



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karigar, 2017 ONCA 576

DATE: 20170706

DOCKET: C59321

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nazir Karigar

Appellant

Israel Gencher, Norman Keith and Tala Khoury, for the
    appellant

Jeanette Gevikoglu and Moray Welch, for the respondent

Heard: May 29, 2017

On appeal from the conviction entered on August 15, 2013
    by Justice Charles T. Hackland of the Superior Court of Justice, with reasons
    reported at 2013 ONSC 5199.

Feldman J.A.:

[1]

The appellant was convicted by Hackland J. of agreeing to offer a bribe
    to a foreign public official, contrary to s. 3(1)(b) of the
Corruption of Foreign
    Public Officials Act
, S.C. 1998, c. 34 (the Act). As an agent or
    employee of Cryptometrics Canada, a Canadian subsidiary of an American company,
    the appellant agreed with other employees and agents of the company to bribe
    Indian officials in order to secure a multi-million dollar contract with Air
    India for the Canadian company. The evidence of what occurred was overwhelming;
    it came in large part from two sources: the testimony of an unindicted
    co-conspirator who explained the documentation and described what occurred, as
    well as from the appellant himself in emails and in a statement to the RCMP.

[2]

There are three key grounds of appeal. The main basis of the appeal is the
    appellants claim that there was no sufficient connection to Canada to give the
    court territorial jurisdiction over what occurred. The appellant also
    challenges the meaning of the word agree within s. 3 of the Act: he submits
    that the Crown must prove an agreement between the accused and the foreign
    public official and that it is not sufficient to prove a conspiracy to offer a
    bribe to a foreign public official. Third, the appellant says the trial judge
    erred in his application of the co-conspirators exception to the hearsay rule
    and misapprehended some of the evidence.

[3]

For the reasons that follow, I would not give effect to any of the
    grounds of appeal.

Facts and findings of the trial judge

[4]

As mentioned, the Crowns case relied on the testimony of an unindicted
    co-conspirator, Robert Bell; email communications seized from computer drives
    at Cryptometricss offices in Kanata, Ontario (many of those emails authored by
    the appellant himself); as well as admissions made by the appellant to the
    RCMP, the Canadian Assistant Trade Commissioner in Mumbai and to the US
    Department of Justice. The appellant did not call any evidence.

[5]

At the relevant times, Robert Bell was Vice-President, Business
    Development, for Cryptometrics Canada. He handled the technical and some
    financial components of the Cryptometrics Canada bid on the Air India project.
    The appellant handled strategy to win the contract, including communications
    with Air India officials and the proposed offering of bribes. Two US-based Cryptometrics
    executives  Mario Berini, the Chief Operating Officer of Cryptometrics Canada
    and its parent company Cryptometrics Corporation and Robert Barra, Chief
    Executive Officer of the two related companies  were responsible for making
    the ultimate strategic decisions.

[6]

In June 2005, the appellant approached BelI with a business proposal.
    The appellant said he was president of IPCON, a firm that had business dealings
    in India. The appellant explained he had good connections with certain Air
    India officials and advised that the airline was seeking technology to deal
    with security issues. The two discussed whether Cryptometricss biometric facial
    recognition technology might provide a solution.

[7]

In September 2005, the appellant and his colleague, Mehul Shah, met with
    Bell in Ottawa to discuss a passenger identification solution for Air India
    using Cryptometricss technology. The proposal was that the appellant and Shah
    would help Cryptometrics Canada obtain this work from Air India in exchange for
    30 percent of the expected revenue.

[8]

Also in September 2005, Bell travelled to Mumbai, India, as
    Cryptometrics Canadas representative. The appellant and Bell met with the
    Canadian Assistant Trade Commissioner in Mumbai, to discuss doing business in India.
[1]
The appellant arranged for Bell to meet senior Air India officials, in
    particular, Hasan Gafoor, Air Indias Director of Security and his Deputy,
    Captain Mascarenhas. The appellant also arranged for Bell to give a
    presentation to some 30-40 people on Cryptometrics Canadas facial recognition
    technology in the Air India offices.

