The White House recently announced that the next G7 summit will take place at Donald Trump’s privately-owned Miami golf resort. It seems clear that President Trump will obtain a personal financial benefit from the United States hosting this major international event. US critics are calling the decision to hold the G7 at a Trump property illegal and even unconstitutional. For Canada and other G7 members with anti-corruption laws, the question should be, can they lawfully attend?

The White House announced on Thursday, 17 October 2019, that the United States will host the 2020 Group of Seven (G7) summit at President Trump’s privately-owned Trump National Doral Miami golf resort in Doral, Florida. The decision is being criticized in the US as a brazen conflict of interest. As a Washington Post article put it, “The president used his public office to direct a huge contract to himself”.

How should the US’s G7 guests respond? Daring Fireball blogger John Gruber says they should refuse to attend:

Attending — and spending their nation’s money at a Trump resort — will make them complicit in Trump’s kleptocracy. This is as much a violation of ethical norms — and the Constitution’s emoluments clause — as it would be if the summit were held at a neutral location but the other world leaders were expected to hand Trump envelopes stuffed with cash. Even if Trump were willing to foot the bill for the entire summit out of his own pocket — which, let’s face it, is not his style — it would still be grossly inappropriate and illegal on the grounds of the event’s significant promotional value alone.

Gruber questions the ethics of G7 members participating in an event at Doral. But for Canadian officials, there may also be a legal issue. If the Doral G7 really will benefit President Trump, can Canadian officials—from the prime minister down to junior staffers—lawfully attend it at all?

The Corruption of Foreign Public Officials Act

Canadian courts hesitate to intervene in the federal government’s conduct of foreign affairs. Foreign affairs in Canada (as in the UK) remain a prerogative of the Crown. As the Supreme Court of Canada reaffirmed in Canada (Prime Minister) v. Khadr 2010 SCC 3 at [37], “judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options”. Whether this approach will shift under the influence of the seemingly more probing review of prerogative powers permitted by the UK Supreme Court’s decision in R (Miller) v Prime Minister; Cherry v AG Scotland [2019] UKSC 41 remains to be seen.

But our courts are unlikely to be as cautious about foreign affairs when Parliament has spoken. The federal Corruption of Foreign Public Officials Act SC 1998 c 34 creates criminal offences around the bribery of foreign public officials.[1] A person can go to jail for up to 14 years for committing the Act’s main offence, set out in section 3(1):

Bribing a foreign public official 3 (1) Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official (a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or (b) 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.

Corruption d’agents publics étrangers 3 (1) Commet une infraction quiconque, directement ou indirectement, dans le but d’obtenir ou de conserver un avantage dans le cours de ses affaires, donne, offre ou convient de donner ou d’offrir à un agent public étranger ou à toute personne au profit d’un agent public étranger un prêt, une récompense ou un avantage de quelque nature que ce soit : a) en contrepartie d’un acte ou d’une omission dans le cadre de l’exécution des fonctions officielles de cet agent; b) pour convaincre ce dernier d’utiliser sa position pour influencer les actes ou les décisions de l’État étranger ou de l’organisation internationale publique pour lequel il exerce ses fonctions officielles.

Would section 3(1) prohibit the prime minister and other Canadian officials from attending a Doral G7?

The easy bits

First let’s get the easy bits out of the way.

President Trump is clearly a “foreign public official”. Section 2 of the Act defines foreign public official to include a person who holds an administrative position in a foreign state. The position of president is the top administrative position in the US.[2]

It is also clear that the prime minister of Canada and his officials are subject to section 3(1), which applies to “every person”. There is no exception for the head of government, other elected officials, or the staffers and civil servants who assist them.

The fact that the Doral G7 will take place outside of Canada does not protect Canada’s delegation from criminal liability. Section 5(1) of the Act applies it extraterritorially. So long as the members of Canada’s delegation are Canadian citizens or permanent residents, they are subject to the Act’s criminal prohibitions even when abroad.

“in order to obtain or retain an advantage in the course of business”

The offence in s. 3(1) applies to every person who acts “in order to obtain or retain an advantage in the course of business”. When the prime minister and his officials attend a G7 summit, are they seeking to obtain or retain an advantage in the course of business?

It depends what business means. Section 2 says business means “any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere” (“Commerce, métier, profession, industrie ou entreprise de quelque nature que ce soit exploités ou exercés au Canada ou à l’étranger”).

In that sense, is Canada’s G7 delegation doing business? I think so. They are certainly doing politics, and politics can be reasonably described as a profession, trade or calling (métier or profession). Depending on the content of the meeting’s agenda, they might even be said to be doing business in the commercial sense. Whether that is so or not, the Act does not appear to limit “business” to commerce.

