Court of Appeal for Ontario

CITATION: R. v. Mathur, 2010 ONCA 311

DATE: 20100430

DOCKET: C48048

Weiler, Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rajkumar Mathur

Appellant

Clayton C. Ruby and Daniel C. Santoro, for the appellant

Craig Harper, for the respondent

Heard: February 2, 2010

On appeal from the conviction entered on November 7, 2007 and the sentence imposed on November 30, 2007 by Justice Frank N. Marrocco of the Superior Court of Justice, sitting without a jury.

Weiler and MacFarland JJ.A.:

[1] Following a trial by judge alone, the appellant was convicted of fraud on the government (s. 121(1)(c)) and breach of trust by a public officer (s. 122) contrary to the Criminal Code and sentenced to six months imprisonment, 12 months probation, plus 100 hours of community service. He appeals both his conviction and sentence.

[2] In relation to conviction, the appellant argues: (1) the trial judge misinterpreted s. 121(1)(c); (2) his trial was unfair because the trial judge refused to exclude certain banking documents relating to an offshore bank account obtained in contravention of Antiguan law; and (3) the trial judge misapprehended the evidence.

[3] In relation to sentence, the appellant submits that the trial judge erred in not imposing a conditional sentence.

FACTS

Background: Mr. Mathur, the IRAP and the role of ITAs.

[4] In January 1994, the appellant, Rajkumar Mathur – an engineer by training – started working as an Industrial Technology Adviser (“ITA”) with the Industrial Research Assistance Program (the “IRAP”) at the National Research Council (the “NRC”). The IRAP was designed to assist companies to develop technologies and processes by providing funding. ITAs worked on a “client” basis, being assigned to specific companies and working with them throughout the pre- and post-funding phases of the IRAP. The duties of an ITA included giving advice and assisting these companies with their funding proposal applications, as well as making recommendations on whether those applications should be approved. Significant weight was placed on these recommendations by the Regional Director, who ultimately determined if a project should receive IRAP funding. Any firm receiving NRC monies signed a contract, which included a clause stating no consideration had been given to the ITA.

[5] The IRAP funding applications were often very technical and complicated. It was not unusual for companies to retain private consultants to help them prepare applications and navigate the proposal process. Although the NRC forbids companies from hiring consultants on a contingency fee basis, such arrangements were common in the marketplace.

Mr. Mathur’s involvement with 778 and previous conflicts of interest.

[6] Immediately after starting work as an ITA, Mr. Mathur experienced difficulties with the NRC Conflict of Interest and Post-Employment Code (the “Code”). Through his numbered company, 778481 Ontario Inc. (“778”), Mr. Mathur sought funding totalling $110,000 for two projects under the IRAP. Mr. Mathur was the ITA for both projects. On January 31, 1994, the NRC informed Mr. Mathur that he was “in a conflict of interest position” that had to be resolved. On February 14, 1994, Mr. Mathur suggested a solution: 778 would withdraw its applications, he would sell his shares to an arm’s length company and until that sale occurred the shares would be transferred to his wife, Prithi Mathur. Although the Secretary-General of the NRC initially did not find the trust arrangement acceptable, he informed Mr. Mathur on September 28, 1994 that Mr. Mathur had indeed satisfied the conflict of interest requirements in the Code.

[7] As of September 8, 1994, Mr. Mathur was not an owner, director or officer or 778. Accordingly, all commissions, rewards, advantages or benefits of any kind paid to 778 from that point onward accrued directly to 778 and indirectly to Ms. Mathur – now President and owner of 778.

[8] A new Code came into effect in December 1996. In 2000, Mr. Mathur ran into difficulties with the (new) Code’s conflict of interest provisions. One of Mr. Mathur’s clients, Energy Ventures Inc. (“EVI”), needed to develop a new business plan in order to apply for NRC funding. Mr. Mathur provided them with a list of four private consultants capable of helping EVI in this regard, one of which was Mr. Mathur’s son, an employee of 778 at the time. EVI eventually retained Mr. Mathur’s son – who was knowledgeable in the preparation of aspects of the funding applications – and Mr. Mathur was in the room when the contract was signed. Mr. Mathur assured EVI’s President that his supervisor had approved of this arrangement.

