr. Frank, not Mr. Arapakota, who wanted the letter with the $30 million figure, as Mr. Frank’s professional reputation would suffer if he could not show that Imex could be profitable.

[39]       On this same body of evidence, the trial judge concluded that the Crown failed to prove Mr. Arapakota received “an advantage in the course of business” sufficient to ground a conviction under s. 3(1)(a) as a result of getting the letters from Dr Kereteletswe.

[40]       In sum, the trial judge concluded that:

[T]he quid pro quo requirement under s. 3(1)(a) requires proof of a link between the advantage given to a public foreign official and a specific act (or omission) undertaken by the public foreign official. In my view, there is an insufficient link between Mr. Arapakota arranging the [Orlando trip] and Dr. Kereteletswe providing the three letters. A temporal connection, and the fact that the letters were generally helpful to Mr. Arapakota and Imex, does not establish the element of “as consideration for” specified in s. 3(1)(a) of the CFPOA. Further, the evidence does not establish that Mr. Arapakota perceived the letters as giving him an advantage in business, such that it can be inferred that the letters were obtained in order to obtain or retain an advantage in business.

[41]       She accordingly acquitted Mr. Arapakota.

Issues on appeal

[42]       The Crown contends that the trial judge’s interpretation of the elements of s. 3(1)(a) does not reflect Parliament’s purpose and intent in enacting it. In its submission, the trial judge overstated “the advantage in the course of business” that the accused intends to obtain or in fact obtains (the third element), and she misread the phrase “as consideration for” (the fourth element) to require the Crown to prove that the accused contemplated “a mutual agreement for a specific corrupt act or breach of trust.” In the Crown’s view, “[t]he offence is complete where: 1) the accused intentionally offers or gives a bribe, 2) to a foreign public official, 3) knowing that person is a foreign public official, and 4) with the intention of receiving any advantage in the course of business in return”. Because the trial judge misinterpreted the elements of s. 3(1)(a), argues the Crown, she failed to assess the evidence as a whole by overlooking the letters’ collective impact and the context in which they were sent.

[43]       Mr. Arapakota takes the position that the trial judge correctly interpreted s. 3(1)(a), given the language of the offence and judicial interpretation of s. 121(1)(a) of the Criminal Code, which contains similar language. He further contends that the trial judge made no reversible error in her assessment of the evidence.

[44]       There are three questions to resolve on this appeal:

1.    Did the trial judge err in interpreting s. 3(1)(a) of the CFPOA to require evidence that a quid pro quo, in the form of an act or omission by an official in connection with the performance of the official’s duties or functions, was contemplated in return for a loan, reward, advantage or benefit offered or given to or for the benefit of the official?

2.    Did the trial judge err in interpreting s. 3(1)(a) of the CFPOA to require the Crown to prove that the accused intended to receive a material or tangible economic advantage in the course of business?

3.    Did the trial judge err in law by failing to consider the evidence as a whole?

[45]       The Crown does not challenge the trial judge’s mens rea analysis. It does not take issue with her conclusion that s. 3(1)(a), although a general intent offence, requires the prosecution to prove that Mr. Arapakota acted intentionally in respect of the elements of the offence, while having a subjective knowledge of the relevant circumstances.

[46]       No appellate court has considered the elements of the s. 3(1)(a) offence that are at issue on this appeal. I will therefore begin by reviewing the history of Canada’s legislation criminalizing the bribery of public officials, the genesis and content of the CFPOA, and the applicable principles of statutory interpretation.

Canada’s domestic anti-bribery legislation

[47]       Section 121(1)(a) of the Criminal Code states:

121 (1) Every one commits an offence who (a) directly or indirectly (i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or (ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with (iii) the transaction of business with or any matter of business relating to the government, or (iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

121 (1) Commet une infraction quiconque, selon le cas : a) directement ou indirectement : (i) soit donne, offre ou convient de donner ou d’offrir à un fonctionnaire ou à un membre de sa famille ou à toute personne au profit d’un fonctionnaire, (ii) soit, étant fonctionnaire, exige, accepte ou offre ou convient d’accepter de quelqu’un, pour lui-même ou pour une autre personne, un prêt, une récompense, un avantage ou un bénéfice de quelque nature que ce soit en considération d’une collaboration, d’une aide, d’un exercice d’influence ou d’un acte ou omission concernant : (iii) soit la conclusion d’affaires avec le gouvernement ou un sujet d’affaires ayant trait au gouvernement, (iv) soit une réclamation contre Sa Majesté ou un avantage que Sa Majesté a l’autorité ou le droit d’accorder, que, de fait, le fonctionnaire soit en mesure ou non de collaborer, d’aider, d’exercer une influence ou de faire ou omettre ce qui est projeté, selon le cas;

[48]       There are further anti-corruption offences at subsections 121(1)(b) to (f). I will refer to some of them in these reasons. The full text of s. 121 is attached as an appendix to these reasons.

[49]       The terms “consideration” and “advantage” are undefined in s. 121(1) or more generally in the Criminal Code.

[50]       Domestic anti-bribery provisions have a long history. Canadian law recognized over 130 years ago that attempts to gain an advantage through the corruption of public officials is morally blameworthy conduct that merits criminal sanction. A provision criminalizing “Frauds upon the Government” appeared as s. 133 of the first Criminal Code: Criminal Code, 1892, 55-56 Vic., c. 29. Subsection (a) as then worded focused on the intent of the person offering or giving “compensation or consideration” to influence a government employee:

133. Frauds upon the Government

Every one is guilty of an offence and liable to a fine of not less than one hundred dollars, and not exceeding one thousand dollars, and to imprisonment for a term not exceeding one year and not less than one month, and in default of payment of such fine to imprisonment for a further time not exceeding six months who—

(a.) makes any offer, proposal, gift, loan or promise, or who gives or offers any compensation or consideration, directly or indirectly, to any official or person in the employment of the Government, or to any member of his family, or to any person under his control, or for his benefit, with intent to obtain the assistance or influence of such official or person to promote either the procuring of any contract with the Government, for the performance of any work, the doing of any thing, or the furnishing of any goods, effects, food or materials, the execution of any such contract, or the payment of, the price, or any part thereof, or of any aid or subsidy, payable in respect thereof;

[51]       The provision was re-enacted as s. 158 in the Criminal Code, R.S.C. 1906, c. 146, and again in the Criminal Code, R.S.C. 1927, c. 36, substantially unchanged.^[1]

[52]       In the Criminal Code, 1953-54, c. 51, the offence of bribing a public official was reenacted as s. 102(a) and its language was significantly altered to capture only a gift, offer or agreement with a government official made “as consideration for cooperation, assistance, exercise of influence or an act or omission”. The more precise language (including the more technical use of “consideration”, which previously appeared in the provision but for a different purpose) suggests an intent to clarify the offence by specifying its elements, consistent with the terms of reference pursuant to which the Code was revised at the time.

[53]       Section 102 was eventually re-enacted as s. 121 in the Criminal Code, R.S.C. 1985, substantially unchanged.^[2]

[54]       In 2007, subsections 121(1)(b) to (f) were amended pursuant to s. 5 of An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption, S.C. 2007, c. 13. The changes effected by this statute aligned the language of these provisions with s. 121(1)(a) by providing that corruption offences in the Criminal Code can be committed directly or indirectly and are committed whether the benefit is conferred on an official or on another person for the benefit of the official. The language of s. 121(1)(a) remained unchanged.

[55]       In 2019, subsection 121(3) was amended to make the offence a hybrid one. As a result, a person who contravenes s. 121 is either guilty of an indictable offence and liable to imprisonment for a term of not more than five years, or an offence punishable on summary conviction.

The genesis and substance of the Corruption of Foreign Public Officials Act

[56]       Parliament passed the CFPOA in 1998. Its preamble states that it furthers the implementation of the Organization for Economic Co-Operation and Development (OECD)’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which Canada signed in 1997.

[57]       The Convention’s stated intention is to prevent the solicitation of bribes not only on a national level but through adoption by OECD members of equivalent measures to prevent bribery in the context of international business transactions. As described in its preamble, “[B]ribery is a widespread phenomenon in international business transactions, including trade and investment, which raises serious moral and political concerns, undermines good governance and economic development, and distorts international competitive conditions;”. This is consistent with the recognition in World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 1, that corruption often transcends borders, and therefore compels a concerted international effort to combat it.

[58]       Article 1(1) of the Convention states that:

Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.

[59]       Article 3 of the Convention mandates that the bribery of a foreign public official “shall be punishable by effective, proportionate and dissuasive criminal penalties”, comparable to those applicable for the bribery of the signatory’s own public officials.

[60]       The Convention states that the legislation to be implemented pursuant to Article 1(1) should ideally have an extraterritorial reach. Article 4 provides that, in addition to taking measures to establish their jurisdiction over bribery offences committed in whole or in part on their territory, parties that have “jurisdiction to prosecute [their] nationals for offences committed abroad shall take such measures as may be necessary to establish [their] jurisdiction to do so in respect of the bribery of a foreign public official, according to the same principles”. In conjunction with enacting legislation criminalizing the bribery of foreign public officials, signatories to the Convention undertook to take measures to combat money laundering and false accounting.

[61]       The CFPOA in its current form largely reflects these commitments.[3] As already seen, s. 3(1) criminalizes the bribery of a foreign public official. Section 4 enacts a related offence where a person engages in creative or fictitious accounting maneuvers for the purpose of bribing a foreign public official contrary to s. 3(1). Under s. 5(1)(c) of the CFPOA, the bribery of an official outside of Canada is deemed to occur in Canada if the bribing party is a Canadian citizen, a permanent resident, or “a public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province”.

[62]       A person who contravenes either s. 3 or s. 4 is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Relevant principles of statutory interpretation

[63]       As stated in R. v. Karigar, 2017 ONCA 576, 350 C.C.C. (3d) 141, at para. 42, leave to appeal refused, [2017] S.C.C.A. No. 385:

The now well-established approach to statutory interpretation requires examining the words of the provision in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament: see Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at para. 21 and, more recently, R. v. Paterson, 2017 SCC 15, 35 C.R. (7th) 229, at para. 31.

[64]       As a result, the “plain meaning [of the text] alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant legal norms”: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31; see also R. v. Kinamore, 2025 SCC 19, 503 D.L.R. (4th) 385, at para. 66; Piekut v. Canada (National Revenue), 2025 SCC 13, 502 D.L.R. (4th) 1, at para. 45.

[65]       The modern approach to statutory interpretation draws on certain fundamental principles relevant to the issues on this appeal.

[66]       First, all legislation is “deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: Interpretation Act, R.S.C. 1985, c. I-21, s. 12.

[67]       Second, legislation is presumptively enacted “to comply with constitutional norms, including the rights and freedoms enshrined in the [Canadian Charter of Rights and Freedoms]”. This presumption “acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. Accordingly, where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted”: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 35.

[68]       A related principle is that, if the text of a penal statute contains real ambiguities, they should be resolved in favour of the person subject to prosecution. “If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication”: Marcotte v. Deputy Attorney General (Canada), [1976] 1 S.C.R. 108, at p. 115; see also R. v. Paré, [1987] 2 S.C.R. 618, at pp. 629-30; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 55.

[69]       Third, Parliament is assumed to legislate coherently. “Statutes enacted by a legislature that deal with the same subject are presumed to be drafted with one another in mind, so as to offer a coherent and consistent treatment of the subject”: Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022), at § 13.04. Lamer C.J.C. referred to the presumption of coherence in Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at para. 61, stating: “There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means that interpretations favouring harmony among those statutes should prevail over discordant ones”.

[70]       Accordingly, when interpreting provisions in penal statutes, “[r]eference to the language of other provisions which create closely related criminal offences can provide interpretative assistance”: R. v. Greenwood (1991), 5 O.R. (3d) 71 (C.A.), at p. 89, citing R. v. Buzzanga (1979), 25 O.R. (2d) 705, at pp. 715-21. A court may also consider other domestic laws on the same subject, particularly if they contain similar language, and weigh how this language has been interpreted.^[4]

[71]       Fourth, where legislation is enacted further to Canada’s international treaty obligations, it should be interpreted in a manner consistent with such obligations, “insofar as the text allows”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316, at para. 26 (“Quebec v. Directrice”). In R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53, LeBel J., writing for the majority, expanded on the rationale underlying this “presumption of conformity”:

The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. … [T]he legislature is presumed to act in compliance with Canada's obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. [Citations omitted.]

[72]       The presumption is rebuttable, because “Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation”: Quebec v. Directrice, at para. 53.

[73]       Even where a statute is explicitly enacted pursuant to international obligations, however, these obligations are not the starting point of the interpretive analysis. The Supreme Court emphasized in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, [2022] 2 S.C.R. 303, at paras. 47-48, that the presumption of conformity is simply one of various interpretive tools designed to discern the will of Parliament (as opposed to the federal executive):

The task remains to give effect to legislative intent. The separation of powers requires that courts give effect to a statute that demonstrates legislative intent not to comply with treaty obligations. Negotiation, signing, and ratification of treaties are acts of the executive. Once ratified, treaties do not automatically become part of domestic law; rather, they are given effect through domestic legislation.

Accordingly, while a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “[i]nternational law cannot be used to support an interpretation that is not permitted by the words of the statute”. [Citations omitted.]

