Canadian appellate court ruling sheds light on foreign bribery offense: Key takeaways

For the first time, a Canadian appellate court has provided guidance on key elements of the foreign bribery offense in Section 3(1)(a) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (CFPOA).

That provision 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 official’s 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. [emphasis added]

In R. v. Arapakota, 2025 ONCA 660, the Crown appealed an acquittal after the trial judge found insufficient proof that a family trip funded for a Botswana official was given “as consideration for” official acts, or that the accused obtained a material “advantage in the course of business.” The Ontario Court of Appeal dismissed the appeal.

In so doing, the court affirmed two critical elements of Section 3(1)(a): The offense requires a contemplated quid pro quo and the advantage sought or obtained must be material to the accused’s business interests.

The facts and the charge

The accused, a Canadian technology executive pursuing e‑government work in Botswana, arranged and paid for hotel and other expenses for a senior Botswana official’s family trip to Orlando, Florida. Around that time, the official provided letters confirming the state’s intention to engage the executive’s company “subject to executing a mutually acceptable agreement.” The Crown charged the accused under Section 3(1)(a) for allegedly conferring a benefit “as consideration for” an official act or omission, “in order to obtain or retain an advantage in the course of business.”

At trial, the court found the trip was a material benefit to the official, but held the Crown failed to prove: (1) the benefit was provided “as consideration for” the letters and (2) the letters yielded a material “advantage in the course of business.” The court also read Section 3(1)(a) to require the accused to have contemplated a specific official act or omission as the quid pro quo. The accused was acquitted.

“As consideration for” contemplates quid pro quo

The court confirmed that “as consideration for” in Section 3(1)(a) imports a contemplated quid pro quo. Drawing on the parallel language in Criminal Code of Canada Section 121(1)(a) and Supreme Court of Canada jurisprudence, the court held that a “something for something” exchange is an essential element of these similarly worded domestic and international bribery offenses.

To secure a conviction, the Crown must prove that the benefit was offered or given with the expectation that the official would act or omit to act in connection with their official duties, thereby advancing the accused’s business interests. This aligns with the CFPOA’s structure, which separately captures influence peddling under Section 3(1)(b) without using “consideration” language.

However, the court held the trial judge erred in requiring proof that the accused contemplated a “specific” official act. A contemplated quid pro quo is sufficient, even if the precise act is not foreseen when the benefit is conferred. The court noted that requiring proof of a specific act would impose an unreasonable hurdle in anti-bribery cases, which are often based on circumstantial evidence.

“Advantage” must be material

The court affirmed that the “advantage in the course of business” must be material, excluding trivial or de minimis gains. Harmonizing the CFPOA with domestic bribery law, the court reasoned that the statute’s severe penalties imply that Parliament did not intend to criminalize the pursuit of immaterial advantages. Materiality is a contextual, fact‑driven inquiry.

On the facts, the trial judge was entitled to find that the letters conferred no material business advantage. Multiple witnesses – including finance, legal, and audit professionals – considered the letters unnecessary or of no practical value to financial reporting or fundraising. The letters were not used in the company’s financial statements and the anticipated contract never materialized.

Practical implications

The Arapakota decision is now the leading Canadian appellate authority on Section 3(1)(a). It provides clearer boundaries for prosecution and compliance:

• The Crown need not prove the accused contemplated a particular official act, but must prove a contemplated quid pro quo; the benefit was offered to prompt an act or omission in the performance of official duties.
  
  
• The “advantage in the course of business” must be material. Trivial gains will not suffice; courts will assess materiality contextually, including the nature and impact of the alleged advantage and the accused’s state of mind.
• The CFPOA’s bifurcated structure matters. Where evidence supports a theory of influence, rather than an exchange “as consideration for” an official act or omission, Section 3(1)(b) may be the more appropriate charge.

The decision underscores that providing benefits to foreign officials poses heightened risk, especially near key business milestones. Conversely, the absence of a “material business advantage” or a “contemplated quid pro quo” is fatal to a charge under Section 3(1)(a).

For more information, please contact the authors.