[9] When the NRC actually learned what had taken place, there was an investigation and the Director General disciplined Mr. Mathur for his “serious violation” of the Code with a ten-day suspension without pay. Mr. Mathur was informed by the Director General that his actions: (i) betrayed public confidence in the integrity, objectivity and impartiality of the NRC; (ii) created a conflict between his private interests and his duties as a public servant; (iii) constituted preferential treatment in favour of his son; and (iv) resulted in a fee being paid to his son, which represented an economic benefit to Mr. Mathur (since his son lived with him in the same household).

The relationship between Mr. Mathur, 778, Stratton & Ogilvey and BCMC.

[10] After the 2000 incident, the Mathurs adopted a new approach. Mr. Mathur referred some of his IRAP clients to a management consulting firm called Stratton & Ogilvey (S&O), which would then sub-contract some of the work involved in preparing proposals to 778.[^1] Money received from the client was usually passed directly to 778. In some cases, S&O did absolutely no work on the proposals at all and the entirety of the fee was forwarded to 778. Mr. David Benjamin, a business consultant for S&O during the relevant period, testified that the firm did not inform clients that 778 was working on part/all of their proposals and that he had no idea whether Mr. Mathur worked on the applications or received any financial benefits personally from fees paid to 778. The decision to use S&O as a shield to hide the involvement of Ms. Mathur and her son in the preparation of proposals was a joint decision of Mr. Benjamin, Ms. Mathur and Mr. Mathur. As a result of this arrangement, 778 received in excess of $300,000 for work done on the applications.

[11] Based on advice and contacts offered by Mr. Benjamin, Mr. Mathur incorporated an offshore corporation in Nassau, Bahamas called the Business Consulting and Marketing Corporation (“BCMC”). During the relevant period, Mr. Mathur owned the BCMC and controlled its bank account, which was located in Antigua.

The alleged illegal transactions: S&O payment to 778 and PowerLoc payment to BCMC.

[12] One client that retained S&O for assistance with IRAP proposals was PowerLoc Technologies Inc. (“PowerLoc”). On September 1, 2000, PowerLoc’s $495,000 funding proposal was approved. Under the contingency-fee based consulting agreement in effect at the time, S&O was owed 3 per cent of this amount for assisting in the preparation of the application (which works out to $14,850 before GST). An invoice dated September 7, 2000 from S&O to PowerLoc sets out the amount owing as $15,000 plus 7 per cent GST for a total of $16,050. On December 10, 2000, PowerLoc forwarded a cheque for $16,050 to S&O. On December 30, 2000, S&O wrote 778 a cheque for $28,433.34 – the sum total of the $16,050 cheque plus two other cheques received by S&O for work done by 778 on another account.[^2]

[13] On February 2, 2001, S&O and PowerLoc entered into a different contingency-fee based consulting agreement whereby PowerLoc agreed to pay 5 per cent of gross funds received through IRAP to S&O. The consulting fee was assigned to BCMC. On November 19, 2001, PowerLoc’s $420,000 funding proposal was approved. That same day, Mr. Mathur went to PowerLoc’s offices and presented an invoice for $21,000, payable in two instalments within 60 days (the same terms and quantum as in the S&O 5 per cent contingency fee agreement). On January 7, 2002, BCMC received $7,000 USD via wire transfer from PowerLoc’s parent company, Paradigm, in partial payment for the invoiced amount. The second payment was never made.

ISSUES AND ANALYSIS

Did the trial judge err in finding that the $16,050 payment to 778 was prohibited under s. 121(1)(c)?

121. (1) Every one commits an offence who

(c) being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him. [Emphasis added].[^3]

[14] The trial judge found that the appellant breached s. 121(1)(c) on the basis of two discrete transactions:

First transaction – PowerLoc payment to BCMC:

• There was a payment made by PowerLoc to BCMC of $7,000 USD;
• This payment constituted a “commission, reward, advantage or benefit of any kind”, in the language of s. 121(1)(c);
• PowerLoc was having dealings with the government at the time of the payment;
• Mr. Mathur’s superiors did not consent to the payment; and
• The payment constituted an “actual” benefit to Mr. Mathur, who owned and controlled BCMC at the relevant time.