[9]

When Bell returned from India, he reported what he had learned to Berini
    and Barra, who decided to pursue the contract. In the months that followed,
    Cryptometrics Canada, with the appellants help, prepared for the project.

[10]

On January 19, 2006, the appellant, with Gafoor and Captain Mascarenhas,
    travelled to Canada to visit Cryptometricss offices in Kanata. A company named
    Cryptometrics India was subsequently established with the appellant as its
    executive director.

[11]

On February 24, 2006, Air India released its Request for Proposals (RFP)
    to supply a biometric passenger identification security system. Under the
    executive direction of Berini and with guidance and strategic advice from the
    appellant, Bell and Cryptometrics Canada began to prepare a proposal in response
    to the RFP.

[12]

In April 2006, Bell and Berini met with the appellant, Shah and Mehta
    (Shahs partner) in a hotel room in Mumbai to discuss submission of the
    Cryptometrics Canada bid. During this meeting, Shah explained that Indian
    officials would have to be paid in order for Cryptometrics Canada to obtain the
    contract. The trial judge explained that this appeared to be the first time the
    payment of bribes was openly discussed in front of Bell.

[13]

After Bell returned to Ottawa, Berini sent him a new version of the
    financial spreadsheets. These spreadsheets listed Air India officials who would
    be paid bribes and the amount of money and Cryptometricss shares these
    officials would be offered. The appellant would subsequently admit in a
    statement to the RCMP that he furnished the information reflected in the
    spreadsheets.

[14]

In the weeks that followed, Bell and Berini, with the appellants help,
    continued to develop Cryptometrics Canadas proposal in answer to the RFP. The
    appellant provided Bell with inside information regarding potential competitors
    for the contract. In June 2006, Bell, the appellant and other Cryptometrics
    Canada representatives visited India to advance Cryptometrics Canada's
    proposal.

[15]

Later, under the appellants direction and advice, the Cryptometrics
    team prepared a second proposal for the contract, using the appellants company
    IPCON, creating the appearance of a separate competitive bidder using
    Cryptometrics Canada technology but at a higher price. This second proposal was
    designed to create the false impression of a competitive bidding situation,
    providing Cryptometrics Canada with certain procedural advantages.

[16]

On June 19, 2006, the appellant e-mailed Bell and Berini, requesting $200,000
    for Captain Mascarenhas. The $200,000 was subsequently transferred from
    Cryptometrics USA to the appellant's bank account in Mumbai. The trial judge
    found that this money was intended for the purpose of bribing Captain
    Mascarenhas.

[17]

The trial judge listed a series of evidentiary references that satisfied
    him beyond a reasonable doubt that the appellant was involved in a conspiracy
    to offer bribes to Air India officials in order to win the contract for Cryptometrics
    Canada. Those evidentiary references included:

·

In
    April 2006, Bell, together with the appellant, Berini, Shah and Mehta met in a
    hotel room in India to discuss the company's proposal. Shah advised that more
    money was required because officials would have to be paid in order to obtain
    the contract;

·

A
    spreadsheet budgeting intended bribes to identified officials was circulated
    between Berini, Bell, Barra and Shah. The appellant admitted in his statement
    to RCMP Sergeant Bedard that he was the initial author of the list of persons
    to be offered bribes and the amounts;

·

On
    June 16, 2006, via e-mail, the appellant asked that arrangements be made to pay
    funds in regards to the selection of two companies (Cryptometrics Canada and
    IPCON) as the only compliant bidders so that the deal would not get blown;

·

On
    June 19, 2006, the appellant e-mailed Berini and Bell to get $200,000 for the
    Captain. The Captain figures on the spreadsheet as an individual who is to
    receive shares and upfront cash. The Captain was the co-chair of the
    selection committee for the Air India project;

·

On
    June 21, 2006, the appellant e-mailed Berini, stating that the Captain and MMD need
    to see the money, and that he needed it the following day. The same day
    $200,000 was transferred from Cryptometrics USA to the bank account of the
    appellant in Mumbai;

·

On
    July 18, 2006, the appellant told Berini and Bell that he was ready to push the
    shortlist but that MMD had problems with the valuation of the shares. The MMD
    is listed on the bribe spreadsheet as an individual who is to receive shares,
    as bribes;

