COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Watt and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Appellant (Respondent)
and
Robert Thomas Barra
Respondent (Appellant)
AND BETWEEN
Her Majesty the Queen
Appellant (Respondent)
and
Shailesh Hansraj Govindia
Respondent (Appellant)
AND BETWEEN
Her Majesty the Queen
Appellant
and
Robert Thomas Barra
Respondent
Seth P. Weinstein and Naomi M. Lutes, for the appellant/respondent Robert Thomas Barra (C66607/C66778)
Graeme A. Hamilton, for the appellant Shailesh Hansraj Govindia (C66609)
James D. Sutton and Allyson Ratsoy, for the appellant/respondent Crown (C66778/C66607 and C66609)
Heard: December 9 and 10, 2020 by videoconference
On appeal from the convictions entered on January 11, 2019 by Justice Robert J. Smith of the Superior Court of Justice, with reasons at 2018 ONSC 57 (C66607 & C66609) and the sentence imposed on March 7, 2019, with reasons reported at 2019 ONSC 1786 (C66778).
A. Overview
1Robert Thomas Barra and Shailesh Hansraj Govindia, the appellants, were convicted of agreeing to bribe a foreign public official, the Indian Minister of Civil Aviation, contrary to s. 3(1) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (“CFPOA”). They were each sentenced to 2.5 years in custody.
2Together, the appellants advance six grounds of appeal from conviction:
(i) that the judge who heard their s. 11(b) of the Canadian Charter of Rights and Freedoms application prior to trial erred in failing to conclude that there had been unreasonable delay;
(ii) that the trial judge erred in failing to declare a mistrial in the wake of late Crown disclosure;
(iii) that the trial judge erred in concluding that there was a real and substantial connection between the offence and Canada, such that territorial jurisdiction had been established;
(iv) that the trial judge erred in his application of the law of conspiracy;
(v) that the trial judge misapplied the co-conspirator’s exception to the hearsay rule pursuant to R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; and
(vi) that the trial judge’s reasons for judgment are insufficient and reflect a myriad of difficulties, including a misapprehension of evidence and a failure to grapple with credibility issues.
3In addition, Mr. Govindia claims that the trial judge failed to read down the conspiracy charge in a way that conformed to the charge upon which he had been extradited from the United Kingdom, thereby offending the principle of specialty.
4The Crown asks that we clarify the mens rea requirement for an offence under s. 3(1) of the CFPOA. The Crown also seeks leave to appeal from the sentence imposed on Mr. Barra. The Crown requests that Mr. Barra’s 2.5-year sentence be increased to a 4-year custodial term, in accordance with the Crown’s submissions at the sentencing hearing below.
5In our view, this appeal must be allowed on the basis of the erroneous approach taken to the mistrial application. Accordingly, there is no need to address every issue raised on appeal. Rather, our decision only touches upon those issues that are necessary to the resolution of the appeal and that assist in providing guidance to the court rehearing this matter.
B. STATUTORY PROVISIONS
6Section 3(1) of the CFPOA reads as follows:
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.
7A “foreign public official” is defined in s. 2 as:
(a) a person who holds a legislative, administrative or judicial position of a foreign state;
(b) a person who performs public duties or functions for a foreign state, including a person employed by a board, commission, corporation or other body or authority that is established to perform a duty or function on behalf of the foreign state, or is performing such a duty or function; and
(c) an official or agent of a public international organization that is formed by two or more states or governments, or by two or more such public international organizations. (agent public étranger)
C. The General Factual Backdrop
8Cryptometrics Inc. (“Cryptometrics U.S.”) was a Delaware company specializing in biometric technology. Cryptometrics Canada Inc. (“Cryptometrics Canada”) was its Canadian subsidiary, focusing upon the development and rollout of a facial recognition software. In September 2005, Cryptometrics Canada began working on a bid to sell its technology to Air India. Air India is said to be a corporation that is owned directly by the Indian government.
9Mr. Barra was a co-Chief Executive Officer (“CEO”) of Cryptometrics U.S. The trial judge found as a fact that he was the “controlling mind” of both Cryptometrics U.S. and Cryptometrics Canada.
10Mr. Govindia was the CEO of a company named Emerging Markets Groups Holdings Ltd. (“EMG”).