Second transaction – PowerLoc payment to S&O, which flowed through to 778:

• There was a payment made by PowerLoc to S&O of $16,050, which flowed through to 778;
• This payment constituted a “commission, reward, advantage or benefit of any kind”;
• PowerLoc was having dealings with the government at the time of the payment; and
• Mr. Mathur’s superiors did not consent to the payment; and
• Although Mr. Mathur did not benefit from the payment, the payment constituted an “actual” benefit to Mr. Mathur’s family. This was sufficient to come within the rubric of s. 121(1)(c).

[15] The trial judge further explained his last point. Notwithstanding the understanding urged by Mr. Mathur, he held the proper interpretation of s. 121(1)(c) is that the phrase “for his benefit” does not apply to the phrase “through a member of his family” (see italicized portion in section). He gave several reasons for prefering this construction to that advanced by Mr. Mathur:

• If the Crown were required to demonstrate a benefit to the accused when a benefit was received by his family, the words “through a member of his family” would be unnecessary;
• Section 121(1)(b) is effectively a parallel provision to s. 121(1)(c), targeting the “donors” of benefits instead of the “recipients”, and the structure of s. 121(1)(b) does not relate “for his benefit” to “any member of his family”;[^4]
• Sections 121(1)(a)(i) (offer of benefits for official influence) and 121(1)(f) (inducements to withdraw competing offers in government tendering processes) are clear that a benefit to a family member is sufficient for liability; and
• The purpose of s. 121(1)(c) – to ensure both the integrity of the public service and the appearance of integrity in the public service – is better served by an interpretation that considers it sufficient for establishing liability if one’s family member receives actual benefits.

[16] The trial judge held that the payment to 778 (and therefore to Ms. Mathur) satisfied the conduct element of the offence. Mr. Mathur’s awareness of the payments to 778 constituted the required state of mind – that is, the acceptance of the benefit.

[17] At the outset, we note that this ground of appeal does not impugn the Power Loc payment to BCMC.

[18] The appellant submits that the trial judge erred in his interpretation of s. 121(1)(c) and his finding of guilt in relation to the payment to 778. He submits that in order to be found guilty under the section, the government employee must personally benefit. In this case, the trial judge found that the appellant did not personally benefit from the payment to 778, yet he found him guilty. In so doing, it is argued that he erred.

[19] The resolution of this issue requires us to apply statutory principles of interpretation. The literal approach to statutory interpretation has been superceded by the approach adopted by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, at para. 21, namely, “…the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objective of the Act, and the intention of Parliament.” We agree that penal statutes are not to be given a strict construction but that every Act is to be given the interpretation that best ensures the attainment of its objects: R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 S.C.R. 398. With a bilingual statute, Parliamentary intention is still the governing principle. Applying these principles, we are of the opinion that the trial judge did not err in concluding that the appellant’s conduct infringed the section.

[20] When a person has dealings with the government, s. 121(1)(c) criminalizes the conduct of an employee of the government who accepts a “benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit” without the consent of his superior. The words “for his benefit” at the end of the phrase, modify the words, “through anyone” and do not modify the phrase “through a member of his family”. The appellant would have us read the phrase as, “through a member of his family for his benefit”. That reading does not accord with either the wording of the section or the purpose of the provisions, which is to ensure that the appearance of the government’s integrity is not undermined. The phrase, “by himself or through a member of his family or through any one for his benefit” explains the preceding words criminalizing acceptance of a benefit directly or indirectly. The words “through a member of his family” deem a benefit to a family member to be a benefit to the accused and are included for the sake of clarity.

[21] In support of his position, the appellant relied on the comments of L’Heureux-Dubé J. in R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, para. 66, which read:

...While conduct similar to that in the Dubas case might attract sanction under a government’s conflict of interest guidelines, it does not fall within the purpose or wording of s. 121(1)(c). It is true that the appearance of integrity may be harmed by such conduct, but it is not because the government employee personally benefits. This particular section is designed to prevent an employee from actually benefiting. Where this does not occur, the criminal sanction is not warranted.