·

On
    or around August 3, 2006, IPCON and Cryptometrics were shortlisted as the only
    two qualified bidders, as planned. The appellant informed Berini that the CMD
    was to be in New York and wanted $5000 spending money. He further stated that
    the Captain and the CMD were giving pressure about the shares;

·

On
    August 7, 2006, the appellant wrote to Barra and Berini to say that the
    selection had been completed, that Cryptometrics and IPCON were the two
    companies qualified and that Cryptometrics would win the commercial round
    because its price was substantially lower than that of IPCON;

·

On
    September 3, 2006, Berini e-mailed Bell a copy of the draft Air India/
    Cryptometrics Canada agreement and the latest version of the spreadsheet.
    Berini and Bell discussed via e-mail how the bribes were to be amortized in
    order to maintain the profitability of the project;

·

On
    March 6, 2007, Robert Barra, CEO of Cryptometrics USA, and the appellant
    entered into a Letter of Agreement. The agreement provided that US$250,000 in
    Indian Rupees was to be transferred to the appellants bank account in Mumbai
    in order to secure the Air India contract. The agreement was entered into via
    e-mail correspondence. If the contract was not secured, the money was to be
    returned. The money was transferred from Cryptometrics to the appellant's bank
    account on that date;

·

On
    April 17, 2007, Barra asked Berini the following question by e-mail: "Are
    we finally going to receive the letter today from A.I.? It has been over 6
    weeks. I cannot understand these delays on a continuous basis. The six weeks
    referred to by Barra refers to the amount of time since the $250,000 transfer
    was made;

·

On
    April 20, 2007, the appellant sent an e-mail saying that he had met with PP
    (which stands for Praful Patel, the Minister of Civil Aviation). The appellant stated
    that he and Patel discussed the increments and that the project would be
    cleared right away;

·

On
    May 15, 2007, the appellant and Berini met with Annie Dubé at the Consulate
    General for Canada in Mumbai. During the meeting, the appellant stated that
    Cryptometrics had paid a bribe to Praful Patel (Minister of Civil Aviation -
    India) through an agent in order to clear the process and obtain the Air India
    contract. The appellant also stated that their agent confirmed the bribe money
    had been received by Patel. The appellant did not disclose the identity of the
    agent, nor the amount of money that was paid. The appellant also talked about
    corruption in general in India and specifically how government figures would
    get up to eight percent of the value of a contract as a bribe payment. The
    appellant stated but we know he received the money and you didn't hear that
    from us. He continued that we went to an agent and he received something. And
    we got information from the agent that the Minister received it. Dubé
    testified that she was shocked and expressed that they could be prosecuted (or
    sued);

·

On
    July 12, 2007, the appellant sent an e-mail to Berini containing the following
    comments: After PP took the money, I thought all was done and went ahead. The
    appellant added: I guess by now you know why Patel has the Cryptometrics
    Project on hold! The appellant made suggestions on how to get Patel back on
    board with Cryptometrics and stated the following: someone needs to get all
    the separate thinking on one track and make it work... will need the backing of
    Thulasidas and Mehra, if you are in touch with Bankoti, ask him to dig out more
    about it. The appellant asked Berini: What have you done about the funds with
    PP? Have you asked and got them back?;

·

On
    July 28, 2007, the appellant sent an e-mail to Bell asking him to review a
    draft of an e-mail he was going to send to Berini who seemed to have cut off
    all contact with him for the past two weeks. He stated the following: I have
    no idea what your intentions are. I have been in touch with Wagchaure and
    Dhoble and they say they are ready and able to recover dues. I don't know if
    you want to take this route. The appellant explained that there was a lot he
    could not discuss via e-mail and wanted to meet with Berini;

·

On
    August 13, 2007, one Buddy sent an e-mail to the Fraud Section (FCPA) of the
    US Department of Justice stating he had information about US citizens paying
    bribes to foreign officers and inquired about reporting the matter. The
    appellant admitted that he is Buddy (the appellant's statement of May 27,
    2010 to the RCMP);

·

The
    appellant described the scheme in an e-mail dated January 19, 2008:

There was a tender put out by Air India (Government of
    India enterprise) for a biometric security system, Cryptometrics bid on the
    system.