11The Crown alleged that the appellants and other individuals conspired together in a bribery scheme to allow Cryptometrics Canada to obtain a contract with Air India.
12The alleged bribery was said to have taken place in two stages over a period of three years, with one constant purpose in mind: to bribe Air India and Indian officials to obtain the contract.
13Phase One allegedly involved a plan by Mr. Barra and other individuals to pay certain bribes. The other individuals included: Dario Berini, the Chief Operating Officer of Cryptometrics U.S. and Cryptometrics Canada; Robert Bell, an employee of Cryptometrics Canada who reported directly to Mr. Berini; and Nazir Karigar, an individual who was previously convicted for his role in the bribery: R. v. Karigar, 2013 ONSC 5199, aff’d 2017 ONCA 576, 350 C.C.C. (3d) 141, leave to appeal refused, [2017] S.C.C.A. No. 385. As will become clear in these reasons, Mr. Berini was a critical Crown witness at trial. The late Crown disclosure was tied directly to communications between Mr. Berini and the senior Crown counsel. We will come back to this disclosure issue at para. 82.
14During Phase One, Mr. Barra, Mr. Berini, Mr. Bell, and Mr. Karigar were alleged to have conspired to bribe Indian foreign officials as follows: they allegedly agreed to pay $200,000 to Air India employees who were in charge of the bidding process for the contract; and they allegedly agreed to pay $250,000 to Praful Patel, the Indian Minister of Civil Aviation, in order to obtain the contract with Air India. Phase Two allegedly involved a further plan by Mr. Barra, Mr. Berini, and Mr. Govindia to pay Mr. Patel a $500,000 bribe to further ensure the award of the Air India contract. In Phase Two, Mr. Govindia replaced Mr. Karigar as a member of the conspiracy.
15In relation to Phase One, the trial judge concluded that, while Mr. Barra was aware that the $200,000 was in fact transferred for the purpose of bribing various Air India employees, he had a reasonable doubt as to whether Mr. Barra knew that the bribe was being made to “foreign public officials” within the meaning of s. 2 of the CFPOA.
16However, the $250,000 bribe was another story. The trial judge concluded beyond a reasonable doubt that Mr. Barra not only knew that this amount was being paid to Mr. Patel, but he also knew that Mr. Patel was in fact a foreign public official and that the money was being used as a bribe to obtain the contract with Air India.
17As for Phase Two of the alleged bribery, the trial judge found as a fact that Mr. Barra, Mr. Berini, and Mr. Govindia agreed that $500,000 would be paid to Mr. Patel to obtain his approval of the contract with Air India.
18Mr. Govindia testified at trial. He acknowledged that he was present for the discussions undergirding Phase Two, discussions that took place in New York City on November 2, 2007. Even so, he maintained at trial that his agreement to participate in the bribe, which was caught on audiotape, was a façade and that he never intended to actually pay the bribe. Rather, Mr. Govindia testified at trial that he “agreed” only so that he would be more likely to obtain the consulting contract that was on the table, having no intention of actually paying a bribe in the end. While Mr. Govindia acknowledged that it was a serious error of professional judgment on his part to have pretended to be willing to bribe Mr. Patel, he said that he cleared things up with Mr. Barra the morning following the recorded meeting, saying that he would not be involved in this type of conduct.
19The trial judge rejected Mr. Govindia’s evidence, concluding instead that he and Mr. Barra reached an actual agreement to pay the $500,000 bribe to Mr. Patel to obtain his approval of the Air India contract. As we will later explain, in reaching that conclusion, the trial judge relied in part on Mr. Berini’s evidence, including aspects of his evidence that were touched by the Crown’s late disclosure.
20The trial judge concluded that this was one continuous conspiracy and, even if that was not the case, the fact that Mr. Govindia came into the conspiracy later than Mr. Barra mattered not to whether the essential elements of the alleged conspiracy had been proven beyond a reasonable doubt.
D. The Section 11(b) Ruling
(1) Introduction
21The appellants brought a s. 11(b) application prior to the outset of trial, seeking a stay of proceedings: R. v. Barra and Govindia, 2017 ONSC 6008, 394 C.R.R. (2d) 1.
22At that time, the appellants agreed before the application judge that the total period of delay between the laying of the charges on June 4, 2014 and the anticipated end of trial on February 9, 2018 was 44 months. Although the trial took longer than this to complete, the appellants did not renew their application, and they advance their arguments on appeal on the basis of the anticipated 44 months of delay.