[74]       The Chief Justice reiterated this important qualification to the presumption of conformity at para. 26 of Quebec v. Directrice:

While the interpretive weight of [an] international instrument is undeniable, I note that the analysis must remain focused on the legislature’s intention and not on the obligational content of the treaty. It is imperative to interpret first and foremost “what the legislature (federally and provincially) has enacted” rather than subordinating the result of this exercise to what the federal executive has agreed to internationally or to the international treaties by which a provincial executive has declared its intention to be bound through an order in council. This is a matter of respect for the principle of separation of powers….

[75]       This brings us back to where we started. Legislative intent as disclosed by the text, context and purpose of the law is at the centre of the modern approach to statutory interpretation. The principles I have reviewed are relevant to assist in discerning that intent where the words of a statute are ambiguous or capable of bearing competing interpretations. All of this is in service to the interpretation of the words used in a statute. Interpretive principles cannot be used to rewrite statutory language. As Lebel J. observed in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715, at para. 23:

Reference to the purpose of the provision “cannot be used to create an unexpressed exception to clear language”. Where, as in this case, the provision admits of more than one reasonable interpretation, greater emphasis must be placed on the context, scheme and purpose of the Act. Thus, legislative purpose may not be used to supplant clear statutory language, but to arrive at the most plausible interpretation of an ambiguous statutory provision. [Citations omitted.]

[76]       As pithily stated in MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39, “the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective, not to achieve the objective ‘at all costs’”.

Section 3(1)(a) requires evidence of a contemplated quid pro quo

[77]       Like the trial judge, I find that the words “as consideration for” in s. 3(1)(a) of the CFPOA require that the person offering or making the bribe to a foreign public official received or at least contemplated a quid pro quo in the form of an act or omission by the official in connection with the performance of their duties or functions. The Crown must establish the individual who gave or offered to give the benefit did so intending that it would prompt the official to act (or not act) on their behalf such that the individual would obtain an advantage to which they might not otherwise be entitled.

[78]       This interpretation is consistent with the language of s. 3(1)(a), read in its grammatical and ordinary sense in the context of the CFPOA and the scheme of anti-bribery legislation as a whole, as well as judicial interpretation of domestic anti-bribery offences. Based on guidance from the Supreme Court on the interpretation of the same phrasing in s. 121(1)(a) of the Criminal Code, the wording of s. 3(1)(a) unequivocally requires that the Crown prove that the person offering the bribe to a foreign official intended to benefit from an act or omission in return. This is what distinguishes the offence created at s. 3(1)(a) from the offence created at s. 3(1)(b), just as the offence at s. 121(1)(a) of the Criminal Code comprises different elements than s. 121(1)(b).

[79]       I disagree with the trial judge’s finding that s. 3(1)(a) of the CFPOA requires proof of a link between the advantage given to a foreign public official and “a specific act (or omission)” undertaken by the foreign public official. In my view, the precise act or omission that a foreign official may eventually be called upon to perform need not be specifically contemplated when the bribe is offered or made.

[80]       That being said, as explained later in these reasons, I see no error in the trial judge’s analysis of the evidence, nor in her interpretation of the term “advantage”. Since these findings mandated an acquittal, the error in the trial judge’s interpretation of s. 3(1)(a) did not impact the outcome of the trial.

The text of s. 3(1)(a)

[81]       Both subsections 3(1)(a) and (b) require the Crown to prove that, in order to obtain or retain an advantage in the course of business, the accused directly or indirectly gave, offered, or agreed to give or offer, a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official. In the prosecution of a s. 3(1)(a) offence, however, the Crown must further prove that the gift, offer, or agreement was made:

as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions. [Emphasis added.]

[82]       Under s. 3(1)(b), by contrast, the Crown must prove that the gift, offer or agreement was made:

to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.

[83]       As a matter of statutory interpretation and simple common sense, the phrase “as consideration for” in subsection (a) must be taken to mean something.

[84]       In a contractual context, consideration is the price that is paid to buy a promise: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd, [1915] A.C. 847 (H.L.), at p. 855 (per Lord Dunedin), citing Pollock on Contracts, 8th ed., at p. 175. The Merriam-Webster Dictionary defines “consideration” in law as “the inducement to a contract or other legal transaction” and, specifically, “an act or forbearance or the promise thereof done or given by one party in return for the act or promise of another”. In practical terms, consideration “distinguishes purely gratuitous promises from those which resemble a bargain, or tie a provided promise to some contingency, or direction of value, involving the promisee”: Michael Ilg, “Contract Variation and Changed Expectations”, (2020) 66:1 McGill L.J. 175, at p. 180.

[85]       Accordingly, in isolation, the phrase “as consideration for” in s. 3(1)(a) of the CFPOA implies that the person offering or giving a benefit or payment to a foreign public official is doing so on the promise or expectation that the official will do (or not do) something in return.

The interpretation of “as consideration for” in domestic anti-bribery legislation

[86]       No appellate court has interpreted the phrase “as consideration for” as used in s. 3(1)(a) of the CFPOA. As noted by the trial judge, the language of s. 3(1)(a) mostly overlaps with the language that establishes a bribery offence in s. 121(1)(a) of the Criminal Code, as this side-by-side comparison shows:

CFPOA, s. 3(1)(a)	Criminal Code, s. 121(1)(a)
Every person commits an offence who	Every one commits an offence who
in order to obtain or retain an advantage in the course of business
directly or indirectly gives, offers, or agrees to give or offer	directly or indirectly gives, offers or agrees to give or offer
a loan, reward, advantage or benefit of any kind	a loan, reward, advantage or benefit of any kind
to a foreign public official or to any person for the benefit of a foreign public official	to an official or to any member of his family, or to any one for the benefit of an official
as consideration for	as consideration for
an act or omission by the official in connection with the performance of the official’s duties or functions	cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the government, or a claim against her Majesty or any benefit that Her Majesty is authorized or entitled to bestow

 

[87]       This largely parallel wording is deliberate. When the CFPOA was debated in the Senate, the Minister of Justice at the time confirmed that the wording of s. 3(1) was taken from the Criminal Code, “so that the case law under that statute would be applicable”: Canada, Debates of the Senate, 36th Parl., 1st Sess., Vol. 137, No. 100 (3 December 1998), at p. 2304. In Canada’s 1999 report to the OECD, the federal government likewise confirmed that the wording of s. 3(1)(a) represented “an effort to marry the Convention wording and requirements with wording that was found already in paragraph 121(1)(a) of Canada’s CriminalCode”: OECD, Review of Implementation of the Convention and 1997 Recommendation Phase 1 Report: Canada (1999), at p. 1.

The interpretation of “as consideration for” in domestic anti-bribery offences

[88]       The meaning of “as consideration for” in s. 121(1)(a) was considered by this court in Greenwood; and by the Supreme Court of Canada in R. v. Hinchey, [1996] 3 S.C.R. 1128; and R. v. Cogger, [1997] 2 S.C.R. 845. In each case, this language was found to require proof of an actual or contemplated quid pro quo.

[89]       In Greenwood, the Crown alleged that Greenwood, who had a business defending individuals charged with provincial traffic offences, purchased a cable television subscription for a lawyer (Tsinonis) who worked for the Province of Ontario prosecuting those same offences. Greenwood’s company paid for the subscription. Greenwood was charged under s. 121(1)(b) of the Criminal Code, which at that time provided that a person committed an offence where:

having dealings of any kind with the government, [the person] pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals … with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him.

[90]       Tsinonis was charged under the mirror offence at s. 121(1)(c), which criminalized:

being an official or employee of the government, [a person] demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly [unless he has consent in writing from his employer].

[91]       Both men were acquitted at trial. The trial judge found that Greenwood and Tsinonis were close friends, that the gift was one made from one friend to another, and that it had nothing to do with the professional relationship between them. The trial judge further found that the gift did not result in any special treatment by Tsinonis, nor was it contemplated by either accused that Greenwood would receive any special treatment when the gift was made.

[92]       The Court of Appeal dismissed the Crown’s appeal of the acquittals. The focus of most of its analysis was the interpretation of s. 121(1)(c) and, in particular, what kind of “advantage or benefit” a government official or employee must receive to attract criminal liability. In determining where to draw the line between acceptable gift giving and bribery, Doherty J.A., at p. 91, contrasted the language of s. 121(1)(c) with the language of other s. 121(1) offences:

A comparison of the language of s. 121(1)(c ) with the other offences created by s. 121, save s. 121(1)(b ), reveals a clear distinction between those offences and s. 121(1)(c ). Broadly stated, s. 121(1)(a ), (d ), (e ) and (f ) all require that a benefit be given or received as consideration for doing something in connection with the affairs or business of government … Each of the offences created by these subsections requires proof of a quid pro quo and involves corruption in its most obvious form.

[93]       He emphasized again, at p. 92, that a s. 121(1)(a) offence requires proof of an actual or contemplated quid pro quo, due to the “as consideration for” language:

Section 121(1)(c ) does not contain the phrase “as consideration for” or any equivalent language. The absence of such language clearly indicates to me that the fault requirement in s. 121(1)(c ) differs from that found in those other sections … The difference rests in the absence of any requirement in s. 121(1)(c ) that the recipient of a benefit intends to do something in return for the benefit. The corrupt state of mind inherent in the “something for something” nature of the offences created by s. 121(1)(a ), (d ), (e ) and (f ) is not present in s. 121(1)(c ). [Citation omitted.]

[94]       Based on this analysis, Doherty J.A. concluded that the trial judge erred in finding that the Crown had to prove that Tsinonis had a corrupt purpose in accepting the gift from Greenwood to secure a conviction under s. 121(1)(c). He nonetheless concluded that the appeal should be dismissed because, based on the trial judge’s determinations of fact, the gift was not an advantage or benefit captured under that provision but rather a simple gift between friends.

[95]        A similar question arose in Hinchey. Hinchey, an engineer employed by the Newfoundland provincial transportation department, was charged with contravening s. 121(1)(c). A road construction company with provincial and municipal contracts put Hinchey’s wife on the payroll as a standby flag person for several months. She was never asked to work but received $7,400 in payments by cheque delivered to her or Hinchey personally. The company also provided her with a record of employment that allowed her to claim unemployment insurance benefits.

[96]       Following a jury trial, Hinchey was convicted of violating s. 121(1)(c).[5] His appeal was dismissed by the Newfoundland Court of Appeal but granted by the Supreme Court, on the basis that the trial judge made errors of law in his charge to the jury and intervened inappropriately in counsel’s conduct of the trial.

[97]       The focus of the Supreme Court’s analysis in Hinchey was the mental state of an official who accepted a payment. L’Heureux-Dubé J., who wrote the majority reasons, and Cory J., who wrote concurring reasons, agreed that the Crown must prove the giving of a “commission, reward, advantage or benefit of any kind” by a person having “dealings with the government”, and its receipt by a government employee, without the approval of the government employee’s superior. They also agreed that the official must have intentionally decided to accept a benefit.

[98]       The panel split, however, on whether proof of a “corrupt intention” on the part of an official was required to ground a conviction under s. 121(1)(c): Hinchey, at paras. 6, 77-78. The majority concluded that there was no such requirement based on the text of s. 121(1)(c), particularly when read in the context of the offence’s purpose. The purpose of s. 121(1)(c) is the protection of the appearance of integrity on the part of government employees, and this can be undermined by the acceptance of an illicit payment by a government employee regardless of any contemplated consequence.

[99]       In reaching this conclusion, the majority contrasted the purpose of s. 121(1)(c) with that of s. 121(1)(a). L’Heureux-Dubé J. observed, at para. 21, that the purpose of s. 121(1)(a) was “to preserve the actual integrity of government employees by deterring them from taking benefits in return for giving or promising some sort of reward to the benefactor” (emphasis in original). While subsection (a), like (c), did not require proof that the benefactor ultimately received anything in return, benefits captured by s. 121(1)(a) must be “given for an ulterior purpose”.

[100]   Finally, in Cogger, the Supreme Court considered the elements that must be proved in a prosecution of an official charged under s. 121(1)(a).

[101]   While practising as a lawyer, Cogger had been paid by a client to lobby various levels of government to obtain grants in favour of his client’s companies. Though his efforts never paid off, he was charged with contravening s. 121(1)(a) when he continued these activities after he had been appointed to the Senate of Canada. Cogger was acquitted at trial on the basis that the Crown failed to prove he had the mens rea required to commit the offence. In arriving at this conclusion, the trial judge relied on evidence that, once appointed to the senate, Cogger openly continued activities on his client’s behalf that were identical to those he conducted before his appointment. The trial judge reasoned that the lack of secrecy weighed against finding Cogger had acted with the necessary “moral turpitude” to obtain a conviction under s. 121(1)(a). The Quebec Court of Appeal dismissed the Crown’s appeal. The Supreme Court granted the Crown’s further appeal and ordered a new trial.

[102]   L’Heureux-Dubé J., now writing for a unanimous court, found the trial judge erred in its assessment of the mens rea requirement. She held that, to obtain the conviction of a public official under s. 121(1)(a), the Crown must prove that the official knew he was an official; that he intentionally demanded or accepted a loan, reward, advantage or benefit of any kind for himself or another person; and that this reward was in consideration for cooperation, assistance or exercise of influence in connection with the transaction of business with or relating to the government. It did not have to prove that the official had any corrupt intent beyond this.

