Criminal Law 

Nazir Karigar, a former agent of an Ottawa high-tech company  was sentenced on May 23, 2014 to a penitentiary term of three years for conspiring to bribe several Indian government officials in the first Corruption of Foreign Public Officials Act (the “CFPOA” or the “Act”) case to go to trial. The conspiracy to bribe had as its purpose the winning of a tender for a multi-million dollar contract to sell facial recognition software to Air India, a state enterprise. Facial recognition software may play an important role in preventing the boarding of planes by unauthorized persons.

Sophisticated bribery schemes result in jail sentences

Superior Court Justice Hackland ruled that Karigar “had a leading role in a conspiracy to bribe Air India officials in what was undoubtedly a sophisticated scheme to win a tender for a Canadian based company.” The Court issues the following warning: “Any person who proposes to enter into a sophisticated scheme to bribe foreign public officials to promote the commercial or other interests of a Canadian business abroad must appreciate that they will face a significant sentence of incarceration in a federal penitentiary”.

Competing theories of corporate criminal liability range along a spectrum.  At one end is vicarious criminal liability for the acts of employees or agents.  At the opposite end of the spectrum is the "directing mind" doctrine which requires the prosecution to prove that the Board of Directors set policy that authorized the criminal conduct. The Canadian corporate criminal model is. like many things that are Canadian, in the middle of the spectrum, based on the concept of a "senior officer". 

Two recent cases demonstrate how the Canadian model works in practice.  Global Fuels (R. c. Pétroles Global Inc.2013 QCCS 4262  leave to appeal to the Court of Appeal granted (2013 QCCA 1604))  was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. The Ontario Court of Appeal in Metron Construction (2013 ONCA 541) has affirmed that the actions of an independent agent who manages an important aspect of a corporations' activities and qualifies as a senior officer may result in a conviction of that corporation for criminal negligence causing death where the agent demonstrates a marked and substantial departure from the standard that could be expected of a reasonably prudent person.