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JURISDICTION - Over offence

Monday, July 17, 2017 @ 1:03 PM  


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Appeal by the accused, Karigar, from a conviction for agreeing to offer a bribe to a foreign public official contrary to s. 3 of the Corruption of Foreign Public Officials Act (Act). The accused was the paid agent of a group of Canadian companies that sought to secure a major contract from Air India for the provision of facial recognition software and related equipment. The Crown alleged that the accused assumed a leading role in a conspiracy to offer bribes to Air India officials and India's former Minister of Civil Aviation in order to influence the bidding process. The contract was never awarded to any entity represented by the accused. The Crown relied on, among other things, evidence of a vice-president with the Canadian company given as an un-indicted co-conspirator who was granted immunity from prosecution. No evidence was called on behalf of the accused. The defence submitted that the Crown failed to prove the existence of an agreement or conspiracy involving the accused and that Canada lacked territorial jurisdiction over the offence. The accused was convicted. The trial judge found that several aspects of the evidence supported an inescapable conclusion that the accused was an active and knowledgeable part of a conspiracy to offer bribes to Air India officials to obtain the Air India contract. Territorial jurisdiction over the offence was established through a real and substantial link between the offence and Canada based on the accused's role as a Canadian businessman, his residence in Toronto, and his contemplation of bribery as a means of securing an advantage for an Ottawa company. The accused appealed.

HELD: Appeal dismissed. The trial judge did not misapply the legal test in finding a substantial link between the offence and Canada. The Libman test was properly stated and applied. The substantial link test was not limited to the essential elements of the offence. The circumstances supported the conclusion that aspects of the transaction linked to Canada constituted a real and substantial connection. The trial judge did not misinterpret the term "agree" in s. 3 of the Act, as there was no limiting language placed on who could constitute a party to a bribery offer. To read in any such limitation would be contrary to the policy underlying the Act. There was no material error or misapplication of the law in respect of the admission of the evidence of co-conspirators. No misapprehension of the evidence was established.

R. v. Karigar, [2017] O.J. No. 3530, Ontario Court of Appeal, K.N. Feldman, G.I. Pardu and M.L. Benotto JJ.A., July 6, 2017. Digest No. TLD-July172017001