Cryptometrics Paid USD 200,000 to make sure that only 2
    companies were technically qualified.

They paid $250,000 for the minister to 'bless' the
    system. There are documents executed to return the funds if the contract is not
    awarded. There are recordings asking for the money back.

The People involved are Mr. Robert Barra, US citizen,
    CEO of Cryptometrics and Dario Berini, COO of Cryptometrics, also US Citizen.

I am a Canadian Citizen on contract with the Canadian
    subsidiary of Cryptometrics.

What about my immunity?

·

On
    September 4, 2007, Berini sent an e-mail to the appellant, copying Barra. The
    e-mail was in regards to the delay in the approval of the Air India tender and
    stated: As you know, sizable investments were made to win the contract on top
    of winning this tender through the formal process. Cryptometrics will not
    extend itself further without assurances that the contract with AI will be
    formally awarded to Cryptometrics;

·

On
    November 2, 2007, Berini and Barra met with Shailesh Govindia, CEO of Emerging
    Markets Group (EMG) at the Cryptometrics Inc. office in New York, USA. Govindia
    was hired in another attempt to close the Air India deal. To make this happen,
    it was agreed that Cryptometrics Inc. (USA) would initially transfer US$650,000
    to Govindia: US$500,000 would be given to Praful Patel and US$150,000 was for
    Govindia's expenses. After the contract was approved/signed, Praful Patel would
    receive US$1.5 million and Govindia would get US$250,000. They also discussed a
    deferred success fee of US$2 million for Praful Patel and US$1 million for
    Govindia/EMG. Barra wanted Govindia to hold the funds until the contract was
    signed. He did not want to see happen what happened last time;

·

On
    November 9, 2007, US$650,000 was transferred from Cryptometrics USAs bank
    account to the account of EMG.

The Trial Judges Decision

[18]

Based on the foregoing, the trial judge was satisfied beyond a
    reasonable doubt that the appellant was involved in a conspiracy to offer
    bribes to Air India officials in order to win the contract for Cryptometrics
    Canada. The evidence revealed that Berini and Barra eventually lost trust in
    the appellant, but proceeded to attempt to have the contract awarded through
    further monetary bribes facilitated by Govindia.

[19]

The trial judge held that the hearsay evidence of Berini, Barra and Shah
    was admissible against the appellant as evidence from co-conspirators. Applying
    the
R. v. Carter
, [1982] 1 S.C.R. 938 test,
[2]
he was satisfied beyond a reasonable doubt that a conspiracy existed to bribe
    Air India officials to obtain the contract, and, based on the evidence of Bell
    and of the appellant himself, the appellant was either a principal of or at the
    very least a party to the conspiracy. The trial judge also held that Berinis
    and Barras attempts to pursue the contract through further bribes using
    Govindia, following their falling out with the appellant, was admissible
    against the appellant as further evidence of the existence of an agreement to
    offer bribes.

[20]

The trial judge further held that the offence of agreeing to give or
    offer a benefit to a foreign public official in s. 3 of the Act includes an
    agreement among two or more people to offer a bribe to a foreign public official,
    and does not require the Crown to prove an agreement with or payment to a
    particular foreign official. To do so would make the legislation difficult or
    impossible to enforce, possibly undermining international comity obligations.

[21]

In deciding that Canada has territorial jurisdiction over the offence,
    the trial judge applied the test from
R. v. Libman
, [1985] 2 S.C.R.
    178: whether there is a real and substantial link between the offence and
    Canada. He rejected the argument that the substantial link test is limited to
    the essential elements of the offence. He held that the connections could
    include both the illegitimate and the legitimate elements of the impugned
    transaction that was the subject of the bribe or bribery attempt. Those
    connections included: the appellant was a Canadian businessman who approached a
    Canadian company in Ottawa, Cryptometrics Canada, and acted as its employee or
    agent in his efforts to secure the Air India contract; the benefit to be
    obtained was for the contracting Canadian company, with a great deal of the work
    to be done by its employees in Ottawa; nearly all of the real evidence 
    documents and emails  was seized in Canada, and all the witnesses who
    testified were from Canada.