23As will be seen, a substantial passage of time was consumed by the fact that when the charges were laid, Mr. Barra was living in the United States, while Mr. Govindia was living in the United Kingdom. Therefore, the Crown was required to seek their extraditions to Canada. The charges for both appellants were laid and warrants were issued for their arrests on June 4, 2014. The extradition process ultimately resulted in their return to Canada many months later: Mr. Barra voluntarily surrendered on January 5, 2016; and Mr. Govindia was extradited to Canada on January 27, 2016 and appeared in court the next day. Accordingly, 19 months passed between the laying of the charges and Mr. Barra’s return to Canada, and 19 months and 3 weeks passed in the case of Mr. Govindia.
24Once both appellants had attorned to the jurisdiction, efforts to set preliminary inquiry dates commenced in earnest. Yet, the matter was adjourned multiple times between the end of January 2016 and March 2016. While Mr. Barra waived his s. 11(b) rights for that period of delay on March 11, 2016, Mr. Govindia did not. Furthermore, while there was some discussion about severing the proceedings involving the two appellants, the Crown instead chose to prefer a direct indictment, obviating the need to find mutually agreeable preliminary inquiry dates. In the end, a three-week judge-alone trial was scheduled to commence on January 22, 2018, thereby concluding on February 9, 2018.
(2) The Section 11(b) Application
25At the s. 11(b) application, Mr. Barra argued that because the indictment had been preferred, he had been deprived of a preliminary inquiry. As such, this case did not truly resemble a traditional case before the Superior Court of Justice. Therefore, according to Mr. Barra, an 18-month presumptive ceiling applied instead of a 30-month ceiling. The application judge rejected this argument, concluding that, despite the indictment having been preferred, the 30-month ceiling for trials taking place in the Superior Court of Justice was still the appropriate measure to ascertain whether an accused’s right to be tried within a reasonable time was violated.
26Following a review of the periods of delay due to defence action, the application judge determined the defence delay as follows: eight weeks for Mr. Barra; and six weeks for Mr. Govindia. Both of these periods of defence delay were deducted from the delay of 44 months, thereby leaving a delay of 42 months for Mr. Barra and 42 months and 2 weeks for Mr. Govindia. While Mr. Barra did waive a period of delay on March 11, 2016, the application judge determined that Mr. Barra’s waiver had no impact on the total period of delay in this case. Therefore, no deduction was made for Mr. Barra’s waiver of delay.
27The application judge then considered the effect of the extradition process on the total delay. He characterized extradition as a discrete event. While discrete events are subtracted from the total period of delay under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 75, the application judge concluded that the Crown had not been entirely diligent in pursuing the extradition of both appellants during four specific periods of evident inactivity. As such, he determined that four months should be removed from the discrete event to account for the periods of time when the Crown could have advanced the extradition process more quickly.
28Having accounted for that period of 4 months, the application judge then deducted what was left of the discrete event: 15 months in the case of Mr. Barra; and 15 months and 3 weeks for Mr. Govindia. Including the defence delay, this left a net delay of 27 months for Mr. Barra and 26 months and 3 weeks for Mr. Govindia, both falling below the applicable presumptive ceiling of 30 months.
29Finally, and in the alternative, the application judge concluded that even if he was wrong respecting some aspects of the extradition delay, he would have concluded that the complexity of this case would justify any period of delay that fell above the applicable presumptive ceiling.
(3) The Arguments on Appeal
30First, the appellants argue that the application judge erred in concluding that the 30-month presumptive ceiling applied to the “one-stage” proceeding that followed the indictment having been preferred. Even so, they acknowledge that this court is bound by the decision of Strathy C.J.O. in R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at paras. 69-71, leave to appeal refused, [2019] S.C.C.A. No. 423, where he determined that the 30-month presumptive ceiling applies even in the context of a one-stage proceeding because an indictment has been preferred.
31Second, while the appellants accept that extradition can constitute a discrete event, they argue that the Crown has a duty to mitigate any delay arising from the extradition process and that the application judge erred in failing to appreciate that fact. While the appellants accept that the period of time that an extradition request sits with a foreign authority is properly described as a discrete event that should be deducted from the total period of delay, they seem to argue that all other time related to the extradition request does not constitute a discrete event. If the appellants are right, then the period of time deducted from the total delay would be decreased substantially, placing the net delay for both appellants above the 30-month ceiling.