[103]   In the course of her analysis, L’Heureux-Dubé J. confirmed that s. 121(1)(a) contemplates situations where a government employee’s integrity has been compromised by their entering into a quid pro quo arrangement, regardless of whether they acted pursuant to a corrupt intent, writing at para. 20 of Cogger that:

For an offence under s. 121(1)(a) to be committed, an accused will have agreed to deal with the government on another’s behalf for consideration. Contrary to what the respondent submits, it is not necessary for the official to believe his or her integrity has been compromised. On the contrary, this automatically follows from the engaging in of the prohibited quid pro quo action: [Greenwood, at p. 91]. As Hinchey indicates, s. 121(1)(c) is markedly different, in that the recipient of the benefit need commit no additional action; it is the appearance of integrity with which that provision is most concerned. [Emphasis in original.]

[104]   In other words, the Crown must show a contemplated or actual reciprocal deal as an essential element of a s. 121(1)(a) offence. At para. 22, L’Heureux-Dubé J. again stated unequivocally that “the object of s. 121(1)(a) is to prevent government officials from taking benefits from a third party in exchange for conducting some form of business on that party’s behalf with government. The essence of the section, therefore, is the quid pro quo arrangement, which is not a required element under s. 121(1)(c)” (emphasis added).

Analysis

[105]   There is no basis, in my view, to reject the repeated affirmation by this court and the Supreme Court in Greenwood, Hinchey and Cogger that “as consideration for” signifies an actual or contemplated quid pro quo in the context of a bribery offence. This accords with the plain meaning of the words of s. 3(1)(a) of the CFPOA, which closely resemble those of s. 121(1)(a) of the Criminal Code. The CFPOA and the Criminal Code each create separate offences for bribery of a public official in consideration for an official act or omission (s. 3(1)(a) and s. 121(1)(a) respectively), and bribery for the purpose of obtaining influence (s. 3(1)(b) and s. 121(1)(b)). Parliament chose to include a consideration element in the first type of offence but not the second. This distinction cannot be ignored.

[106]   Where the wording of s. 3(1)(a) differs from that of s. 121(1)(a), this discrepancy does not undercut the common quid pro quo requirement. On the contrary, it emphasizes it.

[107]    First, under s. 3(1)(a), the Crown must prove that the accused expected that they would receive the benefit of an act or omission by a foreign official that would allow them “to obtain or retain an advantage in the course of business”. This language, absent from s. 121(1)(a) is consistent with an expectation of an official act or omission in return for a bribe, that is, a quid pro quo arrangement.

[108]   Second, in a s. 3(1)(a) prosecution, the Crown must prove that a payment to or for the benefit of a foreign official was given or offered as consideration for “an act or omission by the official in connection with the performance of the official’s duties or functions”. Under s. 121(1)(a), the prosecution has more latitude. It may obtain a conviction not only if the purpose of giving or offering a bribe was as consideration for “an act or omission in connection with the transaction of business with or any matter of business relating to the government”, but also potentially for “cooperation, assistance, exercise of influence” or “an act or omission in connection with a claim against her Majesty or any benefit that Her Majesty is authorized or entitled to bestow”. In Cogger, at para. 17, the Supreme Court held that nothing in s. 121(1)(a) indicates that “a finding of guilt requires a determination that the gift was given with the purpose of having the employee use his influence as an official in dealing with government” [emphasis added]. The narrower and more precise language in s. 3(1)(a), in contrast, requires that payment was made in contemplation of an act or omission by a foreign official qua official.

[109]   Although this could result in a greater burden for the prosecution under s. 3(1)(a), this is not unreasonable given that a CFPOA conviction potentially attracts a much more severe punishment than a conviction for domestic bribery. A conviction under s. 121(1)(a) attracts a maximum sentence of 5 years, or slightly more than a third of the maximum sentence of 14 years under the CFPOA.

[110]   The Crown argues that the trial judge’s interpretation of “as consideration for” effectively adds an element that it must prove beyond the elements set out in Article 1(1) of the Convention. It contends that, to give effect to the Convention, s. 3(1)(a) should require only that the accused intended to obtain an advantage in business, as opposed to a corrupt act in return for the benefit it has offered or given to the public official. In its submission, adding a quid pro quo element would be contrary to the OECD Commentaries, which provide that “[a] Party may use various approaches to fulfil its obligations, provided that conviction of a person for the offence does not require proof of elements beyond those which would be required to be proved if the offence were defined as in this paragraph.” The Crown would thus have us read down or read out entirely the “as consideration for” language in s. 3(1)(a) to avoid imposing a requirement that goes beyond those in Article 1(1).

[111]   I do not find this argument persuasive.

[112]   Article 1(1) requires signatories to make it a criminal offence for a person to offer, promise or give an advantage to a foreign public official “in order that” the official act or refrain from acting in relation to the performance of official duties. There is no explicit reference to “consideration”. I do not agree, however, that the text of s. 3(1)(a) of the CFPOA introduces an element beyond the elements set out in the undertaking at Article 1(1) of the Convention. For ease of reference, that undertaking states:

Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.

[113]   I see no real difference in requiring the Crown to prove that a person made or offered to give a public official an advantage “in order that the official act or refrain from acting in relation to the performance of official duties” as is stated in Article 1(1), and requiring it to prove that the advantage was offered or made “as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions”, as is stated in s. 3(1)(a). Whatever language is used, the prosecution must show that the advantage offered or given was intended to bring about a specific result in the form of an act or omission by an official.

[114]   Furthermore, to the extent that the language of s. 3(1)(a) departs from the language in the Convention, s. 3(1)(b) of the CFPOA must also be taken into account. It establishes an offence that does not require the Crown to prove that a payment was made “in consideration for” an act or omission. As the trial judge pointed out, had the Crown charged Mr. Arapakota under this subsection, the outcome of the prosecution may well have been different, “given the arguably broader scope of conduct it captures”.

[115]   The Crown’s second argument is that the trial judge’s interpretation of s. 3(1)(a) as requiring proof that the accused contemplated a “specific act (or omission)” by the public official is unduly narrow and inconsistent with how the courts have interpreted the quid pro quo requirement in s. 121(1)(a) of the Criminal Code. A person offering a bribe to a foreign public official may intend that it will be consideration for an act or omission without contemplating exactly what act or omission they may later request in return for the payment. An offence has nonetheless been committed, since, as courts have held with respect to s. 121(1)(a), “no actual return need be made to be trapped under the section”: Hinchey, at para. 21; see also Karigar, at para. 43. Requiring the Crown to prove an intent to cause a specific result achieves nothing except to make it more difficult to secure a conviction.

[116]   I agree with the Crown that requiring evidence that an advantage was offered or given in contemplation of a specific act or omission undertaken by the foreign public official unduly narrows the scope of s. 3(1)(a) of the CFPOA. The modest number of prosecutions brought under either s. 3(1)(a) of the CFPOA or s. 121(1)(a) of the Criminal Code illustrates the challenges inherent in proving bribery offences. There is no reason why the Crown should be required to establish that a person offering or making a payment to a foreign official foresaw the precise act or omission they would seek from the official in return. It would suffice to show that the person expected a quid pro quo, in the form of a future act or omission by the official qua official, that would advance their business interests.

[117]   I am, however, unable to accept the Crown’s proposed interpretation of s. 3(1)(a), which would require me to read out some of Parliament’s chosen words entirely. As observed by L’Heureux-Dubé J., “judges should not attempt to rewrite a statute under the guise of interpreting it”: Hinchey, at para. 36. As I have found, the text of s. 3(1)(a) – which includes a requirement that a benefit be offered or conferred “as consideration for” an act or omission – is unambiguous when read in the context of its purpose and the overall statutory scheme to prevent bribery, including s. 121(1) of the Criminal Code.

[118]   I am also unconvinced that the Crown’s interpretation would make prosecutions significantly easier. Anti-bribery cases are almost always circumstantial; individuals offering or making illicit payments rarely record their activities in a contract or explicit chain of communications. Their intention to gain an unfair advantage is usually inferred from the circumstances in which a payment is made, or benefit conferred. The CFPOA recognizes this, by criminalizing not only bribing foreign officials but also taking steps to conceal this activity through false bookkeeping.

[119]   Plus, as already noted, the Crown has the option of charging under s. 3(1)(b), which does not require evidence that the maker of a payment to a foreign official contemplated any specific future act or omission, but simply that the official would use their position “to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions”. I agree with the trial judge that this subsection’s broader language might well capture situations that do not meet the evidentiary requirements of s. 3(1)(a).

[120]   I accordingly conclude that s. 3(1)(a) of the CFPOA requires the Crown to prove that, for the purpose of obtaining or retaining an advantage in business, an accused offered or gave a foreign public official a benefit contemplating that, in exchange, the public official would act or omit to act in connection with the performance of their official duties.

The trial judge did not err in her interpretation of the meaning of “advantage” in s. 3(1)(a)

[121]   In my view, the trial judge correctly concluded that, to secure a conviction under s. 3(1)(a), the Crown must prove that the accused received a material or tangible gain, or a material economic advantage (or contemplated that they would receive such a gain or advantage) when offering or giving or agreeing to give a benefit to a foreign public official. I reject the Crown’s argument that “an advantage in the course of business” means any advantage at all.

[122]   As the trial judge noted, the term “advantage” appears twice in s. 3(1)(a). The Crown must prove that a foreign public official received or was offered a “loan, reward, advantage or benefit of any kind”; and it must have been offered by the accused “in order to obtain or retain an advantage in the course of business”. “Advantage” is not defined in the CFPOA, and an “advantage in the course of business” has not been judicially considered. In light of this, the trial judge relied on cases interpreting the word “advantage” in the phrase “loan, reward, advantage or benefit of any kind” in s. 121(1)(a) of the Criminal Code.

[123]   I agree that the meaning of the word “advantage” as used in relation to the advantage offered or given to a public official in s. 121(1)(a) is relevant to determining what type of advantage a bribing party must receive or expect to receive to attract liability under s. 3(1)(a), for several reasons.

[124]   First, the same policy consideration drives the interpretation of both types of advantage. A criminal sanction should not be imposed for a benefit received “which is so minimal it clearly does not warrant such a harsh reprisal”: Hinchey, at para. 58. The words “benefit” and “advantage” by themselves could capture a wide variety of conduct, and it would be clearly absurd, and contrary to Charter values, to conclude that Parliament intended a trivial or de minimis benefit would attract criminal liability. As a result, the words “benefit or “advantage” in s. 121(1)(a) encompass a situation only where the beneficiary of a bribe secured (or intended to secure) a “material or tangible gain”: Hinchey, at paras. 58-59.

[125]   This policy is that much more compelling in the context of a s. 3(1)(a) prosecution, given that a conviction may attract a 14-year prison sentence. Parliament could not have intended to impose such a draconian sentence based on the receipt of an advantage in the course of business that is materially insignificant.

[126]   Second, there is no good reason why the meaning of the term “advantage” in the anti-bribery provision in the Criminal Code would be any different than the meaning of the same word in the CFPOA. Both provisions establish criminal offences for the purpose of preventing the bribery of government officials using, for the most part, the same text. The overarching purpose of s. 121 is “to maintain the integrity of the government and the appearance of government integrity” in order to promote “merit-based, impartial government decision making”: R. v. Carson, 2017 ONCA 142, 347 C.C.C. (3d) 164, at para. 30, aff’d 2018 SCC 12, [2018] 1 S.C.R. 269, citing R. v. Giguère, [1983] 2 S.C.R. 448 and Hinchey, at paras. 13, 16-17. This is consistent with the Convention’s goals and the legislature’s intent in enacting s. 3(1)(a) of the CFPOA.

[127]   Parliament is presumed to legislate coherently. Accordingly, an “advantage” should be interpreted in the same way for the purpose of the CFPOA as it has been for the purpose of s. 121(1)(a) of the Criminal Code: see Pointe-Claire, at para. 61; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 52. Although the “advantage” in s. 3(1)(a) under consideration in this appeal is “an advantage in the course of business” as opposed to a “loan, reward, advantage or benefit of any kind”, the presumption of consistent expression applies where the same word is used throughout a statute, particularly when they appear close together: Thomson v. Canada (Department of Agriculture), [1992] 1 S.C.R. 385, at pp. 400-401; R. v. Zeolkowski, [1989] 1 S.C.R. 1378, at p. 1387; and R. v. H. (J.) (2002), 161 C.C.C. (3d) 392 (Ont. C.A.), at para. 44.

[128]   Third, the requirement that the Crown prove that an alleged briber received (or intended to receive) a meaningful advantage does not limit the scope of s. 3(1)(a) of the CFPOA as drastically as the Crown suggests. In Greenwood, at p. 85, Doherty J.A. emphasized that the determination of whether an advantage is sufficiently material to attract liability for bribery under s. 121(1) of the Criminal Code should be made on a case-by-case basis:

In considering whether the gift constituted a benefit or advantage, the nature of the gift, the prior relationship if any, between the giver and the recipient, the manner in which the gift was made, the employee’s function with the government, the nature of the giver’s dealings with the government, the connection, if any, between the employee’s job and the giver’s dealings, and the state of mind of the giver and the receiver would all have evidentiary significance, as no doubt would other factors which may arise in any given case.