Issues

[22]

This appeal raises four issues:

(1) Did the trial judge err by misapplying the
Libman
test and finding a substantial link between the offence and Canada?

(2) Did the trial judge err by misinterpreting the word
    agrees in s. 3 of the Act?

3) Did the trial judge err by misapplying the
Carter
test for the admission of the evidence of co-conspirators?

4) Did the trial judge err by misapprehending some of the
    evidence?

Analysis

1)

Territorial
    Jurisdiction

[23]

This offence was committed prior to the enactment of Bill S-14, which
    includes a new provision, s. 5, to establish territorial jurisdiction based on
    Canadian nationality or permanent residency of a person who has committed an
    offence under the Act. Section 5(1) provides:

5
(1)
Every person
    who commits an act or omission outside Canada that, if committed in Canada,
    would constitute an offence under section 3 or 4  or a conspiracy to commit,
    an attempt to commit, being an accessory after the fact in relation to, or any
    counselling in relation to, an offence under that section  is deemed to have
    committed that act or omission in Canada if the person is

(a)
a
    Canadian citizen;

(b)
a
    permanent resident as defined in subsection 2(1) of the

Immigration and Refugee Protection Act

who, after the commission of the act
    or omission, is present in Canada; or

(c)
a public body,
    corporation, society, company, firm or partnership that is incorporated, formed
    or otherwise organized under the laws of Canada or a province.

[24]

The trial judge observed that this new basis for jurisdiction was not
    retroactive and did not apply to the present case. He referred instead to the
    test for territorial jurisdiction stated by the Supreme Court in
Libman
as described by La Forest J., writing for the court, at p. 212-13:

[A]ll that is necessary to make an offence subject to the
    jurisdiction of our courts is that a significant portion of the activities
    constituting that offence took place in Canada. As it is put by modern
    academics, it is sufficient that there be a real and substantial link between
    an offence and this country, a test well-known in public and private
    international law.

[]

Just what may constitute a real and substantial link in a
    particular case, I need not explore. There were ample links here. The outer
    limits of the test may, however, well be coterminous with the requirements of
    international comity. [Citations omitted.]

[25]

La Forest J. reviewed the jurisprudential history and rationale for the
    test. It arose from the concept, then codified in s. 5(2) (and now in s. 6(2))
    of the
Criminal Code
, that Canada will not convict a person for an
    offence committed outside Canada. Nor does it accord with international comity
    for Canada to assert jurisdiction over crimes committed elsewhere. However, as
    La Forest J. explained at p. 209 of
Libman
:

[Canada] has a legitimate interest in prosecuting persons for
    activities that take place abroad but have an unlawful consequence here. The
    protection of the public in this country is widely acknowledged to be a
    legitimate purpose of criminal law, and one moreover that another nation could
    not easily say offended the dictates of comity.

[26]

A concept that was specifically rejected by the court in
Libman

was that the test required that the gist of the offence or the completion
    of the offence must have occurred in Canada. Rather than confine the analysis
    to what acts were strictly part of the offence, La Forest J. looked instead to
    acts that are an integral part of the scheme, stating, at p. 211: we must,
    in my view, take into account all relevant facts that take place in Canada that
    may legitimately give this country an interest in prosecuting the offence. He
    noted, at p. 209, that historically, Canadian courts frequently took
    jurisdiction over transnational offences that occurred partly in Canada where
    they felt this country had a legitimate interest in doing so.

[27]

On this appeal, the appellant asks this court to resurrect the concept
    that the
Libman
test requires the court to determine whether the
    essential elements of the offence took place in Canada. He submits that the
    trial judge erred by failing to limit his territorial analysis to the essential
    elements of the offence. He further submits that the trial judge erred by
    applying the new nationality principle, codified in s. 5(1) of the amended Act,
    to his analysis.

[28]

I would reject both of these submissions.