32Third, if their submission concerning the discrete event is accepted, the appellants argue that the apparent complexity in this case is a “mirage”. Therefore, complexity cannot be used to justify a period of delay that is above the presumptive 30-month ceiling.
33The Crown submits that the application judge made no error in his decision to treat extradition as a discrete event. However, the respondent argues that the application judge should not have removed four months from the discrete event to account for periods of Crown inactivity, as the application judge should not be micromanaging extradition once it is found to be a discrete event: see R. v. Prince, 2018 ONSC 3033, at para. 54.
(4) Analysis
34Bulhosen forecloses the appellants’ first argument. As to the second, we do not agree with the approach endorsed by the appellants concerning the discrete event, and we would not interfere with the application judge’s deduction of four months from the discrete event, as proposed by the respondent.
35Under Jordan, discrete events are exceptional circumstances that are subtracted from the total period of delay: Jordan, at para. 75. Extradition constitutes such a discrete event: Jordan, at paras. 72, 81. The extradition process is a necessary one that can take time to complete, but it must be finalized before the accused can be tried. While some of the process is in the hands of Canadian authorities, a significant portion of it is in the hands of foreign jurisdictions, where control over timing is difficult. Moreover, the complexity of the process should not be underestimated, involving as it does the need to meet international obligations, which can fluctuate depending upon the state from which the extradition is sought.
36At the same time, it is in everyone’s interests that extradition be diligently pursued by the Canadian authorities. Therefore, we do not see an error in the application judge’s determination that he would remove four months from the discrete event because the Canadian authorities did not appear to be diligently pursuing the extraditions during that period of time. While we would not find an error in that approach, we would caution that micromanaging extraditions from an after-the-fact perspective may risk missing the nuances involved in those complex international affairs. Of course an accused, if concerned about delay, could voluntarily attorn to the jurisdiction, which would obviate the need for the extradition.
37In any event, we find no error in failing to remove more time from the discrete event.
38Mr. Govindia also argues on appeal that the application judge erred by underemphasizing the effect of what he says was the Crown’s refusal to accept his offers to voluntarily surrender in January 2015. This position is at odds with the factual record.
39While Mr. Govindia did propose to surrender, the record reveals that the Crown subsequently made inquiries about Mr. Govindia’s financial circumstances in order to make a decision on bail. Mr. Govindia’s counsel in the United Kingdom informed the Crown that he would obtain further instructions from Mr. Govindia. However, he did not follow up with the Crown regarding the proposal to surrender voluntarily.
40Accordingly, in our view, the application judge’s ruling is without error. The net delay for both appellants is below the 30-month ceiling. There is no suggestion that the appellants’ s. 11(b) rights were infringed if the net delay falls below that ceiling.
41Moreover, while it is unnecessary to deal with the matter, we note that we agree with the application judge’s reasons as they relate to the complexity in this case and how it could have factored in the s. 11(b) analysis. For the reasons expressed by the application judge, if the net delay had been above the 30-month ceiling, it would have been justified by reason of complexity. The disclosure in this case was voluminous, exceeding 30,000 pages. Extradition had to be sought from two separate countries. Finally, the provision under which the appellants were prosecuted is a rarely used one and, therefore, there is little case law amplifying the correct legal course.
42Therefore, even if we were of the view that this matter fell a distance above the 30-month ceiling, like the application judge, we would not have determined that it constituted unreasonable delay. Therefore, this ground of appeal cannot succeed.
E. JURISDICTION
(1) Introduction
43The appellants argue that the trial judge erred in finding that the Ontario Superior Court of Justice had territorial jurisdiction to try them for these offences. They argue that, on the facts, there was no real and substantial connection between Canada and the offences charged. Although Mr. Karigar – separately tried and convicted for the same conspiracy – made a similar jurisdictional challenge which was rejected at his trial and by this court on appeal, they say that their situation is distinguishable.
44Mr. Govindia argues as well that the trial judge erred in failing to find that Count 1 of the indictment against him violated the principle of specialty, which prevents the Crown from prosecuting an extradited accused for an offence other than that for which he was extradited. He submits that the trial judge erred by failing to read down Count 1, with the consequence that the trial judge had no jurisdiction to try him on it.