[22] The comments of L’Heureux-Dubé J. in Hinchey, supra do not support the interpretation advanced by the appellant. L’Heureux-Dubé J. was distinguishing between actual and apparent benefits, and specified that the latter is an insufficient basis for criminal liability under s. 121(1)(c). Her comments do not support the proposition that a government employee must personally benefit from a gift provided to his family member, but rather that a benefit received (either personally or to a family member) must be an actual one.

[23] The trial judge found that the appellant took an active role in promoting the receipt of contracts from his clients by his wife’s company, in using Stratton and Ogilvy as a shield to hide the involvement of family members in preparing proposals for government grants and that he provided whatever assistance his wife needed on the proposals. The trial judge did not impose absolute liability on the appellant. He held that the appellant knowingly directed financial gain to his spouse and son.

[24] While the trial judge said that the appellant did not receive a benefit what he meant was that the Crown did not have to prove anything beyond the benefit to the family member. We agree. We would uphold the appellant’s conviction in relation to the payment to 778.

Did the trial judge err in failing to exclude the Antiguan banking documents?

[25] The facts in relation to this ground of appeal follow.

[26] On March 18, 2003, RCMP Toronto made a request of the force’s Kingston Liaison Office (the “KLO”), whose jurisdiction included Antigua, for information that could be legally disclosed with respect to BCMC’s offshore account. The KLO contacted the Antiguan government’s Office of National Drug and Money-Laundering Control Policy (the “ONDCP”), which provided the information. On August 14, 2003, the RCMP asked for additional information that could also be publicly disclosed and once again the ONDCP obliged.[^5]

[27] On May 21, 2004, Canada sent a Letter of Request to the Government of Antigua and Barbuda for certified copies of the documents it had obtained in previous correspondence with the ONDCP. These documents were provided to the RCMP. In making its request for “available information”, the RCMP did not suggest extraordinary action was necessary, nor did it encourage or request that Antiguan laws be broken in the execution of their request for the certified copies.

[28] On October 23, 2006, Mr. Mathur wrote the Crown requesting information relating to the exact steps taken in obtaining the BCMC documents, suspecting that illegal activities were involved. Mr. Mathur also requested certain documents, such as the notes of an Antiguan police officer working for the ONDCP, which required the Crown to bring an application under the Mutual Legal Assistance Treaty (the “MLAT”).[^6] The Crown advised Mr. Mathur that “neither the Crown nor the RCMP are in possession or control of anything further to disclose to you on this topic.” Mr. Mathur made demands in the same vein via a letter on December 7, 2006. The Crown responded in much the same manner, noting that Mr. Mathur had “thus far provided no basis” for his allegations that the documents were illegally obtained and concluding that “the Crown is not obliged to engage in a defence investigation of the internal dealings of [Antigua and Barbuda].”[^7]

[29] There is no question that at all material times, the appellant was the “owner” of BCMC as the sole shareholder and director. However, the BCMC banking documents requested by the RCMP proved to the trial judge that the appellant had signing authority on and therefore controlled BCMC’s bank account at the time of the transfer of funds from PowerLoc to BCMC.

[30] As it turns out, the banking documents were not seized in accordance with Antigua’s constitution, which requires a search warrant for such actions.

The Decision Below

[31] Prior to trial, Mr. Mathur moved for an order excluding these documents, arguing that their admission would render this trial unfair on the basis that (i) the Crown refrained from inquiring into the circumstances surrounding the obtaining of the documents; and (ii) the documents were obtained in a way that contravened the laws of Antigua.

[32] In relation to this ground of appeal, the trial judge held as follows:

It was not enough for the Crown to take the position that the information requested was not in its possession: the issue was whether it was under duty to make the inquiries sought by Mr. Mathur. This duty can only flow from the nature of the role of the Crown prosecutor in Canada, but it is not necessary to decide whether such an obligation to assist the defendant existed in this case. The essence of what occurred in Antigua is before the court, and where details are missing, inferences can be drawn; for example, the absence of details such as the Antiguan police officer’s notes supports the inference that the violation of Antiguan law was knowingly and deliberately done by domestic law enforcement officials. Ultimately, it is sufficient in this case for the court to determine whether the admission of the evidence would be unfair.