[29]

The trial judge properly stated and applied the
Libman
test. He
    specifically rejected the appellants position that because it was Barra and
    Berini, based in New York, who controlled the finances of Cryptometrics and who
    made the decision to pay the bribes, and because virtually all dealings
    occurred in India including the corruption, that therefore Canada did not have
    the requisite territorial connection to the offence.

[30]

He found, correctly, that the substantial link test is not limited to
    the essential elements of the offence, and that the bribery could not be hived
    off from the legitimate aspects of the transaction for the purpose of the
    territorial connection analysis.

[31]

One of the factors the trial judge noted was that the appellant was a
    Canadian businessman who approached a Canadian company with a business proposal
    that ultimately involved a bribery scheme, then acted as agent or employee of
    that company in his negotiations with Air India officials. However, he did not apply
    s. 5 by using the fact that the appellant is Canadian to deem that the
    appellant committed the offence in Canada. Rather, he included it as one of the
    factors that linked the offence to Canada.

[32]

The other facts were, as noted above, that because a Canadian company
    was the proposed contracting party, the unfair advantage and fruits of the
    contract obtained through bribery would benefit that company. A great deal of
    the contract work was to be done in Canada. In addition, nearly all of the
    documents and emails that evidenced the transaction were seized in Canada, and
    all the witnesses were from Canada. I see no error in the trial judges
    approach or his analysis.

[33]

The appellant also submits that the trial judges reasons on the issue
    of territorial jurisdiction were inadequate to explain why other jurisdictional
    facts were not taken into consideration.  There is no merit in this
    submission. The trial judge stated the
Libman
test correctly and
    explained why he found the aspects of the transaction that linked the offence
    to Canada constituted a real and substantial link between the offence and this
    country.

2)

Interpretation
    of s. 3 of the Act

[34]

Section 3(1) of the Act provides:

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 officials 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.

[35]

The appellant submits, as he did at trial, that giving the word agree
    its ordinary meaning, the section requires proof of an agreement between the
    accused and the foreign public official, and does not include an agreement
    between one or more other persons to offer a bribe to a foreign public
    official. The appellant also points to a subsequent amendment to the Act to
    assist in that interpretation. The new s. 6 of the Act provides:

6.
An information may be laid under section 504 of
    the

Criminal
    Code

in respect of an
    offence under this Act  or a conspiracy to commit, an attempt to commit, being
    an accessory after the fact in relation to, or any counselling in relation to,
    an offence under this Act  only by an officer of the Royal Canadian Mounted
    Police or any person designated as a peace officer under the

Royal
    Canadian Mounted Police Act
.

[36]

The appellant argues that the effect of this new provision is to add a
    conspiracy offence to the Act; therefore, he says, there was no conspiracy
    offence before this amendment.

[37]

Finally, the appellant is critical of the trial judges use of the
Convention
    on Combating Bribery of Foreign Public Officials

(the 
Convention
),
    to which Canada is a signatory, as a guide to the interpretation of the Act.

[38]

I would reject each of these submissions.

[39]

The Supreme Court of Canada recently commented on the significance of
    corruption in international business practices in
World Bank Group v.
    Wallace
, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 1:

Corruption is a significant obstacle to
    international development. It undermines confidence in public institutions,
    diverts funds from those who are in great need of financial support, and
    violates business integrity. Corruption often transcends borders. In order to
    tackle this global problem, worldwide cooperation is needed.

[40]

The
Convention
provides the legislative and policy background
    to the Act, which Canada enacted in 1998 (and which came into force in 1999) in
    response to its enforcement obligations as a member of the Organisation for Economic
    Co-operation and Development (OECD) and as a signatory to the
Convention
.
    As the trial judge stated at para. 41: [t]he convention seeks to promote a
    level playing field for the pursuit of international business among member
    states.

[41]

The trial judge was clearly entitled to look to the
Convention
and the anti- corruption policy it represents as part of the context for the
    interpretation of the Act.

[42]

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. Other principles of
    interpretation  such as the strict construction of penal statutes  only
    receive application where the provisions meaning is ambiguous:
Bell
    ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 28:
R. v. Mac
, 2002 SCC 24, [2002] 1 S.C.R. 856, at para. 4.