[129]   Similarly, “an advantage in the course of business” sufficient to engage liability under s. 3(1)(a) of the CFPOA could vary considerably, depending on the evidence about such factors as the nature of the advantage conferred, its genesis, its actual and potential impact on the recipient’s business, and their state of mind. The determination is contextual and fact driven. It is not hard to conceive of a situation where letters from a government confirming that a company had been awarded a multimillion dollar contract, similar to those secured by Mr. Arapakota in this case, would give the recipient a material advantage. It is only after having thoroughly assessed the evidence that the trial judge concluded that such letters conferred no real advantage to Mr. Arapakota or to Imex in the circumstances of this particular case.

[130]   Finally, the Crown argues that s. 3(1)(a) must be read in the context of the Commentaries to the OECD Convention. Paragraph 7 of the Commentaries states that the conduct to be criminalized pursuant to Article 1 of the Convention is the conferring of an advantage to a foreign official irrespective of “the value of the advantage, its results, perceptions of local custom, the tolerance of such payments by local authorities, or the alleged necessity of the payment in order to obtain or retain business or other improper advantage.” The Crown submits that, based on this language, the “advantage in the course of business” that the payment is intended to secure should not have to be material to be captured by s. 3(1)(a).

[131]   The question before the trial judge was not the magnitude of the advantage that Mr. Arapakota obtained in return for the Orlando trip, but whether he received anything at all that could qualify as an “advantage in the course of business” (emphasis added). The trial judge concluded that he did not, because the trip was organized before Mr. Arapakota realized that Imex might be awarded a sole source contract and the letters that he obtained from Dr. Kereteletswe in December 2015 and January 2016 had no value for him, from a business perspective.

[132]   In any event, in interpreting s. 3(1)(a), the Commentaries on the OECD Convention cannot be given more weight than guidance from the Supreme Court on the meaning of “advantage” in the context of parallel anti-bribery offences.

The trial judge did not err in her assessment of the evidence

[133]   The Crown contends that the trial judge’s misinterpretation of s. 3(1)(a) of the CFPOA led her to take a piecemeal approach to the evidence and to overlook its significance when considered in totality. Instead of reviewing the evidence to determine whether the Crown had proved that Mr. Arapakota specifically intended to obtain the December 2015 and January 2016 letters as a quid pro quo for the Orlando trip, the trial judge ought to have considered the full factual context, including the close relationship that developed between Mr. Arapakota and Dr. Kereteletswe.

[134]   This ground can be disposed of summarily. I do not agree that the trial judge committed an error of law or principle in her approach to the evidence, or a palpable and overriding error of fact.

[135]   The trial judge painstakingly reviewed the evidence about Dr. Kereteletswe’s interactions with Mr. Arapakota over several years and accepted the Crown’s submission that he was a “trusted and knowledgeable advisor” to Mr. Arapakota. She also found that there was no question that securing the contract for Phase II of the Botswana Project was very important to Imex’s financial stability and future prospects.

[136]   It was in the context of these and other findings that the trial judge considered Mr. Arapakota’s request to Dr. Kereteletswe for the December 2015 and January 2016 letters. Notwithstanding this context, she concluded that Mr. Arapakota did not perceive the letters as something that would assist him in obtaining or retaining an advantage in business, based on her assessment of the testimony of defence witnesses at trial.

[137]   The Crown effectively asks this court to reweigh the evidence in this case. That is not our role.

Disposition

[138]   While the trial judge erred in interpreting s. 3(1)(a) of the CFPOA as necessitating proof that a benefit was extended to a foreign public official in contemplation of a specific act (or omission), this is not sufficient to allow the Crown’s appeal. To successfully appeal an acquittal, the Crown must show the trial judge committed an error that had a material impact on the verdict: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; R. v. Sparks-MacKinnon, 2022 ONCA 617, 83 C.R. (7th) 56, at para. 11.

[139]   The preparation and signature of the letters were the only acts that the Crown alleged Mr. Arapakota received or contemplated receiving in return for the Orlando trip. The trial judge correctly interpreted the meaning of “advantage” in s. 3(1)(a) and found, as a matter of fact, that the letters provided no such advantage to Mr. Arapakota. This was dispositive of the prosecution. I am therefore satisfied the trial judge’s overly narrow reading of the “as consideration for” element had no material bearing on Mr. Arapakota’s acquittal.

[140]   I would accordingly dismiss the appeal.

“S. Gomery J.A.”

“I agree. E.E. Gillese J.A.”

 

 

 

 

 

 

 

Monahan J.A. (dissenting):

A.           OVERVIEW

[141]   I have had the benefit of reviewing my colleague Gomery J.A.’s reasons in which she proposes to dismiss the Crown’s appeal from the trial judgment acquitting the respondent on a charge of bribery of a foreign public official, contrary to s. 3(1)(a) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (the “CFPOA”).

[142]   Respectfully, I come to a different conclusion. For reasons I will explain, the trial judge adopted an unduly narrow interpretation of s. 3(1)(a), by requiring the Crown to prove that the respondent received a benefit or advantage from the foreign public official, Dr. Omponye “Coach” Kereteletswe (“Kereteletswe”), in return for the consideration the respondent provided to Kereteletswe. I would allow the Crown’s appeal, set aside the acquittal and order a new trial.

[143]   The analysis that follows is divided into four parts.

[144]   The comprehensive reasons of my colleague relieve me of the necessity of summarizing in any detail the facts as found or the reasons of the trial judge. I nevertheless begin in part one by highlighting certain aspects of the trial judge’s interpretation of the “as consideration for” language in s. 3(1)(a), which she found requires that a public official provide an “advantage in business” in return for any benefit or advantage that the official may have received from an accused. This interpretation of s. 3(1)(a) (which I refer to as a “bargain theory”) was the basis of the trial judge’s acquittal of the respondent since, although the respondent conferred a benefit on Kereteletswe (i.e., the U.S. trip), there was an insufficient nexus or link between that benefit and the letters that Kereteletswe provided to the respondent, nor was there sufficient evidence that those letters provided the respondent with an “advantage in business”.

[145]   The trial judge’s bargain theory of s. 3(1)(a) was based on the interpretation of the same “as consideration for” language in s. 121(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Thus, in part two of these reasons I discuss the scope and application of s. 121(1)(a) of the Code in the context of Canada’s domestic anti-bribery legislation. I will argue, contrary to the analysis of the trial judge, that the essential elements of s. 121(1)(a)(i) focus on the conduct and intention of the alleged briber, rather than the public official.^[6] If the alleged briber offers or provides a benefit or advantage to a public official for the improper purpose of inducing that official to act or refrain from acting in connection with the performance of certain of their public duties, that is sufficient to ground a conviction under s. 121(1)(a)(i) of the Code. It is unnecessary that the public official accept the benefit offered, act in the manner proposed, or even be capable of so acting. Nor is it necessary that the alleged briber and the public official have entered into some arrangement regarding the proposed conduct, such that the alleged briber “expected” that the official would act in a particular manner if they received the benefit or advantage offered or given. I further explain why this interpretation of s. 121(1)(a)(i) is consistent not only with the text of the provision but also with its underlying purpose, which is to prevent and combat the insidious effects of bribery and corruption on Canadian government and society. I will also consider other Code provisions which contain the identical “as consideration for” language found in s. 121(1)(a) and have been interpreted as not requiring any bargain or exchange between the relevant parties.

[146]   In part three, I turn to s. 3(1) of the CFPOA and argue that, as in the case of s. 121(1)(a)(i) and other similar Code provisions, the gravamen of the offence established by this provision is the offering or conferring of an advantage or benefit on a foreign public official for an improper purpose, namely, with the intention of influencing the manner in which the public official carries out certain of their public duties. As such, the conduct and intention of an alleged briber that attracts liability under s. 3(1)(a) mirrors that applicable under s. 121(1)(a)(i). In either case, it is sufficient if the alleged briber offers or gives an advantage or benefit on a public official for an improper purpose, without regard to whether the public official takes up the offer or acts in the manner proposed. I further explain why, contrary to the analysis of the trial judge, the basis of liability under s. 3(1)(a) of the CFPOA is in substance identical to that applicable under s. 3(1)(b). This interpretation of s. 3(1) is not only in harmony with Canada’s domestic anti-bribery and anti-corruption legislation, but it properly fulfills Canada’s obligations as a signatory to the Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (the “Bribery Convention”), which defines “bribery” in identical terms (Organization for Economic Cooperation and Development (“OECD”), Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, OECD Legal Instruments 0293 (1997)).

[147]   In part four I explain that it necessarily follows from the above analysis that the trial judge made a legal error in adopting the bargain theory of s. 3(1)(a), since she required the Crown to prove that the respondent received a benefit or advantage in return for the U.S. trip provided to Kereteletswe. This legal error was central to the trial judge’s acquittal of the respondent, thereby making it necessary that the acquittal be set aside and a new trial ordered.

B.           THE TRIAL JUDGE’S INTERPRETATION OF “AS CONSIDERATION FOR” IN S. 3(1)(a) OF THE CFPOA

[148]   As my colleague has ably explained, the basis of the trial judge’s acquittal of the respondent was her interpretation of the “as consideration for” language in s. 3(1)(a) of the CFPOA.

[149]   The trial judge found that, because identical language is found in s. 121(1)(a) of the Code, the interpretation of s. 3(1) should be consistent with that applicable to the analogous Code provision. The trial judge pointed out that both this court in R. v. Greenwood (1991), 5 O.R. (3d) 71 (C.A.), and the Supreme Court in R. v. Hinchey, [1996] 3 S.C.R. 1128 and R. v. Cogger, [1997] 2 S.C.R. 845, described the “as consideration for” language in subsections 121(1)(a), (d), (e) and (f) as requiring a “quid pro quo arrangement”. The trial judge highlighted certain passages from Doherty J.A.’s reasons in Greenwood, including Doherty J.A.’s observation, at p. 92, that because s. 121(1)(c) (the provision at issue in Greenwood) did not contain the “as consideration for” language, it did not require a “corrupt state of mind” on the part of the government employee:

The difference [between various other subsections in s. 121 and s. 121(1)(c)] rests in the absences of any requirement in s. 121(1)(c) that the recipient of a benefit intends to do something in return for the benefit. The corrupt state of mind inherent in the ‘something for something’ nature of the offences created by s. 121(1) (a), (d), (e) and (f) is not present in s. 121 (1)(c).

[150]   The trial judge further relied on the fact that L’Heureux-Dubé J., at para. 22 in Cogger, stated that the “essence of [s. 121(1)(a) of the Code]… is the quid pro quo arrangement, which is not a required element under s. 121(1)(c).”

[151]   On this basis, the trial judge found that s. 3(1)(a) of the CFPOA “sets a quid pro quo requirement for liability by including the words ‘as consideration for’”. The trial judge interpreted this “quid pro quo requirement” to mean that, in order for an accused to be convicted of an offence under s. 3(1)(a), the foreign public official who has received a benefit or advantage from an accused must confer or provide an “advantage in business” in return.

[152]   The trial judge contrasted s. 3(1)(a) with s. 3(1)(b), which does not contain the “as consideration for” language, but provides instead that an offence is committed where a person confers a benefit on a foreign public official “to induce the official to use his or her position to influence any acts or decisions of the foreign state…”. In the trial judge’s view, the absence of the “as consideration for” language in s. 3(1)(b) means that it “captures a different, broader scope of conduct”. Liability under s. 3(1)(b) will arise merely by an accused conferring a benefit on a foreign public official to induce or attempt to induce the foreign official to use their influence, “whether the foreign public official has done anything or not”.

[153]   Based on this interpretation of the relevant statutory provisions, the trial judge was not persuaded beyond a reasonable doubt that the three letters provided by Kereteletswe in December 2015 and January 2016 were conferred “as consideration for” the U.S. trip funded by the respondent. The quid pro quo requirement under s. 3(1)(a) required “proof of a link between the advantage given to a foreign public official and a specific act (or omission) undertaken by the public foreign official.” In the trial judge’s view, there was an insufficient link or nexus between the U.S. trip and the three letters. Nor was the trial judge persuaded that the three letters provided the respondent with a sufficient “advantage in business”, which was a further requirement that had to be satisfied in order for the respondent to be convicted under s. 3(1)(a).

[154]   At the same time, the trial judge acknowledged that the respondent’s purpose in arranging the U.S. trip for Kereteletswe may not have been “purely altruistic” and that “it is possible, and even probable, that Mr. Arapakota arranged the [U.S. trip] in the hopes of keeping Dr. Kereteletswe motivated to assist Imex, in whatever way he could, in securing the contract for work on phase II of the Botswana Project.” The trial judge pointed out that this gave rise to the possibility that the respondent’s conduct “might fall under s. 3(1)(b) of the CFPOA, given the arguably broader scope of conduct it captures”. However, this issue was “beyond the scope of the issues to be decided in this case, as Mr. Arapakota was not charged with an offence under s. 3(1)(b) of the CFPOA.”

[155]   In the result, the respondent was found not guilty of the offence under s. 3(1)(a).