A hypothetical may help. Imagine that a Canadian with strong views on same-sex marriage bribes a US politician to vote for or against some US legislative measure about same-sex marriage. Has the Canadian committed an offence under the Corruption of Foreign Public Officials Act? The legislative measure was not commercial in character (that is why I have chosen same-sex marriage as my example). The US politician who voted was not engaged in business, in the narrow commercial sense of that term, when she voted. And the Canadian who paid the bribe was not engaged in business in the commercial sense, either—on my hypothetical he is simply someone with strong views on same-sex marriage. Despite all this, there was business at hand. The business was the consideration by the US politician and her colleagues of the legislative measure.

It would be bizarre to conclude that a blatant bribe of a foreign legislator by a Canadian citizen does not come within the Corruption of Foreign Public Officials Act because “business” means commerce only. The Act’s concept of business must be broader. Section 2’s careful definition of “business” as “any business, profession, trade, calling”, etc. seems intended to ensure this breadth.

If, then, Canada’s G7 delegation are engaged in business, are they there “in order to obtain or retain an advantage in the course” of that business? Surely they are. No politician or public official goes to an international conference looking to lose an advantage. At the very least, Canada’s delegation will seek to protect (“retain”) Canadian interests. More likely, they will seek to promote (“obtain”) them.

“directly or indirectly gives” an “advantage or benefit”

The next step in section 3(1) is the giving, offering or agreeing to offer, directly or indirectly, a “loan, reward, advantage or benefit of any kind”. Our example is not about loans or rewards. The question is whether attending the G7 at President Trump’s Doral resort amounts to giving him, directly or indirectly, an advantage or benefit.

I don’t know how G7 summit expenses are paid. It’s probably complicated, but it likely comes down to one of three models: the host state covers the other delegations’ expenses, or each delegation pays its own way, or the costs are somehow split. My guess is that either the host state covers all the costs (which would be consistent with the fact that each G7 country takes turns hosting), or the host state covers most of the costs but each delegation pays some portion of them itself.

If the delegations are defraying the costs to some extent, where do those payments go? That is another thing I do not know. They may go directly to the host state, directly to the local service providers (the hotel, the restaurant, the car service, etc.), or to some intermediary like a travel agency or event planning outfit.

I hope I have made clear that this is all conjecture. I repeat: I don’t know how G7 summits are financed. But it may not matter. Section 3(1) says that every person commits an offence who, in order to obtain or retain an advantage in the course of business, “directly or indirectly gives” an advantage or benefit “of any kind” to a foreign public official. These two phrases may spare us knowing the details of G7 summit financing. Here is what I mean.

First, let us assume that all G7 expenses are covered by the host state. So for the Doral G7, the United States picks up the entire tab. In particular, the US pays the Trump National Doral Miami golf resort for the delegates’ accommodation, dining and related expenses. No money changes hands from the Canadian state (paying on behalf of its delegation) to the US state, or from Canada to the Doral resort. If all that is true, one might conclude that no offence has occurred under section 3(1), the margin note to which reads “Bribing a foreign public official”. How can anyone be guilty of bribing President Trump when no money has changed hands?

The answer may lie in the phrase “advantage or benefit of any kind” (avantage de quelque nature que ce soit). The advantages and benefits contemplated by section 3(1) are not limited to money. I come back to John Gruber’s sensible emphasis on “the event’s significant promotional value alone”. When the prime minister of Canada and his colleagues and officials attend the G7 at the Trump National Doral Miami golf resort, the resort clearly benefits. Had you ever heard of the Doral resort before now? Me neither. The resort will obviously be promoted by the presence of the G7 delegations. It already has been.

Clearly it is not every Canadian whose mere presence at one of President Trump’s properties advantages or benefits the president in the way contemplated by section 3(1) of the Act. But the prime minister and his officials are not ordinary Canadians (for these purposes, I mean), and the G7 is no ordinary occasion.

In short, it is arguable that for the prime minister and his officials to attend a G7 summit at a property owned by President Trump constitutes an “advantage or benefit of any kind” to the president—even if no money changes hands—by virtue of the significant promotional value that the event, and the delegates’ presence there, give the resort.

Now let us assume that some part of the cost of the Canadian delegation’s attendance at the G7 is covered by Canada. If so, we can be sure that it is not the politicians and their officials paying for their hotel rooms, food, entertainment and travel. It is Canadian taxpayers, through the intermediary of the Receiver General or some other federal paymaster. Can the prime minister and his retinue be guilty of the section 3(1) offence if money is changing hands, but it is the taxpayers’ money and not their own?

This is where the phrase “directly or indirectly” comes in. The prime minister and his retinue will not be out of pocket. They are not directly giving a financial advantage or benefit to President Trump. But by showing up at Doral, or perhaps simply by promising to attend, they are triggering the federal government mechanisms by which any amounts payable by Canada to defray the delegation’s costs are paid. The ultimate payee in this transaction is the owner of the Doral resort: President Trump.

