Quid pro quo, clarified: ONCA revisits the first bribery acquittal under the CFPOA

In September 2025, the Court of Appeal for Ontario upheld the acquittal of Damodar Arapakota,¹ marking the first appellate interpretation of section 3(1)(a) of the Corruption of Foreign Public Officials Act (CFPOA). Writing for the majority, Gomery J.A. provided significant guidance on the meaning of “as consideration for” and “advantage in the course of business,” two core elements of the CFPOA foreign bribery offence.

Background

Mr. Arapakota was the founder and former CEO of Imex Systems Inc., a Canadian software development company. The RCMP charged Mr. Arapakota with bribery of a foreign public official in contravention of section 3(1)(a) of the CFPOA. The Crown alleged Mr. Arapakota arranged and financed a $40,000 family vacation for Dr. Kereteletswe, a Botswanan government official, in exchange for letters from the Government of Botswana confirming its intention to award a contract to Imex. 

Trial court decision

The Ontario Superior Court acquitted Mr. Arapakota, the first-ever acquittal in a case prosecuted under the CFPOA. Our 2023 update provides more background on the trial decision.

The trial judge found that Mr. Arapakota had conferred a material benefit on a foreign public official by planning and paying upfront for various expenses for a trip to Orlando for Dr. Kereteletswe and his family. However, the Crown failed to prove the benefit was provided as quid pro quo for the letters from the Government of Botswana. The trial judge further found that the letters did not amount to a material economic advantage for Mr. Arapakota’s business interests, as required under section 3(1)(a) of the CFPOA. 

The Court of Appeal’s decision 

The Crown appealed the acquittal, arguing that the trial judge misinterpreted the statutory language in section 3(1)(a) and failed to assess the evidence as a whole. 

Writing for the majority, Gomery J.A. affirmed that, to secure a conviction under section 3(1)(a) of the CFPOA, the Crown must prove beyond a reasonable doubt that the accused:

• Directly or indirectly, gave, offered, or agreed to give or offer a loan, reward, benefit, or an advantage.
• To a public foreign official, or to any person for the benefit of the public foreign official.
• In order to obtain or retain an “advantage in the course of business”.
• “As consideration for” an act or omission by the official in connection with the performance of the official’s duties or functions.

“As consideration for”: Specificity not required in the quid pro quo analysis

Drawing from case law on the Criminal Code domestic anti-bribery provisions that contain similar language,² the majority interpreted the phrase “as consideration for” to mean the accused must have received, or at least contemplated, a quid pro quo. The benefit must have been offered with the expectation that the foreign public official would act or refrain from acting in connection with the official’s duties or functions. The majority noted the language of section 3(1)(a) departs from section 3(1)(b), which does not require the Crown to prove consideration and therefore captures an “arguably broader scope of conduct.”

The majority held that the trial judge erred in requiring proof of a link between the benefit offered or given to a foreign public official and a specific act or omission by that person. The majority clarified that the contemplated act or omission does not need to be specific, and the Crown is not required to establish that the accused foresaw the precise act or omission they would seek or receive as a result of the bribe. It is sufficient for the Crown to prove the person offering or making the bribe received or at least contemplated a quid pro quo in the form of an act or omission by the official in his or her capacity as an official. 

The majority held that the trial judge’s error in interpreting “as consideration for” did not materially affect the outcome; the trial judge did not err in her analysis of the evidence nor in her interpretation of the term “advantage in the course of business,” both of which would have led to an acquittal.

“Advantage in the course of business”: Material or tangible economic advantage

The majority upheld the trial judge’s interpretation of “advantage in the course of business.” To establish liability, the Crown must prove the accused, in offering or making the bribe, intended to receive, or did receive, an advantage that is material to the accused’s business interests. An “advantage in the course of business” does not mean any advantage at all; it must be a non-trivial and tangible benefit. The majority deferred to the trial judge’s finding that there was a lack of evidence the letters amounted to a meaningful benefit or an advantage to Mr. Arapakota’s business interests.

However, the majority noted there does not need to be proof that the accused contemplated a specific act or omission by a public official at the time the bribe was offered or given.

Key takeaways

The Court of Appeal’s decision in Arapakota provides meaningful clarity regarding the threshold for liability under section 3(1)(a) of the CFPOA. This clarification helps to define the boundaries of liability in bribery cases where, as the majority noted, liability is almost always decided based on inferences drawn from circumstantial evidence. 

The decision also underlines the importance of examining bribery allegations in their full context. Internal investigations will continue to be an important mechanism for companies to manage risk and ensure compliance with anti-corruption laws.

The authors would like to thank Manreet Brar, articling student, for her contribution to preparing this legal update.