C.           “AS CONSIDERATION FOR” IN S. 121(1)(A) AND ELSEWHERE IN THE CODE

(1)         Governing principles of interpretation

[156]   My colleague has helpfully summarized the relevant principles of statutory interpretation, which I adopt. Of those principles, I find the following particularly relevant to the interpretation of “as consideration for” in s. 121(1)(a), as well as in various other Code provisions where this identical language is found:

•        statutory interpretation entails “discerning Parliament’s intent by examining the words of the statute in their entire context and in their grammatical and ordinary sense, in harmony with the statute’s schemes and objects”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 31;

•        every statute is “deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: Interpretation Act, R.S.C. 1985, c. I-21, s. 12; and

•        Parliament is assumed to legislate coherently and consistently when dealing with a particular subject matter: Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022), at s. 13.04.

[157]   Although not directly relevant to s. 121(1)(a), I also agree with my colleague’s discussion of the “presumption of conformity” that applies when interpreting legislation enacted pursuant to Canada’s international treaty obligations, such that “courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result”: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. I further agree that this presumption of conformity is rebuttable, but only where the statute “demonstrates an unequivocal legislative intent to default on an international obligation”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316, at para. 53.

(2)         Text of s. 121(1)(a)

[158]   As noted above, the trial judge concluded that an essential element of the offence established by s. 121(1)(a) is that there be an arrangement or bargain between the person giving or offering the benefit and the public official to whom it is offered or given.

[159]   The text of the provision makes it an offence for any person who:

(a) directly or indirectly

(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(iii) the transaction of business with or any matter of business relating to the government, or

(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

[160]   I note that there is no reference in the text of s. 121(1)(a) to the necessity of the Crown proving the existence of any bargain between the giver and the recipient of the benefit or advantage. However, in the trial judge’s view, this essential element is said to follow from the use of the “as consideration for language” in s. 121(1)(a). As my colleague points out, in a contractual context, “consideration” distinguishes purely gratuitous promises from those that resemble a bargain. Therefore, by including the term “as consideration for” in s. 121(1), Parliament intended to restrict the offence to situations involving a reciprocal bargain between an alleged briber and the relevant public official.

[161]   In support of this bargain theory of s. 121(1)(a), the trial judge relies upon a number of Supreme Court decisions in which officials who have received benefits from persons dealing with the government have been charged with an offence under s. 121(1)(a)(ii) or s. 121(1)(c). I will discuss these cases below in some detail. For the moment, I simply point out that the trial judge does not cite any case in which an alleged briber has been acquitted of an offence under s. 121(1)(a)(i) because the public official to whom the bribe was offered refused to accept or participate in the corrupt arrangement proposed. Moreover, the trial judge appears to have not been made aware of jurisprudence interpreting the identical “as consideration for” language in other Code provisions as not requiring proof of a bargain between the person offering the benefit and the person intended to receive it.

[162]   I will return to these issues later in these reasons. At this point, my focus is on the text of s. 121(1)(a) which, in my view, is incompatible with the bargain theory put forward by the trial judge.

[163]   I say this for four reasons.

[164]   First, s. 121(1)(a) applies not only where a benefit is actually given to a public official, but simply when a person offers to provide such a benefit. This is reflected in the express statement in s. 121(1)(a) that the offence created by the provision applies to anyone who: (i) “gives, offers or agrees to give or offer to an official”; or (ii) “being an official, demands, accepts or offers or agrees to accept from any person for himself or another person” (emphasis added).

[165]   Nowhere in the text of s. 121(1)(a) is there any requirement that such an offer (i.e. of the person proposing to provide the benefit under paragraph (i), or the public official offering to accept such a benefit under para. (ii), as the case may be) must be accepted to establish that the person making the offer has committed an offence.

[166]   Second, it is clear from the wording of s. 121(1)(a)(i) and (ii), and specifically the use of the word “or” between them, that Parliament’s intention was to create two separate offences, the first applicable to a person offering a benefit to a public official and the second applicable to a public official offering to receive a benefit. The bargain theory of s. 121(1)(a) collapses these two separate offences into one. In effect, it makes the liability of a person offering the benefit to a public official dependent on whether a public official agrees to receive the benefit, and vice versa. This is contrary to the text of the provision, which establishes two separate offences independent of each other.

[167]   Third, the closing words of s. 121(1)(a) expressly stipulate that the offence is committed “whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be”. This stipulation is inconsistent with the bargain theory of s. 121(1)(a). If a person offers a benefit to a public official with the intention of inducing the public official to commit an act beyond their legal authority, and assuming the public official is aware of the scope of their legal authority, the public official could not genuinely agree to do the thing proposed. This stipulation suggests that Parliament intended that a person offering a benefit to a public official in order to influence the public official to act in a certain way could be convicted of an offence regardless of whether the official agrees to act in the manner proposed, and vice versa.

[168]   Fourth, the “as consideration for” language also appears in ss. 121(1)(d), (e) and (f), which make it an offence for a person who:

(d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including themselves to an office;

(e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official…, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or any act or omission by that minister official, in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including themselves, to an office;

(f) having made a tender to obtain a contract with the government,

(i) directly or indirectly gives or offers, or agrees to give or offer, to another person who was made a tender… A reward advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or

(ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who was made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.

[169]   If the use of “as consideration for” in s. 121(1)(a) requires a bargain to apply, the same must equally be true of the offences created by other provisions in s. 121(1). Yet such an interpretation seems to contradict the purpose of these provisions. It would mean, for example, that if person one offered a benefit to person two in connection with an appointment to a public office, or person two offered to receive such a benefit from person one, neither could be convicted under ss. 121(1)(d) or (e) unless they both agreed to the offer or proposal. However, the mere making of such an improper offer or proposal by person one, regardless of whether it is accepted by person two, is antithetical to the goal of ensuring that appointments to public offices are made on merit rather than through improper influence. It is for this reason that these provisions have been found to apply even if the second person does not intend to act on the proposal. (See R. v. O’Brien (2009), 249 C.C.C. (3d) 399 (Ont. S.C.), holding, at para. 18, that “any offer or acceptance of an advantage or benefit that appears to a reasonable member of the Canadian public to compromise the honesty and integrity of government is intended to fall within the scope of section 121(1)(d).”)

[170]   Similarly, if a bargain requirement applied to s. 121(1)(f), it would mean that if a person involved in a tendering process offered a benefit to a second tenderer in order to induce the second tenderer to withdraw their tender, the first tenderer would only be guilty of an offence if the second tenderer actually withdrew, or agreed to withdraw, their tender. Yet the mere making of such an improper offer must be sufficient to constitute an offence under s. 121(1)(f), since it is irreconcilable with the goal of ensuring that government contracts are awarded based on objective measures of value rather than through fraud, subterfuge or manipulation.

[171]   What, then, is the meaning of the “as consideration for” language used in ss. 121(1)(a), (d), (e) and (f)?

[172]   The simple answer is that the language describes the purpose or intention of the person engaging in the relevant prohibited conduct. In the s. 121(1)(a)(i) scenario, for example, it means that the person offering or giving the benefit to a public official can only be convicted if they did so with the intention that the official to whom the offer is made will act in the manner described in paras. (iii) or (iv) of s. 121(1)(a). But provided that the offeror or giver of the benefit has this intention or purpose, it does not matter whether the public official accepts the benefit or agrees to act in the manner described in paras. (iii) or (iv). Nor must the offeror or giver receive some benefit or advantage in return.

[173]   Conversely, in the s. 121(1)(a)(ii) scenario, the public official can only be convicted if they demanded, accepted or offered to accept a benefit from another person with the intention of acting (or refraining from acting) in connection with the matters described in paras. (iii) or (iv). But, again, provided that the official accepted, demanded or offered to accept the benefit with this intention or purpose, it does not matter whether the person from whom the benefit was demanded or provided also intended that the public official do any of the things described in paras. (iii) or (iv).

[174]   In either scenario, the person offering or providing the benefit or the public official demanding or receiving the benefit had in mind a quid pro quo arrangement, whereby something was to be done because of the benefit offered, given, demanded or accepted, as the case may be. This is what “as consideration for” describes. But provided that one person acted with the prescribed quid pro quo in mind, that person can be convicted of the relevant offence regardless of whether another person agreed with or had the same intention. The liability of each of the parties must be assessed independently of the other, since in this instance whether one person is morally and legally culpable does not depend or turn on whether a second person is similarly morally and legally culpable.

(3)         “As consideration for” elsewhere in the Code

[175]   The “as consideration for” language in s. 121(1) is found elsewhere in the Code. The established interpretation of these other provisions is inconsistent with the bargain theory of s. 121(1)(a) and supports the alternative interpretation I have set out above.

(a)         Section 426(1) – Secret Commissions

[176]   Section 426(1) of the Code, dealing with the payment of secret commissions, includes the identical “as consideration for” language used in s. 121(1)(a). It provides that it is an offence for anyone who:

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal…. [Emphasis added.] .

[177]   Section 426(1) was considered by this court in R. v. Wile (1990), 74 O.R. (2d) 289 (C.A.), in which two accused were charged with offering a secret commission to an agent. Unknown to the accused, the agent had agreed to provide the RCMP with information in exchange for immunity from prosecution, and he proceeded to inform the police of the offer. During its analysis of s. 426(1), the court stated, at p. 11, that the offence is established by the making of a corrupt offer to an agent, regardless of whether the agent intends to carry out the improper purpose for which the offer was made:

The secret commission offence provided for in this section of the Code is made out when a person corruptly offers (or gives or agrees to give or offer) a benefit to an agent as consideration for doing or forbearing to do something in relation to the affairs or business of his principal. While the Crown must, of course, prove that the person who was offered the benefit was in fact an agent, in our opinion the agent need not have a specific principal at the time when the prohibited offer was made. Nor need the agent intend to carry out the purpose for which the offer was made. The gravamen of the offence is the offer to the agent and the corrupt intention accompanying the offer. [Emphasis added.]

[178]   In support of this interpretation, the court cited the following passage from the judgment of Laskin J.A. (as he then was) in R. v. Reid (1969), 1 O.R. 158 (C.A.), at p. 41:

I am in no doubt that there may be a corrupt giving within s. 368(1)(a)(i) [now s. 426(1)(a)] even though it turns out that the receiving agent did nothing untoward but merely acted in the ordinary course. The clause under discussion does not demand proof that the agent acted disloyally; rather, it fastens on the purpose of the accused to influence such a result or to reward such a result. [Emphasis added.]

[179]   The issue of whether s. 426(1) requires proof of a reciprocal bargain was subsequently considered by Cory J. in R. v. Kelly, [1992] 2 S.C.R. 170, at paras. 24-25:

Is the Crown required to prove that there was a corrupt bargain between the giver and taker of the benefit? I think not…

The requirement of both a corrupt giver and a corrupt taker collapses the two independent provisions of s. 426 (1)(a). The use of the disjunctive "or" in s. 426(1)(a) must mean that the section applies to either the giver or the taker. The provision need not apply to both at the same time. This interpretation I believe is supported by the obvious intent and aim of the section itself. [Emphasis in original.]

(b)         Section 123(1) – Municipal Corruption

[180]   The same interpretation has been adopted in relation to s. 123(1), dealing with municipal corruption, which provides in relevant part as follows:

123(1) Every person is guilty of an indictable offence…who directly or indirectly gives, offers or agrees to give or offer to a municipal official or to anyone for the benefit of a municipal official — or, being a municipal official, directly or indirectly demands, accepts or offers or agrees to accept from any person for themselves or another person — a loan, reward, advantage or benefit of any kind as consideration for the official

(a) to abstain from voting at a meeting of the municipal council or a committee of the council;

(b) to vote in favour of or against a measure, motion or resolution;

(c) to aid in procuring or preventing the adoption of a measure, motion or resolution; or

(d) to perform or fail to perform an official act. [Emphasis added.]

[181]   Section 123(1) was considered by the Québec Court of Appeal in Bergevin c. R., 2020 QCCA 658, EYB 2020-353622, leave to appeal to S.C.C. refused, 39291 (January 14, 2021). The appellant, Michel Bergevin, had given $31,000 to his co-accused René Lafrance, who in turn paid these funds to the mayor of Châteauguay, Québec for the purpose of securing passage of a municipal resolution appointing Lafrance to a municipal office. No such resolution was ever passed, and the mayor’s integrity was not compromised.

[182]   Bergevin was charged and convicted of municipal corruption under s. 123(1).^[7] He argued on appeal that the inclusion of the “as consideration for” language in s. 123(1) meant that he could only be convicted if the mayor had provided him with some benefit in return for the money. Because the mayor did not secure the passage of the resolution and, even if she had, the benefit would have accrued to Lafrance rather than Bergevin, the trial judge erred in convicting him.

