Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of s. 3(1)(a) of the Corruption of Foreign Public Officials Act (CFPOA) was central, specifically the requirement for a quid pro quo.

• The necessity for the Crown to prove that a material or tangible business advantage was received or expected in return for the alleged bribe.

• Whether the benefit conferred (the Orlando trip) was provided “as consideration for” an official act by the foreign public official.

• Evaluation of whether the evidence established a sufficient link between the benefit and any official act or omission.

• The trial judge’s approach to the evidence and whether it was considered as a whole or in a piecemeal fashion.

• The appellate court’s deference to the trial judge’s factual findings and legal interpretations under the CFPOA.

Background and facts of the case

In 2015, Damodar Arapakota was the CEO and CTO of Imex Systems Inc., a Canadian software company specializing in e-government solutions. Imex became involved in the “Botswana Project” after being subcontracted by Public Sector Transformation Group (PSTG), which had initially been awarded the contract by the government of Botswana. Dr. Omponye “Coach” Kereteletswe, a Botswana government official, was the coordinator of e-government services and oversaw the project. By mid-2015, the project stalled, PSTG’s contract was terminated, and Imex’s involvement ended.

Imex then lobbied to secure the remaining work for itself and sought to collect outstanding payments from PSTG. During this period, Arapakota arranged and paid for a family vacation in Orlando, Florida, for Dr. Kereteletswe and his family, allegedly because Dr. Kereteletswe lacked a credit card and for convenience. Around the same time, the Botswana government announced its intention to sole-source the next phase of the project to Imex. Arapakota subsequently requested and received letters from Dr. Kereteletswe confirming the government’s intention to engage Imex and specifying the contract value.

The Crown alleged that the Orlando trip constituted a bribe to secure these letters, which would provide Imex with a business advantage, including the ability to reflect projected revenue in its financial statements. However, evidence at trial indicated that the letters were primarily sought by Michael Frank, a financial consultant for Imex, and were not ultimately used to boost the company’s financial statements or investor updates. Despite the government’s announcement, Imex never secured the anticipated contract, and Arapakota eventually left the company.

Legal issues and trial decision

The trial judge identified the key elements the Crown needed to prove under s. 3(1)(a) of the CFPOA: that Arapakota intentionally conferred a benefit to a foreign public official as consideration for official acts, and that he did so to obtain or retain a business advantage. The judge found that while Arapakota did provide a material benefit (the Orlando trip), the Crown failed to establish that it was given as consideration for any official act or that Arapakota received a material business advantage as a result. The evidence showed the trip was arranged before any contract was announced, and the letters provided by Dr. Kereteletswe were not necessary or valuable to Imex’s business interests. The trial judge acquitted Arapakota.

Appeal and outcome

On appeal, the Crown argued that the trial judge interpreted s. 3(1)(a) too narrowly and failed to consider the evidence as a whole. The Court of Appeal agreed that the trial judge misinterpreted one element by requiring proof of a specific act or omission contemplated at the time of the benefit, but found this error did not affect the outcome. The appellate court held that the trial judge correctly required proof of a quid pro quo and a material business advantage, and that her factual findings were supported by the evidence. The appeal was dismissed, and the acquittal was upheld. No monetary award or costs were ordered in favor of the successful party, as this was a criminal prosecution.