[43]

In s. 3, the offence is committed when a person 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. As the appellant submits, the offence is clearly
    committed when a person agrees with a foreign public official to give that
    official a benefit. But equally clearly, the offence is not limited to that
    scenario. It includes both a direct and an indirect agreement to give or to
    offer an advantage. There is no limiting language on who must agree,
    prescribing the parties to the agreement. It does not say that the agreement
    must be with the foreign official, only that the loan, reward, advantage or
    benefit that is the subject of the agreement must be a loan, reward, advantage
    or benefit
to
(or for the benefit of) a public official. On the language
    alone, there is no basis to read in a limitation on who must be parties to an
    agreement.

[44]

Further, from a policy perspective, I agree with the trial judge that to
    read in such a limitation would constrain the ability of the Crown to enforce
    the policy of the Act in accordance with Canadas obligations under the
Convention
.
    Article 1 of the
Convention

includes conspiracies to bribe as
    well as actual bribes of foreign officials. It provides in relevant part:

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.

Each Party shall take any measures necessary to establish that
    complicity in, including incitement, aiding and abetting, or authorisation of
    an act of bribery of a foreign public official shall be a criminal offence.
    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.

[45]

I also accept the submission of the Crown that the new s. 6 does not
    affect the interpretation of s. 3, and in particular, it does not add an
    offence of conspiracy. The new section addresses the exclusive ability of the
    RCMP to lay charges under the Act. It is not a charging section. Nor does the
    fact that it refers specifically to a conspiracy to commit an offence under the
    Act undermine the meaning of agrees in s. 3. That reference is part of a list
    of ancillary offences that are included for clarity in establishing the
    exclusive jurisdiction of the RCMP to lay any charges under the Act. The two
    charging sections are s. 3 and s. 4.
[3]
Unlike s. 3, s. 4 does not specifically include an agreement to commit the
    offence as part of the offence itself. Therefore, to the extent that Parliament
    wished to establish exclusive charging jurisdiction for all offences under the
    Act, the reference to conspiracy to commit would apply to such a charge under s.
    4 specifically.

3)

Co-conspirators
    exception to the hearsay rule

[46]

The appellant makes two submissions under this heading. He does not
    dispute the finding of a conspiracy among Barra, Berini and himself. He
    disputes the trial judges finding that the witness Bell was an unindicted
    co-conspirator. In oral argument, counsel explained that his position is that
    the trial judge erred in this regard because Bell testified that after he
    understood what was being proposed in one of the meetings, he absented himself
    from the meeting and from the discussions. However, the evidence is clear that
    Bell continued to assist the company to carry out the bribery scheme by, for
    example, preparing profit projections based on the chart that showed the
    amounts to be paid to the Air India officials as part of the bid for the
    contract. I see no error in the trial judges acceptance that Bell was an unindicted
    co-conspirator who could give in evidence against the appellant the statements
    of other co-conspirators. Of course, his evidence as a witness recounting
    events from his own knowledge was not hearsay and was admissible as direct
    evidence.

[47]

The appellant also objects that the trial judge did not identify which
    individual hearsay statements from which co-conspirator were being admitted and
    used against the appellant. There was no need for the trial judge to do so as
    all were co-conspirators. Nor does the appellant identify for the court any
    hearsay statement that he says should not have been admitted.

[48]

Finally, the appellant says that the trial judge erred by considering as
    evidence against the appellant, the participation of Govindia in the ongoing
    scheme with Barra and Berini after they had fallen out with the appellant. Specifically,
    the trial judge used the evidence of Barra and Berinis attempts to pursue the
    contract with Air India by paying bribes through Govindia as further evidence
    of the existence of the agreement to offer bribes that earlier involved the
    appellant.

[49]

With respect to the trial judge, it is not clear what this evidence
    added in respect of the existence of the agreement. There was ample evidence of
    the agreement and of the appellants role in it from the evidence of Bell, the
    documents, and the statements of the appellant as Buddy to the US
    authorities, and his statements to the RCMP. The Govindia evidence was
    redundant at best and any reliance on it by the trial judge was of no
    consequence in respect of the overall analysis and conclusion of the
    appellants guilt reached by the trial judge.