[183]   The Québec Court of Appeal rejected these arguments, holding at paras. 47-48, that s. 123(1) prohibited the mere act of giving or offering a benefit to a municipal official for the purpose of securing certain outcomes, regardless of whether the official accepted the benefit or undertook to comply with the requests made. Nor was it necessary that a reciprocal benefit accrue to Bergevin for him to be convicted under s. 123(1):

[47] Contrairement à ce qu'invoque l'appelant, l'intention criminelle de la Mairesse n'est pas un élément essentiel de l'infraction. En effet, en vertu de l'article 123 C.cr., le simple fait de donner ou d'offrir un avantage, une récompense ou un bénéfice à un fonctionnaire municipal en échange d'une des contreparties énoncées aux alinéas a) à d) suffit pour constituer une infraction criminelle. Il n'est pas nécessaire que le fonctionnaire accepte ou s'engage à donner suite aux demandes formulées. L'intention véritable du fonctionnaire municipal n'est pas un élément essentiel et n'a donc pas à être prouvée. [48] L'argument soulevé en ce qui concerne la mens rea ne peut davantage être retenu. L'article 123 C.cr. n'exige pas la démonstration que le contrevenant tirera éventuellement un avantage de la résolution envisagée, laquelle pourrait d'ailleurs ne jamais être adoptée. L'utilisation du terme « en contrepartie » ou « in consideration for » décrit la nature de l'avantage recherché par l'accusé. En l'espèce, la contrepartie était d'obtenir l'aide de la Mairesse en vue de l'adoption d'une résolution, soit celle nommant M. Lafrance Directeur du développement économique. Le juge retient que l'appelant connaissait l'objectif poursuivi par M. Lafrance et que c'est à cette fin qu'il lui remet l'argent destiné à la Mairesse. L'intention du contrevenant de s'enrichir ou d'avantager ses propres affaires n'a pas à être démontrée. [Emphase ajoutée.]

[47] Contrary to the appellant's submissions, the mayor’s criminal intent is not an essential element of the offence. Under s. 123 of the Criminal Code the mere fact of giving or offering an advantage, reward or benefit to a municipal officer in exchange for any of the consideration set out in paragraphs (a) to (d) is sufficient to constitute a criminal offence. It is not necessary for the official to accept or undertake to comply with the requests made. The true intent of the municipal official is not an essential element and therefore does not have to be proven. [48] Nor can the argument raised with respect to mens rea succeed. Section 123 of the Criminal Code does not require proof that the offender will eventually benefit from the proposed resolution, which may never be adopted. The use of the term "in consideration" or "in consideration for" describes the nature of the benefit sought by the accused. In this case, the quid pro quo was to obtain the mayor’s assistance in adopting a resolution, namely the resolution appointing Mr. Lafrance Director of Economic Development. The judge held that the appellant was aware of Mr. Lafrance's objective and that it was for this purpose that he gave him the money intended for the mayor. The offender's intention to enrich himself or to benefit his own business does not have to be demonstrated. [Emphasis added.][8]

 

[184]   In short, the words “as consideration for” in s. 123(1) refer simply to the intention of the giver in providing or offering a benefit, rather than whether the official to whom the offer is made agrees to act in the manner contemplated or provides anything to the giver in return.

(c)         Section 125(a) – Appointments to Public Offices

[185]   The identical “as consideration for” language is included in s. 125(a), dealing with appointments to public offices, which makes it an offence for anyone who:

(a) receives, agrees to receive, gives or procures to be given, directly or indirectly, a reward, advantage or benefit of any kind as consideration for cooperation, assistance or exercise of influence to secure the appointment of any person to an office… [Emphasis added.]

[186]   The purpose of this provision has been described as to ensure that “public offices be given freely to the most deserving by the authority which disposes of them” since “[i]t is one of our democratic liberties that every citizen can apply freely, without being obliged to pay tribute to this one or that one, to administrators of public works who have the power to distribute public posts.”: R. v. Auger (1942), 78 C.C.C. 136 (Que. S.P.), at p. 140. I am not aware of any instance of this provision being interpreted such that a person seeking to undermine the integrity of a public official by offering a benefit in return for appointment to a public office has been acquitted on the basis that the appointment sought was not actually provided or promised in return.

(d)         Section 231(3) – Contracted Murder

[187]   In contrast to the other provisions discussed above, where Parliament intended that proof of a bargain or agreement to be an essential element of an offence, it so specified in clear and express language. This is illustrated by s. 231(3), which provides that where a murder is carried out pursuant to an agreement, it is planned and deliberate and therefore first-degree murder:

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death. [Emphasis added.]

[188]   The emphasized portion makes it clear that the Crown must prove the existence of an arrangement or agreement before a person can be found guilty of first-degree murder pursuant to this provision. In other words, where Parliament intended the existence of a bargain between two or more persons to be an essential element of an offence, it did so in express language. No such express language is found in s. 121(1)(a). This absence supports the conclusion that Parliament did not intend that any such bargain requirement had to be satisfied before a person can be convicted of offering or giving a bribe under para. (i), or a public official can be convicted of accepting or offering to accept a bribe under para. (ii).

(4)         Section 121(1)(a) interpreted in harmony with the statute’s schemes and objects

[189]   As noted above, the modern rule of statutory interpretation requires that the text of a statute must be considered in light of the broader purposes and objects of the statutory scheme as a whole.

[190]   The anti-corruption provisions in the Code and elsewhere in Canadian law reflect the understanding that the legitimacy of the state power in a free and democratic society rests upon an invisible but indispensable foundation of trust, namely, the belief that such coercive power will be exercised for public purposes and the public good. Corruption in its various forms is a mortal threat to that legitimacy, since it seeks to enlist the coercive authority of the state in aid of purely private purposes rather than the common good. As such, corruption corrodes public trust, undermines the institutions and values of democracy, jeopardizes the rule of law and ultimately delegitimizes the state: see generally the United Nations Convention against Corruption, 31 October 2003, UNTS 2349.

[191]   These purposes would be seriously compromised by narrowing the application of s. 121(1)(a) to situations where there has been a bargain between the person offering a benefit and the public official to whom it is offered.

[192]   Consider, for example, the implications of applying this bargain theory to situations such as those presented in R. v. Abdulle, 2015 ONSC 7023, aff’d 2018 ONCA 643, where a private sponsor of refugee applications under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 was dealing with an official in Immigration Canada responsible for processing the applications. The private sponsor offered to pay off the official’s mortgage or provide her with gold or cash payments if she expedited the refugee applications. Rather than accept the offer, the official reported it to her superiors. The private sponsor was arrested, charged with an offence under s. 121(1)(a)(i), and convicted at trial.

[193]   Public confidence in Canada’s refugee system depends upon the belief that the system is being administered fairly and in accordance with law. Yet if the bargain theory of s. 121(1)(a) were adopted in this context, the private sponsor would have been acquitted since there was no bargain or arrangement between the private sponsor and the official to whom the offer was made. If an individual with such an obviously corrupt intent were able to escape conviction on the basis that the attempted bribe was not accepted and he received no benefit, it would give rise to serious concerns over the integrity and legitimacy of Canada’s refugee system.

[194]   Moreover, recall that the “as consideration for” language in s. 121(1)(a) applies not only to the person offering the benefit under para. (i) but to a public official who offers or demands a benefit under para. (ii). Thus, suppose in Abdulle that, rather than the sponsor offering gold or cash, the official in Immigration Canada had demanded a cash payment from the private sponsor in return for normal and regular processing of the sponsor’s refugee applications, but the sponsor had refused. Such a corrupt demand or offer by a government official would represent a repudiation of the official’s duty to perform their duties in accordance with law. Yet, under the bargain theory of s. 121(1)(a), in these hypothetical circumstances such an official could not be convicted despite their improper proposal because the person to whom the proposal had been made did not accept it. This would surely bring the administration of Canada’s refugee system into disrepute.

[195]   Consider, further, the facts and circumstances in R. v. Pilarinos, 2002 BCSC 1267, 216 D.L.R. (4th) 680, in which the accused, Dimitrios Pilarinos, was seeking a casino license from the province of British Columbia, while his co-accused, Glen Clark, was the premier of the province. While Pilarinos’ casino application was under consideration, he undertook renovations on Clark’s home and was not fully paid for the work. The trial judge found that Pilarinos conferred this benefit on Clark in order to induce Clark to assist him in obtaining a casino license. At the same time, the trial judge was not persuaded beyond a reasonable doubt that Clark was aware that Pilarinos had been underpaid, and Clark took no action in respect of Pilarinos’ casino application, which was ultimately denied.

[196]   The trial judge convicted Pilarinos of offences under ss. 121(1)(a)(i), (b) and (e) but acquitted Clark of his charges. The trial judge found that Pilarinos’ liability was independent of Clark’s and thus it was not necessary for the Crown to show that Clark accepted a benefit for an improper purpose to convict Pilarinos. While s. 121(1)(a) required a “quid pro quo”, this requirement referred to “the intention behind the benefit or the demand for a benefit” with the result that “the giver may be culpable if the benefit was given for ‘an ulterior purpose’ even if there is no acceptance of the benefit by the official or return by the official.”: at paras. 190- 191.

[197]   Had the trial judge adopted the bargain theory of s. 121(1)(a), Pilarinos would have been acquitted – despite the fact it was proven that he had a corrupt intention in providing the benefit to Clark – simply because it was not proven that Clark participated in Pilarinos’ scheme.

[198]   While such a result could well have threatened public confidence in the commercial casino license process in the province, even more problematic is a scenario where the roles are reversed. Suppose a public official had demanded that Pilarinos provide them with a benefit in return for having his casino application considered on its merits, but Pilarinos had refused. Such an official would be attempting to use their position and authority to extort benefits from casino license applicants simply so that the applicants could receive fair consideration of their applications. Yet applying the bargain theory of s. 121(1)(a), the official could not have been convicted under. 121(1)(a)(ii) because the intended victim of the extortion attempt had refused to comply. Parliament could not have intended that such blatantly corrupt conduct escape liability based on the inclusion of the words “as consideration for” in s. 121(1)(a).

(5)         The precedents relied upon by the trial judge, properly understood, do not require existence of a bargain under s. 121(1)(a)

[199]   In concluding that s. 121(1)(a) required proof of a bargain, the trial judge relied in particular on three cases interpreting s. 121(1): this court’s decision in Greenwood, along with the Supreme Court’s decisions in Hinchey and Cogger. However, in my respectful view, a careful reading of those cases does not support the bargain theory of s. 121(1)(a) adopted by the trial judge.

(a)         Greenwood

[200]   Read in its entirety and in context, I see nothing in Greenwood which requires that there be a bargain between the giver and the recipient of a benefit before liability under s. 121(1)(a) can arise.

[201]   Greenwood involved prosecutions for offences under ss. 121(1)(b) and (c) of the Code and, in particular, on what kind of “advantage or benefit” had to be provided to a government employee in order to attract criminal liability under those provisions. In the course of his reasons, Doherty J.A. considered the use of the words “as consideration for” in s. 121(1)(a) and its corresponding absence from ss. 121(1)(b) and (c), in order to distinguish the mental element required to establish liability under s. 121(1)(a).

[202]   Doherty J.A. interpreted the words “as consideration for” in 121(1)(a) as referring to the intention of either the giver or the receiver of the benefit. That is, in order to establish liability, the benefit must either be given or received with the intention or for the purpose that it be acted upon in a certain way. But read in their entirety and in context, nowhere does Doherty J.A. take the further step of requiring that there be an actual bargain or exchange of benefits between the relevant parties before liability under s. 121(1)(a) can arise.

[203]   Doherty J.A. first discusses s. 121(1)(a) at p. 84 of his reasons, where he comments as follows:

It is noteworthy that the other offences created by s. 121 (1) [i.e. other than s. 121(b) and (c)] also used the words “advantage or benefit”, without any apparent qualification. The offences created by those [other] sections, however, limit the scope of those words by requiring that the advantage or benefit be given or received for a specific purpose…Those sections differentiate between criminal benefits and other benefits by reference to the giver’s or recipient’s state of mind. No such limitation is found in s. 121(1)(c). [Emphasis added.]

[204]   Doherty J.A.’s statement that the offence is committed only if the advantage or benefit is “given or received for a specific purpose” and requires an inquiry into the “giver’s or recipient’s state of mind”, seems to contemplate that either the giver or the recipient can commit the offence independently of the other, provided that the benefit or advantage is either given or received for a specific improper purpose. Nothing in this paragraph requires that there must be a bargain between the giver and the recipient of a benefit in order for the relevant sections to apply.

[205]   Doherty J.A. returns to these issues at p. 91, where he comments as follows:

Broadly stated, s. 121(1)(a), (d), (e), and (f) all require that a benefit be given or received as consideration for doing something in connection with the affairs or business of government. For example, s. 121(1)(a)(ii) provides in part that an official who receives a benefit as consideration for his or her cooperation in connection with the transaction of business with the government is guilty of an offence. Each of the offences created by these subsections requires proof of a quid pro quo and involves corruption in its most obvious form. [Emphasis added.]

[206]   The trial judge relies in particular on the use of the term “quid pro quo” in this paragraph as importing the requirement that there be an actual bargain between the parties in order for any of these provisions to apply. I accept that considered in isolation, the words “quid pro quo” could well be read in this way. But the words must be read in their entire context rather than in isolation.

[207]   In the immediately following paragraphs, at pp. 91-92, Doherty J.A. repeats his earlier comments from p. 84 to the effect that the words “as consideration for” merely refer to the intention underlying the giving or receiving of a benefit, without any indication that there must be both the giving and receiving of a benefit in order for s. 121(a) to apply:

The mental element required to establish culpability with respect to these offences rests in the purpose for which the benefit is given or received and is reflected in the words “as consideration for” found in each of the subsections. For example, the government official who is charged under s. 121(1)(a)(ii) can only be convicted if it is proved that he or she intended to cooperate, assist or exercise influence in connection with the business of the government in return for the benefit.