In short, if Canada is paying something towards the costs of accommodating Canada’s delegation to the 2020 G7 at the Doral resort, the prime minister and the rest of the Canadian delegation might well be said to be indirectly giving President Trump an advantage or benefit, of a financial nature, merely by attending and triggering Canada’s obligation to pay these expenses to (ultimately) President Trump. This is in addition to the non-pecuniary promotional advantages or benefits the delegation’s attendance brings to Doral, and by extension to the US president.

Character of the advantage or benefit

We pass now to section 3(1)’s two alternative paragraphs. These have to do with the character of the loan, reward, advantage or benefit. It must be given or offered either “(a) as consideration for an act or omission” (en contrepartie d’un acte ou d’une omission) or “(b) to induce the official to use his or her position to influence any acts or decisions of the foreign state…for which the official performs duties or functions” (pour convaincre ce dernier d’utiliser sa position pour influencer les actes ou les decisions de l’État étranger…pour lequel il exerce ses fonctions officielles).

It seems clear that section 3(1)(a) does not apply. Canada’s delegates to the Doral G7 will not be attending as consideration for some act or omission by President Trump. This is not a case of quid pro quo (e.g., “you come to Doral and I will remove the steel tariffs”).

That leaves section 3(1)(b). Can it be said that the Canadian delegation’s presence at the Doral G7 is to induce (convaincre) President Trump to use his position to influence any acts or decisions of the United States? I think it can. Influence is what international summitry is all about. Every delegation is seeking to influence the other delegations and the states they represent. The term “induce” might seem to have a technical meaning beyond mere influence, but the French term convaincre (convince) suggests otherwise.

The exceptions probably don’t apply

The analysis above suggests that it is at least possible that the prime minister and the rest of the would-be delegates to the Doral G7 are exposing themselves to criminal liability if they choose to go. Merely by attending this event at a Trump-owned property, they may be committing the offence of bribing a foreign public official contrary to section 3(1) of the Act.

Section 3(3) excludes certain cases from the scope of the offence. First, no person is guilty of the offence if the loan, reward, advantage or benefit is permitted or required under foreign law. I cannot say whether holding a G7 at a resort owned by the president is permitted under US law or not. But based on American reaction to the Doral announcement so far, it is at least uncertain whether Canadian delegates to the Doral G7 could successfully invoke this provision.

The second exception applies where the person is made to pay the reasonable expenses incurred in good faith by or on behalf of the foreign public official, and those expenses are directly related to promoting the person’s products and services, or performing a contract between the person and the foreign state. This provision does not apply. The Canadian delegates are not promoting their own products and services, nor are they performing a contract between themselves and the United States. In any case, the cost of holding the G7 at Doral is hardly a reasonable expense incurred in good faith by President Trump.

The OECD treaty underlying the Canadian law

I have focussed this discussion on the terms of Canada’s anti-bribery statute. But that Act’s full title is “An Act respecting the corruption of foreign public officials and the implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and to make related amendments to other Acts”. This tells us that the Act is meant to perform Canada’s obligations under the OECD’s Anti-Bribery Convention.[3] Courts interpreting the Canadian law have looked to the underlying OECD treaty.[4]

The fact that the Canadian Act implements an OECD treaty is intriguing in its implications. All of the five other G7 states invited to Doral in 2020 are parties to that same treaty. Furthermore, the OECD web site reports that they all have domestic legislation implementing the treaty. If the rest of the Doral G7 invitees are states parties to the Anti-Bribery Convention, and they have all implemented it in their domestic law, their politicians and officials may find themselves in roughly the same predicament I have described for the Canadian delegation.

So the question is: if President Trump throws a party for the G7 leaders at his golf club in Florida, will anyone dare to come?

UPDATE: President Trump announced late on Saturday night (just as I was finishing this blog post) that the G7 won’t take place at Doral:

 

NOTES

[1] The Act was amended to strengthen it in 2013 by the Fighting Foreign Corruption Act SC 2013 c. 26.

[2] The definition of foreign public official also includes “a person who performs public duties or functions for a foreign state”. President Trump employs family members in various advisory positions. This suggests that even if the Doral golf resort turns out to be owned by President Trump’s children or other family members, the foreign public official requirement could be met.

[3] Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997 [1999] CanTS no. 23.

[4] E.g., R. v. Karigar 2017 ONCA 576 at paras. 37-42 (rejecting the submission that the court below erred in looking to the Convention for interpretive purposes. Another anti-corruption treaty to which Canada is a party, the United Nations Convention Against Corruption 2003 [2007] CanTS no. 7, may also be relevant for interpretive purposes.