[33] In order to answer the question of whether the admission of the evidence would violate Mr. Mathur’s right to a fair trial guaranteed under ss. 7 and 11(d) of the Charter, the application judge considered a number of relevant factors. These included:

• The evidence is not a conscripted statement;
• The Antiguan authorities were not agents of the RCMP – they were authorities of a sovereign country carrying out a decision to cooperate with a Canadian request for assistance. The RCMP did not perpetrate, instigate or otherwise cause the illegal activity to occur, and their actions were neither unreasonable nor unfair;
• The BCMC banking documents were obtained without a warrant, contrary to Antiguan law (militating in favour of exclusion);
• The documents are not essential to the prosecutor’s case, but they are important;
• The documents were obtained from Mr. Mathur’s bank, not from his home or person, and as such the impact on his expectation of privacy is less egregious;
• The documents are reliable and existed independently of the illegal seizure; and
• The Crown’s inaction did not deprive the court of an essential understanding of what took place in Antigua.

[34] Ultimately, given the circumstances outlined above, the trial judge was not persuaded that the documents needed to be excluded in order to give Mr. Mathur a fair trial.

[35] The appellant submits that he would not have been convicted of fraud on the government or of breach of trust by a public officer in relation to the PowerLoc payment to BCMC but for the trial judge’s erroneous admission of the BCMC banking documents.

[32] There is no evidence in the record to suggest that the RCMP were in any way complicit in the unlawful activities of the Antiguan police. Indeed, the record is to the contrary. The correspondence from the RCMP to the authorities in Kingston, Jamaica (who directed the Antiguan police) make it clear that the RCMP sought out and requested only “publicly available” records in relation to the bank account information provided by PowerLoc.

[33] The appellant argues that had he been provided with the particulars of exactly how the Antiguan police obtained these records, those details may have supported and strengthened his argument that the records should be excluded. In this regard, the appellant relies on the words of Doherty J.A. of this court in R. v. Ahluwalia (2000), 2000 CanLII 17011 (ON CA), 138 O.A.C. 154, at para. 71, commenting on the Crown’s failure to inquire further when confronted with the perjury of its own witness:

For reasons not shared with this Court, the Crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter. It contented itself with inquiries of counsel involved in the case and some of the Canadian police officers. The Crown does not appear to have made any inquiries of Makdesion or the F.B.I. agents responsible for providing Makdesion’s criminal record to the Crown. As those involved in the Canadian component of the investigation disavowed any knowledge of Makdesion’s full criminal record, inquiries of Makdesion and the relevant F.B.I. agents would have been the next obvious step. Not only was the Crown apparently uninterested in finding out what light Makdesion or Agent Carter might shed on the troubling questions raised in the fresh evidence, it also refused to assist the defence in obtaining that information by way of cross-examination of Makdesion or Agent Carter.

[34] In our view, the appellant’s reliance on Ahluwalia is misplaced. The facts in that case are very different from the facts before this court. In that case, defence counsel learned after trial that one of the Crown’s key witnesses, whose evidence was crucial to the conviction of Ahluwalia, was false and that he had thereby committed perjury. The Crown refused to make any inquiries or efforts to get to the bottom of the matter.

[35] In this case there is no evidence whatsoever of any misconduct on the part of the RCMP. As to the unlawful conduct of the Antiguan police, the trial judge accepted that this evidence had been obtained unlawfully, that the conduct was deliberate and in violation of the Constitution of Antigua. Further in the agreed Statement of Fact filed in support of the appellant’s motion to exclude, the appellant agreed that for the purpose of the motion:

The Canadian authorities made no efforts to obtain a court order in the local jurisdiction, nor did they participate in the local investigation or seizure.

[36] The trial judge considered the fact that the records had been unlawfully obtained weighed in favour of exclusion, but that it was not the only factor. As was his duty, he weighed all the factors – those which favoured the admission of the records and those which favoured exclusion of the records. He concluded, on balance, that the evidence favoured the admission of the records and dismissed the appellant’s motion to exclude. His decision was a discretionary one – he weighed all of the relevant factors both for and against admission of the records and made his decision accordingly. We see no basis on which to interfere with his exercise of discretion.

[37] Further, the trial judge had before him the evidence of a PowerLoc representative who received the appellant’s request for payment to BCMC and who provided the detail of how the payment was to be made to that company’s bank account in Antigua.

