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Criminal - Bribery (Domestic). 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 canvassed CCC domestic anti-bribery legislation and some of it's history: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.
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