Does Canada's Corruption of Foreign Public Officials Act ("CFPOA") extend Canada's jurisdiction to a foreign national for the purpose of charging that person with an offence under the CFPOA? In Chowdhury v. H.M.Q. 2014 ONSC 2635, the Ontario Superior Court of Justice concluded that Canada does not have jurisdiction over a foreign national alleged to have breached the CFPOA. The decision is a noteworthy clarification of adjudicative jurisdiction under the CFPOA, particularly for multi-national companies and the individuals employed by them.
Salient Facts
The case involves the former Interior Minister and Minister of State of Bangladesh, Abul Hasan Chowdhury, who is alleged to have exerted influence over the selection committee for a bridge project in favour of SNC Lavalin, a Canadian company. Mr. Chowdhury is a Bangladeshi citizen and resident of Bangladesh. He is not, and never has been, a Canadian citizen nor has he ever been a resident of Canada. There is no evidence to suggest that Mr. Chowdhury has ever been to Canada. Mr. Chowdhury is not alleged to have committed any specific acts within Canada.
Furthermore, the Crown has yet to seek a warrant for the arrest of Mr. Chowdhury and Bangladesh and Canada do not have an extradition treaty. There is no suggestion that Canada has otherwise attempted to have Bangladesh surrender Mr. Chowdhury for prosecution in Canada.
Jurisdictional Analysis
Justice Nordheimer, on behalf of the Ontario Superior Court of Justice, provided a lengthy jurisdictional analysis that formed the basis of the Court's conclusion that Canada currently lacks jurisdiction over Mr. Chowdhury. The Court outlined the distinction between Canada extending its jurisdiction over an offence (because the offence has some extraterritorial aspects) and Canada extending its jurisdiction over a person who is outside of Canada's jurisdiction. Jurisdiction over the offence, in this context, is governed by the well-known "real and substantial link" set out in the Supreme Court of Canada's decision in R. v. Libman [1985] 2 S.C.R. 178, whereas jurisdiction over the person is governed by the legislative language used in the statute creating the offence.
There was no dispute in this case that Canada had jurisdiction over the CFPOA offence. Many of the acts constituting the alleged the offence took place in Canada, the investigation was conducted in Canada and the bulk of the evidence was gathered in Canada. Further, the Court noted that under the CFPOA, Canada has a legitimate interest in assuming jurisdiction for the purpose of prosecuting persons involved in an international bribery scheme that had its genesis in Canada.
The Crown submitted that once Canada has jurisdiction over the offence, it has jurisdiction over all of the parties to that offence. Justice Nordheimer disagreed, noting that the Crown's position conflates jurisdiction over the offence with jurisdiction over the person.
The question Justice Nordheimer, therefore, considered was whether the CFPOA either expressly or by necessary implication extends Canada's jurisdiction over foreign nationals whose conduct occurred outside of Canada in relation to an offence over which Canada has properly assumed jurisdiction. In answering this question in the negative, Justice Nordheimer found that there is nothing in the charging provision in the CFPOA, section 3, that expressly makes foreign nationals subject to it, despite the fact that section 3 prohibits "every person" from giving or offering, directly or indirectly, a benefit of any kind to a foreign public official with the ultimate purpose of obtaining or retaining a business advantage. Justice Nordheimer found that the use of the phrase "every person" does not capture foreign nationals in the circumstances of this case.
Key "Take-Aways"
Justice Nordheimer's analysis and decision is a welcome reminder that where adjudicative jurisdiction is asserted over an alleged offence, a court must have jurisdiction over both the offence and the person accused of the offence. Accordingly, Canadian courts do not have automatic jurisdiction over a foreign national just because Canada has jurisdiction over the CFPOA offence. In other words, the mere fact Mr. Chowdhury was a party to an offence under the CFPOA was not sufficient to give Canada jurisdiction over him unless and until he physically attends in Canada or Bangladesh offers to surrender him to Canada. Of note, Justice Nordheimer did not rule out Canada having jurisdiction in the future in the event Canada was able to "lay hands" on Mr. Chowdhury.
The decision does provide some comfort for foreign nationals that adjudicative jurisdiction may not be assumed just because Canada has jurisdiction over a CFPOA offence. However, we anticipate that this issue is far from settled. It is anticipated that the Government of Canada will appeal the decision, or perhaps seek to amend the CFPOA again, to try to reflect the CFPOA's intended broad jurisdictional scope. Whether the Government of Canada will be successful remains to be seen.
