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Criminal - Corruption of Foreign Public Officials Act (CFPOA). R. v. Arapakota
In R. v. Arapakota (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here from an acquittal from a prosecution under "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".
Here the court summarizes the ruling, and reviews the CFPOA and some of it's history:[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. ....
[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.
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[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.
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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. . R. v. Arapakota
In R. v. Arapakota (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here from an acquittal from a prosecution under "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".
Here the court considers elements of the CFPOA s.3(1)(a) ['Bribing a foreign public official'] offence: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 CanLII 157 (SCC), [1996] 3 S.C.R. 1128; and R. v. Cogger, 1997 CanLII 314 (SCC), [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). The court continues at paras 105-132 on this theme.
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