Key Takeaways
- The Ontario Court of Appeal upheld the trial judge’s acquittal, narrowing the CFPOA bribery offence’s scope and emphasizing the need for material economic advantage.
- The majority decided that the Crown must prove a contemplated quid pro quo, although it need not show a specific act was anticipated in return for the bribe.
- The outcome of the Supreme Court’s upcoming decision will impact Canadian anti-corruption enforcement and interpretation of the CFPOA.
On April 16, 2026, the Supreme Court of Canada heard the appeal of R. v. Arapakota, a rare prosecution under the Corruption of Foreign Public Officials Act (CFPOA). The earlier decision of the Ontario Court of Appeal, released September 23, 2025, represented an appellate interpretation of section 3(1)(a) of the CFPOA and provides guidance in an area of law where there is relatively little jurisprudence.
Section 3(1)(a), known as the bribery offence, criminalizes directly or indirectly giving, offering or agreeing to give or offer a loan, reward, advantage or benefit to a foreign public official or to any person for the benefit of a foreign public official, “in order to obtain or retain an advantage in the course of business”, and “as consideration for” an act or omission by that official in connection with the performance of the official’s duties or functions.
The majority of the Court of Appeal, composed of Justices Gillese and Gomery, dismissed the Crown’s appeal and upheld the trial judge’s acquittal of Mr. Arapakota. The majority’s decision provided guidance on the evidentiary burden required under the CFPOA bribery offence. In particular, the Court clarified what “an advantage in the course of business” and “as consideration for” mean in regard to a prosecution under section 3(1)(a) of the CFPOA.
The decision appears to narrow the scope of the bribery offence, thereby making it more difficult to secure a conviction. Prosecutions under the CFPOA are rare as it is and, if affirmed on appeal, this decision will likely mean that will continue to be the case. The upcoming decision of the Supreme Court of Canada will have important implications for Canadian anti-corruption enforcement. As of the date of this blog, judgment by the Supreme Court of Canada remains reserved.
Facts and trial court decision
The Crown argued that Mr. Arapakota — founder and former CEO of software company Imex — paid approximately $40,000 for a trip from New York to Orlando for a Botswanan government official and his family. The Crown alleged that this payment was in consideration for the official providing letters confirming termination of a contract between the government and its e-services provider, and stating an intention to engage the accused’s company, Imex, to provide these services instead. These expenditures came to light after Mr. Arapakota departed from the company and requested that he be repaid funds that he said he loaned to Imex. The uncovering of these expenditures led Imex to conduct an internal investigation into Mr. Arapakota’s expenses. Imex’s new CEO then contacted the RCMP to report Imex’s concern about the expenditure on the U.S. trip, especially given that Imex had $3 million of debt. (Additional background and analysis of the trial court decision are found in our previous blog post.)
At trial, the Ontario Superior Court of Justice found that the Crown failed to establish the elements of the offence under section 3(1)(a) of the CFPOA beyond a reasonable doubt, because the Crown was unable to establish that the benefit of the U.S. trip was conferred “as consideration” for the letters provided and/or that the benefit was conferred in order for Mr. Arapakota to obtain or retain “an advantage in business.”
The appeal
On appeal, the Crown argued that the trial judge erred by interpreting section 3(1)(a) as requiring the Crown to prove that the bribing party contemplated a specific future act or omission by a foreign public official as a quid pro quo for a payment to that official.
The Crown also argued that it should not be required to prove that Mr. Arapakota received a material or tangible economic advantage in return for the alleged bribe.
The majority’s decision at the Ontario Court of Appeal
Evidence of a contemplated quid pro quo
The majority agreed with the Crown that the trial judge interpreted the scope of section 3(1)(a) too narrowly. It held that the Crown did not need to prove that the accused contemplated a specific act or omission by a public official at the time the bribe was offered or given. However, the majority found that the trial judge was correct in requiring the Crown to prove that, for the purpose of obtaining or retaining an advantage in business, an accused offered or gave a foreign public official a benefit contemplating that, in exchange, the public official would act or omit to act in connection with the performance of their official duties.
Given the evidence, the majority held that the trial judge’s overly narrow reading of the “as consideration for” element had no material bearing on the outcome of the trial.
The majority further clarified that unlike section 3(1)(a), which requires “consideration for” an act or omission by the official in question, section 3(1)(b) establishes an offence that does not require the Crown to prove that a payment was made “in consideration for” an act or omission. Section 3(1)(b) criminalizes directly or indirectly giving, offering or agreeing to give or offer a loan, reward, advantage or benefit to a foreign public official or to any person for the benefit of a foreign public official, “in order to obtain or retain an advantage in the course of business” and “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.”
Evidence of a material or tangible gain or a material economic advantage
The Court of Appeal affirmed the trial judge’s interpretation of “advantage” in section 3(1)(a) as requiring proof that the accused received a material or tangible gain, or a material economic advantage (or contemplated that they would receive such a gain or advantage) when offering, giving or agreeing to give a benefit to a foreign public official. The Court rejected the Crown’s argument that “an advantage in the course of business” means any advantage at all. Based on the evidence, the trial judge found that the letters provided no material economic advantage to Mr. Arapakota. The majority gave deference to this finding as well.
Implications
The trial decision and the majority decision of the Court of Appeal have the effect of narrowing the scope of conduct that will constitute bribery under section 3(1)(a) of the CFPOA. According to the majority’s decision, the Crown must prove a contemplated quid pro quo, although it does not have to be for a specific act or omission. Additionally, under the majority’s analysis, not just any advantage will lead to a conviction; the advantage the accused received must be a material or tangible gain or a material economic advantage (or the contemplation they would receive such a gain or advantage). It remains to be seen what impact this guidance will have on the enforcement of the CFPOA.
It is noteworthy that the quid pro quo requirement isspecific to section 3(1)(a). Section 3(1)(b) of the CFPOA establishes an offence that does not require the Crown to prove that a payment was made “in consideration for” an act or omission.
Determination of the appeal before the Supreme Court of Canada will have important implications for Canadian anti-corruption law going forward.
