Foreign Anti-Corruption: The Ontario Superior Court Finds it Lacks Jurisdiction Over the Prosecution of a Bangladeshi Citizen
On April 28, Nordheimer J. stayed the prosecution of Abul Hasan Chowdbury who was charged with a single offence contrary to s. 3(1)(b) of the Corruption of Foreign Officials Act (COFOA).
It is alleged that Chowdhury along with four others arranged bribes for a number of Bangladeshi government officials for the purpose of assisting SNC Lavalin secure a large construction project in Bangladesh – the construction of the PADMA multipurpose bridge.
All of Chowdbury’s alleged involvement in the offence had occurred outside of Canada. Indeed there was no evidence that he had ever been in Canada. Through counsel he agreed that the Court had jurisdiction over the alleged offence, but he argued that the court had no jurisdiction over his person and therefore the Crown should be prohibited from proceeding in Canada with the charge. The Court agreed, but on the basis that the charge should be stayed.
Usually, the jurisdiction of Canadian courts over criminal offences is based on the notion of territoriality. The COFOA expands the court’s jurisdiction over foreign bribery offences to include all Canadian citizens, permanent residents and organizations, regardless of where the offence occurs. The Crown argued that because Canada had properly assumed jurisdiction over the offence, the CFPOA by necessary implication had extended Canada’s jurisdiction over foreign nationals whose conduct occurred outside of Canada in relation to the offence. Nordheimer J. disagreed finding that the Crown’s position:
….conflates the question of jurisdiction over the offence with the question of jurisdiction over the person. The existing authorities make it clear that these are two separate and distinct questions. Canada can achieve an affirmative answer to the first question but that does not lead inexorably to an affirmative answer to the second question. The mere fact that the applicant is a party to the offence is not sufficient, in my view, to give Canada jurisdiction over him unless and until the applicant either physically attends in Canada or Bangladesh offers to surrender him to Canada.
The last sentence serves to explain why the charge was stayed as opposed to terminated through one or more extraordinary remedies.
One would expect a Crown appeal of this decision. A copy of the decision is here.