4)

Misapprehension
    of the evidence

[50]

The appellant identifies six alleged misapprehensions of evidence by the
    trial judge. They are listed in his factum as follows:

The evidence at trial does not support the conclusion that
    Robert Bell was an unindicted co-conspirator nor that he was intimately
    involved in virtually the entire course of events;

The learned trial judge gave undue weight to evidence of
    potentially unethical business practices of the appellant which he improperly
    used as a basis to conclude that the appellant was guilty as charged;

The learned trial judge in determining that a transfer of
    $200,000 USD from Cryptometrics USA to the appellant was for the purpose of a
    bribe, without considering the evidence led regarding salaries or operating
    expenses for Cryptometrics India or its employees;

The learned trial judge erred in that he found as a fact that
    PP referred to in an email was Praful Patel, the Minister of Indian Civil
    Aviation without evidence to support the conclusion;

The learned trial judge erred in that there was insufficient
    evidence before the court to establish who, if any were to be recipients of any
    bribes or payments;

The learned trial judge failed to consider the lack of evidence
    regarding the ability of any alleged recipient of a bribe to use his or her
    position to influence any act or decision of the foreign state or public
    international organization for which the official performs duties or functions.

[51]

These allegations amount to a request for this court to reweigh the
    evidence and draw different conclusions. First, that is not the role of this
    court. Rather, a court on appeal defers to the findings of fact made and
    inferences drawn from the evidence by the trial judge. For example, the
    appellant challenges the trial judges finding that the US$200,000 transferred
    to him by Cryptometrics US was for the payment of a bribe, when it could have
    been for his salary or other expenses. In its factum, the respondent details
    the evidentiary basis for distinguishing such payments from the $200,000 transfer.
    In any event, the appellant confirmed that the $200,000 was for a bribe in his
    2008 email to the US Department of Justice. The trial judge was entitled to
    make this finding and made no error in doing so.

[52]

Second, some of the alleged misapprehensions of evidence are complaints that
    the trial judge erred in law. For example, the appellant raises as an issue a
    lack of evidence that the targeted foreign public officials had the ability to
    influence decision-making. There is no merit in this submission. The evidence
    was clear that the appellant and the co-conspirators believed that Praful Patel
    and Captain Mascarenhas, officials with Air India, had that ability. The
    offence under s. 3 of the Act only requires proof of the agreement to bribe a
    foreign public official  not that the official has any particular power or
    authority.

[53]

I would not give effect to this ground of appeal.

Conclusion

[54]

I would dismiss the appeal.

Released: K.F. July 6, 2017

K. Feldman
    J.A.

I agree. G. Pardu J.A.

I agree. M.L.
    Benotto J.A.





[1]

There is no suggestion that bribery was discussed at this
    meeting. It was only at a later meeting in May 2007, discussed below, that the
    appellant told the Commissioner that they had paid bribes in their attempts to obtain
    the contract. The Commissioner responded by expressing shock and telling them
    they could be prosecuted or sued.



[2]

In
R. v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, the
    Supreme Court held that the traditional co-conspirators exception to the hearsay
    rule is supported by indicia of necessity and reliability, as required by the
    principled approach. For the most recent discussion, see
R. v. Bradshaw
,
    2017 SCC 35.



[3]
Section 4 provides the following offence under the
    Act:

4

(1)
Every person commits an offence who,
    for the purpose of bribing a foreign public official in order to obtain or
    retain an advantage in the course of business or for the purpose of hiding that
    bribery,

(a)
establishes
    or maintains accounts which do not appear in any of the books and records that
    they are required to keep in accordance with applicable accounting and auditing
    standards;

(b)
makes
    transactions that are not recorded in those books and records or that are
    inadequately identified in them;

(c)
records
    non-existent expenditures in those books and records;

(d)
enters
    liabilities with incorrect identification of their object in those books and
    records;

(e)
knowingly
    uses false documents; or

(f)
intentionally
    destroys accounting books and records earlier than permitted by law.