[38] The appellant admitted ownership of BCMC. His evidence, however, in relation to the impugned transaction, was that his cousin S.D. Mathur at the particular time had signing authority on the bank account. His cousin, he said, had done some work for PowerLoc in promoting that company’s business interests in India. S.D. Mathur was said to be a citizen and resident of India and the $7,000 USD payment, which was the subject of one of the charges against the appellant, was in fact a payment to S.D. Mathur for work he had done for PowerLoc. The money, according to the appellant, was paid into the BCMC account to help S.D. Mathur out and enable him to avoid Indian currency laws, to which as a citizen/resident, he would otherwise be subject had the money been paid to S.D. Mathur directly.

[39] The trial judge rejected the appellant’s evidence in this regard. S.D. Mathur did not testify nor were any banking documents produced by the appellant to corroborate S.D. Mathur’s involvement in that bank account.

[40] The court, however, still had the appellant’s own evidence that the account was that of BCMC – the Bahamian company of which the appellant was the sole director/shareholder.

[41] In light of his own evidence in relation to this account, the admission of the banking records can hardly be said to have rendered the trial unfair.

[42] We would reject this ground of appeal.

Sentence

[43] The appellant’s sentencing hearing took place in one day. Submissions were heard in the morning, and following a brief recess, the trial judge sentenced the appellant to six months incarceration, followed by twelve months probation and one hundred hours of community service.

[44] The defence sought a conditional sentence in the low to medium range, while the Crown sought incarceration for two years less a day.

[45] The appellant argues that the trial judge erred in principle in failing to consider and impose a conditional sentence in the circumstances of this case.

[46] In his reasons, the trial judge did not make any direct reference to a conditional sentence, however, it cannot be said that he was not alive to the issue. It was the only position advanced by the defence. Submissions had been made only very shortly before sentence was pronounced and in his reasons, his emphasis on general deterrence make it clear why he implicitly rejected a conditional sentence as he said:

In terms of the principles here, general deterrence is a paramount principle in this case. Others who would occupy positions similar to Mr. Mathur, to the extent that they pay attention to this, must be deterred from thinking that this type of conduct, as exemplified and described in the reasons of this case, will be tolerated by the court.

[47] This was not the first time the appellant had run afoul of the rules which govern the conduct of government employees in his position. He had been warned in the past and on another occasion suspended without pay for ten days for serious violation of the conflict of interest code.

[48] In our view, the sentence imposed was a reasonable one and well within the range for this type of offence and for this offender.

[49] For the foregoing reasons, the appeal against conviction is dismissed, leave to appeal sentence is granted but the appeal against sentence is dismissed.

RELEASED: April 30, 2010 “K.M. Weiler J.A.”

“JMacF” “J. MacFarland J.A.”

“I agree E.E. Gillese J.A.”

[^1]: The trial judge noted, at para. 168: “I am not satisfied on the evidence before me that the payments to 778 were for Mr. Mathur’s benefit. Ms. Mathur worked as a consultant and was paid fees for her work.”

[^2]: The other two payments were for work done for Mircom Technologies – another company to whom Mr. Mathur had referred his son. On December 20, 2000, S&O received a $5,350 payment from Mircom and on December 22, 2000, S&O received a further $7,033.34 from Mircom: see Reasons at para. 150. Please note that, according to the record, the first payment ($5,350) was technically made by “Amsdell” and not Mircom, although nothing appears to turn on this distinction: see ABC Vol. IV, Tab 26, p. 750.

[^3]: This section has since been amended. It now reads: “Every one commits an offence who... being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official” [Emphasis added].

[^4]: Section 121(1)(b) reads: “Every one commits an offence who... having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him.”

[^5]: The information requested included the sole signatory’s date of birth, account ID documents and the types of deposits made to the account: see Application Reasons at para. 11.

[^6]: The application judge appears to accept that having the Crown pursue an application under MLAT was indeed the only viable option available to the defence: see Application Reasons at paras. 25-26.

[^7]: During a judicial pre-trial on July 5, 2007, Gans J. agreed with the Crown’s assessment of its obligations: see ABC vol. II, Tabs 3E-I