Section 121(2) creates a somewhat different offence than those created in s. 121(1). It too, however, requires proof that valuable consideration was given for a specific purpose (s. 121(2)(a)) or with a specific intent (s. 121 (1)(b)). Like the offences created by s. 121(1)(d),(e), and (f), culpability under s. 121(2) rests in the purpose or intent which accompanies the doing of the prohibited conduct.

[208]   Once again, Doherty J.A. reads the words “as consideration for” as referring to the purpose or intention underlying the giving or receiving of a benefit such that, depending on the wording of the relevant provision, either the giving or the receiving of a benefit can give rise to criminal liability. This is reinforced by his reference to s. 121(2) which, instead of using the words “as consideration for”, refers to the offering or giving of “any valuable consideration for the purpose of promoting the election of a candidate” or “with intent to influence or affect in any way the outcome of an election”. In other words, the words “for the purpose of” or “with intent to” in s. 121(2) are the equivalent of the words “as consideration for” in s. 121(1).

[209]   Doherty J.A. then completes his discussion of this issue, at p. 92, by explaining that the absence of “as consideration for” or equivalent language in s. 121(1)(c) means that this provision (unlike s. 121(1)(a)) can apply to an official who receives a benefit even if they do not have the corrupt state of mind of intending to do something in return for the benefit:

Section 121(1)(c) does not contain the phrase “as consideration for” or any equivalent language. The absence of such language clearly indicates to me that the fault requirement in s. 121(1)(c) differs from that found in those other sections… The difference rests in the absence of any requirement in s. 121(1)(c) that the recipient of a benefit intends to do something in return for the benefit. The corrupt state of mind inherent in the “something for something” nature of the offences created by s. 121(1)(a), (d), (e), and (f) is not present in s. 121(1) (c).

[210]   The trial judge focuses on Doherty J.A.’s use of the terms “quid pro quo” and “something for something” in pp. 91-92 and interprets them quite literally, such that Doherty J.A. is taken to mean that there must be an actual exchange of benefit between a giver and a receiver to found liability under the various provisions of s. 121(1), including s. 121(1)(a). But, respectfully, this literal reading fails to take account of Doherty J.A.’s discussion in its entirety, in which he describes the “as consideration for” language in these provisions as referring to the state of mind of the person either giving or receiving the benefit. Thus, if the person offering or giving the benefit to an official does so with the intention that they will receive “something for something”, that state of mind is sufficient to establish their liability under s. 121(1)(a)(i), even if the official to whom the benefit is offered does not accept or agree to act upon it. By the same token, if the official who accepts or demands a benefit does so with the intention that they will provide “something for something”, that too is sufficient to establish the official’s liability under s. 121(1)(a)(ii), even if the person offering or providing the benefit has no such intention. In other words, the words “something for something” merely refer to the improper state of mind inherent in the person engaging in the prohibited conduct.

(b)         Hinchey

[211]   As in Greenwood, the focus in Hinchey was on the mental state necessary in order to found liability under s. 121(1)(c) on the part of a government employee who receives a benefit from a third-party who has dealings with the government. L’Heureux-Dubé J., who wrote the majority opinion for the Supreme Court, concluded that a government employee could be found guilty under s. 121(1)(c) even if they did not intend to provide anything in return for the benefit. This was because the provision was intended to protect the appearance of government integrity, even in the absence of any actual “ill motive” on the part of government officials. At para. 21, L’Heureux-Dubé J. contrasted the mental element required under s. 121(1)(c) with that applicable under s. 121(1)(a) through their intended purpose:

This section [s. 121(1)(a)] clearly tries to preserve the actual integrity of government employees by deterring them from taking benefits in return for giving or promising some sort of reward to the benefactor. It is noteworthy that no actual return needs to be made to be trapped under the section. It is sufficient for culpability if the gift was given for an ulterior purpose, in that it was designed to compromise the integrity of the employee. The purpose behind this section recognizes that the integrity of government employees can be compromised when they accept rewards because of their position in government. [Emphasis in original.]

[212]   In considering this significance of this passage, it is important to remember that L’Heureux-Dubé J.’s focus is on government employees who actually receive benefits from persons who have dealings with the government, as opposed to the liability of persons who provide or offer to provide such benefits. This is because s. 121(1)(c), which was the provision at issue in Hinchey, deals only with officials who receive benefits and not with those who give them. Thus, I do not think that Hinchey can be said to determine the contours of the liability of the giver, particularly whether the giver can be convicted under s. 121(1)(a)(i) only if the official provides or promises to provide the giver with a benefit in return.

[213]   Indeed, L’Heureux-Dubé J.’s statements that “no actual return needs to be made to be trapped under the section” and “it is sufficient for culpability if the gift was given for an ulterior purpose, in that it was designed to compromise the integrity of the employee” seem to suggest that a person giving a benefit to a government employee with what L’Heureux-Dubé J. describes as an “ill motive” could be convicted under s. 121(1)(a)(i), even if they did not in fact obtain such a return benefit.

[214]   In short and on balance, I do not regard L’Heureux-Dubé J.’s comments in Hinchey as being conclusive either way on the liability of a person providing a benefit, since this was not a live issue in the case.

(c)         Cogger

[215]   The final case relied upon by the trial judge was Cogger which, once again, was focused on the liability of a public official who received a benefit from a third-party. However, unlike in Hinchey, Cogger involved a prosecution under s. 121(1)(a)(ii).

[216]   The import of the case requires a consideration of certain key facts. Prior to his appointment to the Senate, Michael Cogger had been retained as a lawyer by a third-party in return for corporate law work as well as for lobbying on the party’s behalf for government grants and contracts. Cogger continued this work on behalf of his client, and received compensation for doing so, after his appointment to the Senate in May 1985. Because Cogger was from that point onward a public official (i.e. a senator), he was charged with having accepted a benefit from a third-party in return for providing assistance or exercising influence in connection with a matter of business relating to the government.

[217]   Cogger was acquitted at trial on the basis that the compensation he received from the third-party client was in his capacity as their lawyer, rather than as a public official. The trial judge emphasized that Cogger was compensated not just for his lobbying activities in connection with government grants, but also for legal and investment advice, in the same manner as he had prior to his Senate appointment. As such, the trial judge found that Cogger did not have the necessary guilty mind or moral turpitude required for him to be convicted under s. 121(1)(a)(ii). The Québec Court of Appeal dismissed the Crown’s appeal.

[218]   The Supreme Court of Canada set aside the acquittal and ordered a new trial. L’Heureux-Dubé J., who wrote on behalf of a unanimous Supreme Court, held that a public official could be convicted under s. 121(1)(a)(ii) even if the benefit they received was not conferred in their official capacity. All that was necessary was that the person be an official, and that they receive a benefit in connection with dealings with the government. For this reason, it did not matter that Cogger was being compensated in his capacity as a lawyer rather than his capacity as a senator. Nor was it necessary that Cogger have a “corrupt intention” in rendering assistance to the third-party; it was sufficient that he did so in accordance with arrangements that had been in place prior to his appointment.

[219]   In the course of her discussion, L’Heureux-Dubé J. acknowledged that in para. 21 of Hinchey (the passage quoted above), she had stated that the purpose of s. 121(1)(a) was to avoid situations where the integrity of government officials was compromised “when they accept rewards because of their position in government” (emphasis added). She agreed that, at first glance, this seemed to support Cogger’s contention that he was entitled to be acquitted because his compensation was provided in his capacity as a lawyer rather than as a senator. But, as L’Heureux-Dubé J. explained at para. 22, when Hinchey was read in context, it was apparent that it did not matter whether the compensation was received qua government employee or in some other capacity:

As stated at the outset, the object of s. 121(1)(a) is to prevent government officials from taking benefits from a third-party in exchange for conducting some form of business on that party’s behalf with government. The essence of the section, therefore, is the quid pro quo arrangement, which is not a required element under s. 121(1)(c). The term “position in government” must also be examined in this regard. It is the employee’s position in dealing with government while a member of government that is essential to make the action criminal. [Citations omitted.]

[220]   Note that L’Heureux-Dubé J. is here concerned only with the liability of a public official who actually receives a benefit, rather than the person or party providing it. Moreover, she was focused on the narrow issue of whether such an official must receive the benefit qua government employee or otherwise in order to be convicted under s. 121(1)(a). Yet the trial judge interpreted L’Heureux-Dubé J.’s reference to use of the term “quid pro quo arrangement” to mean that a person providing a benefit could only be convicted under s. 121(1)(a)(i) if they received a benefit from the official in return.

[221]   With respect, this ignores the particular context and the narrow issue that was the focus of L’Heureux-Dubé J.’s analysis. It also ignores the other statements made by L’Heureux-Dubé J. within the same paragraph in Hinchey to the effect that “no actual return needs to be made to be trapped under the section” and, further, that “[i]t is sufficient for culpability if the gift was given for an ulterior purpose.”: at para. 21. These other comments, not revisited in Cogger, seem inconsistent with the suggestion that Cogger stands for the proposition that a person providing a benefit to a public official must receive something in return in order for them to be liable under s. 121(1)(a)(i)—an issue that did not arise in the case.

[222]   I conclude that, read in context and in its entirety, Cogger does not determine whether a person providing a benefit to a public official for the purpose of influencing them to act in certain ways must receive a benefit in return before they can be convicted under s. 121(1)(a)(i).

(6)         Conclusion on “as consideration for” in s. 121(1)(a) of the Code

[223]   The use of the words “as consideration for” in s. 121(1)(a) refers to the purpose for which a benefit is offered or given to a public official, on the one hand, or demanded or accepted by them on the other. Specifically, the benefit must either be offered or given to the official, or demanded or accepted by them, with the intention by that particular party (either the offeror or the public official) that the official act or refrain from acting in connection with the matters described in paras. (iii) or (iv) of s. 121(1)(a). However, the liability of the offeror or giver is assessed independently from that of the public official.

[224]   It follows that, in the case of the offeror or giver, it is not necessary that the public official accept the benefit, agree to act in the manner proposed, be capable of so acting, or actually provide anything of value to the offeror or giver.

[225]   This understanding of the meaning of “as consideration for” in s. 121(1)(a) not only gives proper effect to the underlying purpose of the provision but is consistent with the manner in which the identical “as consideration for” language has been interpreted in other analogous Code provisions.

D.           “AS CONSIDERATION FOR” IN S. 3(1)(A) OF THE CFPOA

[226]   Parliament enacted the CFPOA in 1998 in order to fulfil Canada’s obligations as a party to the Bribery Convention. I therefore begin by considering the nature of the obligations undertaken by Canada under the Bribery Convention before turning to the proper interpretation of s. 3(1) of the CFPOA.

(a)         The Bribery Convention

[227]   It is now widely accepted that no government or market economy can function effectively if it suffers from high levels of bribery. As the Supreme Court noted in World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 at para. 1, corruption “undermines confidence in public institutions, diverts funds from those who are in great need of financial support, and violates business integrity.” These deleterious effects are particularly evident when public officials in developing countries take bribes in the award of contracts to foreign businesses in areas such as road construction, water infrastructure, medicines or electricity: see the Bribery Convention, “Background Information”, at p. 3.

[228]   In order to respond to this pressing global problem, the member nations of the OECD adopted the Bribery Convention in November 1997. Its focus is on the “supply-side” of the bribery transaction, namely, on the person or entity offering, promising or giving a bribe.

[229]   Under the Bribery Convention, member nations’ laws must make it a criminal offence not merely to give bribes, but to offer bribes that may or may not be accepted. This is evident from the wording of Article 1.1 of the Bribery Convention, which defines the offence of “bribery of a foreign public official” as follows:

…intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third-party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. [Emphasis added.]

[230]   The words “in order that the official act or refrain from acting” describes the purpose for which the pecuniary or other advantage is conferred, without regard to whether the foreign public official accepts or acts in accordance with the terms offered. Consistent with the purpose of the Bribery Convention, which is to focus on the “supply-side” of the bribery transaction, the relevant conduct and intention is that of the briber rather than the foreign public official to whom the bribe is offered or given.

[231]   In line with this interpretation, the following provisions establish that, as a party to the Bribery Convention, Canada undertook to enact legislation making it an offence for a person to offer or agree to bribe a foreign public official, whether or not any bribe is actually paid or accepted by the foreign public official:

•        Article 1.2 defines bribery of a foreign public official as including “complicity in, including incitement, aiding and abetting, or authorization of an active bribery of a foreign public official.”;

•        Article 1.2 provides that “attempt and conspiracy to bribe a foreign public official shall be criminal offences to the same extent as attempt and conspiracy to bribe a public official of that Party.”;

•        Article 1.4 (c) stipulates that the reference in Article 1.1 to “act or refrain from acting in relation to the performance of official duties” includes “any use of the public official’s position, whether or not within the official’s authorized competence”; and

•        Article 2 specifies that each party “shall take such measures as may be necessary, in accordance with its legal principles, to establish liability of legal persons for the bribery of a foreign public official”.

[232]   As these provisions make clear, the Bribery Convention is intended to criminalize all acts of bribery, not just those that are successful, with the goal of deterring those who would seek business advantage through the offer of bribes to foreign public officials from doing so.

(b)         Section 3 of the CFPOA

[233]   The relevant provision of the CFPOA is s. 3(1), which provides as follows:

3(1) Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official       

(a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or

(b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.

