Fasken Secures First-Ever Acquittal in Landmark Bribery and Corruption Case

Ottawa (Canada) – The Ontario Superior Court of Justice acquitted Damodar Arapakota, founder and former CEO of Imex Systems Inc. (Imex), of a charge of bribery of a foreign public official under the Corruption of Foreign Public Officials Act (CFPOA).

Mr. Arapakota was alleged to have given an advantage or benefit, by arranging and making payments for a trip in the USA, to a Botswanan public official, as consideration for letters by the Government of Botswana confirming the sole-source contracting of Imex by the Government and the value of that contract, which the Crown alleged was an advantage in the course of business for Mr. Arapakota as it provided the ability to include projected revenue from the prospective contract as unbilled revenue in Imex’s financial statements.

The Court found that by planning and paying upfront for various expenses for a trip in the USA, though subsequently reimbursed, Mr. Arapakota conferred a benefit to the foreign public official. However, the evidence did not establish that the benefit was conferred as consideration for the foreign public official providing the letters by the Government of Botswana nor does it establish that Mr. Arapakota knew or intended for the trip in the USA to be consideration for the letters. Also, even though the letters may have put Mr. Arapakota in a better position, vis-à-vis the Board of Imex by giving the Board and auditors added comfort that a formal contract, of a certain value, would be forthcoming, such “advantage” does not rise to the level of a material or tangible economic advantage under section 3(1)(a) of the CFPOA.

This case is significant for several reasons. First, it is the first time that a defendant charged under the CFPOA was successfully defended and acquitted by the Court. Other CFPOA cases, of which there are very few, have resulted in either a conviction or a guilty plea.

Second, this decision sets a precedent on the interpretation and application of section 3(1)(a) of the CFPOA. Most significantly, the Court held that the since the offence includes that the benefit to the official be “as consideration for” a business advantage, it was necessary for the Crown to prove a quid pro quo (“something for something”). The Court found parallels with the nearly identical language in section 121(1)(a) of the Criminal Code (government influence peddling) and applied such case law in its decision.

The Court’s interpretation and application of section 3(1)(a) of the CFPOA and the contrast it made to section 3(1)(b) of the CFPOA provides guidance for Canadian companies and executives doing business overseas, especially in higher-risk areas globally, and highlights the importance of a clear understanding of the CFPOA.

Finally, this case was highlighted by Canada in its annual report to Parliament[1] to showcase its fight against foreign bribery, its implementation of the Organisation for Economic Co-Operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and its enforcement of the CFPOA, as one of the only two ongoing matters relating to the CFPOA. Canada has been ramping up its investigation, enforcement and prosecution efforts relating to the CFPOA, amidst pressure from the OECD, member countries and NGOs to urgently strengthen its commitment to enforcement and boost its prosecution efforts. This case informs Canadian businesses and executives to not only be cautious when conducting business overseas and implement a strong internal anti-bribery and corruption compliance program, but also be wary that Canada may bring a charge under the CFPOA without conducting a fulsome investigation first.

A charge under the CFPOA has severe consequences on a man’s reputation, hampers his ability to conduct business and affects the performance of the company, as Mr. Arapakota learned. The acquittal serves as a vindication and a significant win, but it does not erase the past three years.

The Fasken team that represented Mr. Arapakota consisted of Patrick McCann and Nabila Abdul Malik. For more information or to arrange an interview with them, please contact pmccann@fasken.com and nabdulmalik@fasken.com.

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