[234]   The key issue on this appeal is whether the use of the words “as consideration for” in s. 3(1)(a) requires that a person offering or giving a benefit to a foreign public official must themselves receive a contemplated benefit or advantage in return, or whether it is sufficient to establish liability under the provision if the benefit is offered or given with the intention of inducing the foreign public official to act in a certain way, regardless of whether the foreign public official actually performs the desired action (or has promised to do so).

[235]   In my view, the latter interpretation – whereby the words “as consideration for” in s. 3(1)(a) merely describe the intention or purpose of the person offering or giving the benefit – is the correct one. I say so for the following four reasons.

[236]   First, like Canada’s domestic anti-bribery legislation, s. 3(1) expressly provides that the offence applies to any person who “offers or agrees to give or offer” a benefit or advantage to a foreign public official. Since the mere making of such an offer, or agreeing to do so, is sufficient to establish liability (provided that the offer is made with the relevant intention), it is not necessary for the foreign public official to agree with or accept the offer. A person who offers a benefit or advantage to a foreign public official may have no idea as to whether the foreign public official will accept or act on the offer. Therefore, it must be possible for the person offering the benefit to be liable under s. 3(1), whether or not they have been promised or received anything from the foreign public official in return.

[237]   Second, s. 3(1) identifies two distinct but related objectives or outcomes that the person offering or giving the benefit must have in mind. The first desired outcome is to cause the public official to take some action or refrain from doing so “in connection with the performance of the official’s duties or functions” (s. 3(1)(a)); while the second desired outcome is that the foreign public official “use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions” (s. 3(1)(b)).

[238]   The words “as consideration for” apply only to the first desired outcome but not the second. It was on this basis that the trial judge concluded that the person offering or giving the benefit in return for performance of an act or omission must receive something in return to establish liability under s. 3(1)(a), but that no such requirement applied under s. 3(1)(b), which merely requires that the person offering or giving the benefit is seeking “to induce” the foreign public official to exercise influence, regardless of whether the foreign public official actually does so.

[239]   With respect, I see no meaningful distinction in principle between persons corruptly offering or giving benefits to a foreign public official to obtain the first outcome as opposed to the second. In either case the person offering or giving the benefit is equally morally culpable. There is no principled basis for distinguishing the elements that the Crown must prove where the first outcome is sought as opposed to those in which the second outcome is sought.

[240]   This can be illustrated by the following hypothetical example.

[241]   Suppose that under the laws of a particular jurisdiction, certain government contracts require the personal approval of a government minister. Two Canadian corporations are seeking a government contract which requires the minister’s approval. While neither corporation has had any prior dealings with the foreign jurisdiction involved, they falsely believe that they must offer bribes to public officials in foreign jurisdictions as the “price of doing business”. Thus, Corporation A offers a cash payment to the Minister directly, in the hopes that the Minister will award them the contract, while Corporation B offers an identical cash payment to the Minister’s Chief of Staff, in the hopes that the Chief of Staff will use their influence with the Minister so that the Minister will award the contract to Corporation B. However, both the Minister and the Chief of Staff refuse the offer, report the matter to the local police, and the contract is subsequently awarded to Corporation C, which has not offered or paid any bribe.

[242]   Both Corporation A and B are charged in Canada with offences under s. 3(1) of the CFPOA: Corporation A is charged under s. 3(1)(a) with having offered a benefit to the Minister “as consideration for an act or omission” by the Minister, namely, the award of the contract; whereas Corporation B is charged under s. 3(1)(b) with having offered a benefit to the Chief of Staff “to induce the official to use his or her position to influence any acts or decisions of the foreign state”, namely, the award of the contract by the Minister on behalf of the government to Corporation B.

[243]   Under the interpretation of s. 3(1) adopted by the trial judge, Corporation A would be entitled to be acquitted because it had not been promised or received any benefit or advantage in return for its corrupt offer, whereas Corporation B would be convicted because the Crown need only prove that it offered a bribe to a foreign public official seeking the desired outcome under s. 3(1)(b), regardless of whether or not any benefit or advantage was actually received in return. Yet there is no principled justification for these different outcomes, since the moral culpability of Corporation A and B is identical and, while they have made their corrupt offers to different officials, they are each seeking the identical outcome, namely the award of the same contract.

[244]   Parliament is assumed to have legislated coherently, and thus cannot have intended such an irrational and arbitrary result. There is, in fact, no meaningful difference between those who corruptly seek acts or omissions from a particular foreign official directly, as opposed to those who corruptly seek to have a second foreign official exercise influence on their behalf so that the first foreign public official will perform the identical act or omission. This is reinforced by the fact that under s. 121(1)(a) of the Code, the words “as consideration for” applies to “cooperation, assistance, exercise of influence or an act or omission” by the public official, without any distinction between the exercise of influence or the performance of an act or omission (emphasis added).

[245]   These anomalies and arbitrary outcomes disappear if the words “as consideration for” in s. 3(1)(a) of the CFPOA are interpreted as in substance identical to the words “to induce” in s. 3(1)(b). Thus, since the words “to induce” merely describe the purpose or desired outcome that the person offering the benefit has in mind, the same must also be true of the words “as consideration for” in s. 3(1)(a). As such, “as consideration for” merely describes the purpose or outcome that the person giving or promising the benefit has in mind, and nothing more.

[246]   Third, contrary to the interpretation adopted by the trial judge, interpreting the words “as consideration for” as merely referring to the purpose or intention of the briber is consistent with the use of this language in Canada’s domestic anti-bribery legislation. This has been considered in detail in the previous section of these reasons, and that analysis will not be repeated here.

[247]   Fourth, Canadian legislation is presumed to conform to international law. Courts must strive to avoid constructions of domestic law which would place Canada in violation of its international obligations. This presumption is only ousted where the wording of the statute clearly compels that result: Hape, at para. 53.

[248]   The interpretation of s. 3(1)(a) adopted by the trial judge, however, would place Canada in breach of its international obligations under the Bribery Convention. As previously explained, the Bribery Convention requires Canada to make it a criminal offence for persons to offer bribes to foreign public officials, regardless of whether those officials act or agree to act in accordance with the proposals. The effect of the trial judge’s interpretation is to add an additional essential element to the offence of foreign bribery. Not only is this contrary to the definition of bribery in the Bribery Convention, but it would undermine the purpose of the Bribery Convention, which is to effectively deter persons who falsely believe that the payment of a bribe is necessary in foreign jurisdictions from acting on those beliefs. There are no clear words in the CFPOA that would compel this result. In fact, as explained throughout these reasons, the correct interpretation of s. 3(1)(a) conforms in all respects with Canada’s obligations as a party to the Bribery Convention.

[249]    I conclude that the words “as consideration for” in s. 3(1)(a) of the CFPOA refer to the purpose or intention of the person offering or giving a benefit, and do not require that the public official accept, act upon, or provide a benefit in return.

E.           THE TRIAL JUDGE ERRED IN HER INTERPRETATION OF S. 3(1)(A) AND THE ACQUITTAL MUST BE SET ASIDE

[250]   It follows from the above analysis that the trial judge erred in her interpretation of s. 3(1)(a) by requiring the Crown to prove that Kereteletswe provided a “benefit or advantage in business” to the respondent through the three letters in December 2015 and January 2016, in return for the benefit that the respondent provided to Kereteletswe through the U.S. trip.

[251]   This, however, is not sufficient in itself to justify allowing the appeal. To successfully appeal an acquittal, the Crown must show that the trial judge committed an error that had a material impact on the verdict: R. v. Sparks-MacKinnon, 2022 ONCA 617, 83 C.R. (7th) 56, at para. 11.

[252]   The reasons of the trial judge make clear that this requirement is satisfied in this case. In the concluding section of her reasons, the trial judge points out that, if the respondent had been charged under s. 3(1)(b) where the words “as consideration for” do not apply, the result might well have been different because of the “arguably broader scope of conduct” captured by s. 3(1)(b). However, because the respondent was not charged under s. 3(1)(b), whether or not he might have been found guilty in that event is “beyond the scope of the issues to be decided in this case.”

[253]   This demonstrates that the trial judge’s mistaken interpretation of the words “as consideration for” were critical to the result and, had she interpreted them correctly, she might well have come to a different conclusion. There is thus no question that the error of law in this case had a material impact on the verdict, and it must therefore be set aside.

F.           Disposition

[254]   For the above reasons, I would allow the appeal, set aside the acquittal and order a new trial.

Released: September 23, 2025 “E.E.G.”

“P.J. Monahan J.A.”

 

APPENDIX

Criminal Code, R.S.C. 1985, c. C-46, s. 121

Frauds on the government

121 (1) Every one commits an offence who

(a) directly or indirectly

(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(iii) the transaction of business with or any matter of business relating to the government, or

(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

(b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place;

(c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official;

(d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including themselves, to an office;

(e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including themselves, to an office; or

(f) having made a tender to obtain a contract with the government,

(i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or

(ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.

Contractor subscribing to election fund

(2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration

(a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or

(b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province.

Punishment

(3) Every person who commits an offence under this section is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

 

Code criminel, L.R.C. 1985, c. C-46, art. 121

Fraudes envers le gouvernement

121 (1) Commet une infraction quiconque, selon le cas :

a) directement ou indirectement :

(i) soit donne, offre ou convient de donner ou d’offrir à un fonctionnaire ou à un membre de sa famille ou à toute personne au profit d’un fonctionnaire,

(ii) soit, étant fonctionnaire, exige, accepte ou offre ou convient d’accepter de quelqu’un, pour lui-même ou pour une autre personne,

un prêt, une récompense, un avantage ou un bénéfice de quelque nature que ce soit en considération d’une collaboration, d’une aide, d’un exercice d’influence ou d’un acte ou omission concernant :

(iii) soit la conclusion d’affaires avec le gouvernement ou un sujet d’affaires ayant trait au gouvernement,

(iv) soit une réclamation contre Sa Majesté ou un avantage que Sa Majesté a l’autorité ou le droit d’accorder,

que, de fait, le fonctionnaire soit en mesure ou non de collaborer, d’aider, d’exercer une influence ou de faire ou omettre ce qui est projeté, selon le cas;

b) traitant d’affaires avec le gouvernement, paye une commission ou une récompense, ou confère un avantage ou un bénéfice de quelque nature, directement ou indirectement, à un employé ou à un fonctionnaire du gouvernement avec lequel il traite, ou à un membre de sa famille ou à toute personne au profit de l’employé ou du fonctionnaire, à l’égard de ces affaires, à moins d’avoir obtenu le consentement écrit du chef de la division de gouvernement avec laquelle il traite;

c) pendant qu’il est fonctionnaire ou employé du gouvernement, exige, accepte ou offre ou convient d’accepter d’une personne qui a des relations d’affaires avec le gouvernement une commission, une récompense, un avantage ou un bénéfice de quelque nature, directement ou indirectement, pour lui-même ou pour une autre personne, à moins d’avoir obtenu le consentement écrit du chef de la division de gouvernement qui l’emploie ou dont il est fonctionnaire;

d) ayant ou prétendant avoir de l’influence auprès du gouvernement ou d’un ministre du gouvernement, ou d’un fonctionnaire, exige, accepte ou offre, ou convient d’accepter, directement ou indirectement, pour lui-même ou pour une autre personne, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie d’une collaboration, d’une aide, d’un exercice d’influence ou d’un acte ou d’une omission concernant :

(i) soit une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit la nomination d’une personne, y compris lui-même, à une charge;

e) donne, offre ou convient de donner ou d’offrir, directement ou indirectement, à un ministre du gouvernement ou à un fonctionnaire ou à quiconque au profit d’un ministre ou d’un fonctionnaire, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie d’une collaboration, d’une aide, d’un exercice d’influence ou d’un acte ou d’une omission du ministre ou du fonctionnaire concernant :

(i) soit une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit la nomination d’une personne, y compris lui-même, à une charge;

f) ayant présenté une soumission en vue d’obtenir un contrat avec le gouvernement :

(i) soit donne, offre ou convient de donner ou d’offrir, directement ou indirectement, à une autre personne qui a présenté une soumission, à un membre de la famille de cette autre personne ou à quiconque au profit de cette autre personne, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie du retrait de la soumission de cette autre personne,

(ii) soit exige, accepte ou offre ou convient d’accepter, directement ou indirectement, d’une autre personne qui a présenté une soumission, une récompense, un avantage ou un bénéfice de quelque nature, pour lui-même ou pour une autre personne, en contrepartie du retrait de sa propre soumission.

Entrepreneur qui souscrit à une caisse électorale

(2) Commet une infraction quiconque, afin d’obtenir ou de retenir un contrat avec le gouvernement, ou comme condition expresse ou tacite d’un tel contrat, directement ou indirectement souscrit, donne ou convient de souscrire ou de donner à une personne une contrepartie valable :

a) soit en vue de favoriser l’élection d’un candidat ou d’un groupe ou d’une classe de candidats au Parlement ou à une législature provinciale;

b) soit avec l’intention d’influencer ou d’affecter de quelque façon le résultat d’une élection tenue pour l’élection de membres du Parlement ou d’une législature provinciale.

Peine

(3) Quiconque commet une infraction prévue au présent article est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de cinq ans;

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.