(2) Territorial Jurisdiction
(i) The Trial Judge’s Reasons
45The trial judge’s reasons finding that the Superior Court had territorial jurisdiction are reported at 2018 ONSC 2659.
46The trial judge derived the following propositions about territorial jurisdiction from the leading decision of R. v. Libman, 1985 CanLII 51 (SCC), [1985] 2 S.C.R. 178, at pp. 211-13. First, where the statute is silent on its territorial reach, there must be a substantial link between the offence and Canada for a Canadian court to have territorial jurisdiction. This requires a significant portion of the activities constituting the offence to have taken place in Canada. Second, the assessment of these activities considers all relevant facts that took place in Canada that give this country an interest in prosecuting the offence, including facts that are not strictly part of the offence, such as the location where the fruits of the offence are obtained. Third, the law would be “lame” if it could be “avoided by the simple artifice of going outside the country to obtain the fruits of a scheme that was hatched and largely put into effect in Canada.”
47The trial judge noted that, in this case, the fruits of the transaction – a contract for Cryptometrics Canada – were to be obtained in Canada, and that:
…the CFPOA would be lame if it did not apply to a situation where members of senior management of a Canadian company could with impunity arrange to meet with others outside of Canada and agree to pay bribes to foreign officials to obtain a contract for the Canadian company.
48The trial judge then considered the application of this court’s decision in Karigar. He observed that, although Mr. Karigar was a Canadian citizen and resident and the appellants in this case were not, this was only one of the factors on which the court relied to find jurisdiction. He found that the other factors in Karigar were present:
[A] Canadian company was the contracting party; a Canadian company would receive an unfair advantage; the fruits of the contract would be obtained through bribery and would benefit the Canadian company; a great deal of the contract work would be performed in Canada; and almost all of the documents and e-mails evidencing the transaction were seized in Canada.
49He added that Mr. Govindia had replaced Mr. Karigar in the scheme and that the active participation of Mr. Berini,
the Chief Operating Officer and Manager of the Canadian company at a meeting outside of Canada, where there is evidence that he agreed with Barra and Govindia to pay a bribe of $500,000 to the Indian Minister to obtain a contract for the Canadian company that he managed, constitutes a “real and substantial link” between the offence and Canada.
(ii) The Appellants’ Arguments
50The appellants argue that they are both foreign nationals, and their participation in the alleged conspiracy did not take place in Canada. Mr. Barra’s approval of payments was given, and those payments were made, from the United States, not Canada. Nothing in the CFPOA in force at the material time provided for extra-territorial jurisdiction. The CFPOA has since been amended to deem acts or omissions occurring elsewhere to have taken place in Canada if the perpetrator is a citizen or permanent resident of Canada or is present in Canada after the offence. None of those amended provisions apply to the appellants. It would be counterintuitive, say the appellants, to read the CFPOA prior to its amendment as conferring more expansive jurisdiction than post-amendment.
51The appellants also argue that the link to Canada formed by the contract having been sought for a Canadian company is insufficient, as the acts of the corporation Cryptometrics Canada – a separate legal person – cannot be conflated with those of the appellants. Although they concede that where the fruits of the transaction are to be obtained is relevant to jurisdiction, they submit that it is not determinative, and that where the conduct occurs, rather than the location of its results, is what matters. In any event, they say much of the work that would have been done under the contract would have been performed in India.
52Finally, the appellants renew the argument rejected by the trial judge that Karigar is distinguishable due to Mr. Karigar’s Canadian citizenship and residence.
(iii) Analysis
53The trial judge properly applied the principles in Libman and Karigar to the facts. He was entitled to find that the Superior Court had territorial jurisdiction. We see no error in his conclusion that the alleged conspiracy had a substantial link – a real and substantial connection – to Canada.
54The alleged conspiracy was about Cryptometrics Canada, a Canadian company, obtaining a contract to supply its biometrics recognition system to Air India, through the unlawful means of paying bribes. Mr. Karigar, Mr. Bell, and Mr. Berini were representatives of Cryptometrics Canada involved in the agreement to pay bribes; the appellant Mr. Govindia replaced Mr. Karigar in that very conspiracy; and the appellant Mr. Barra, also a party to the conspiracy who approved the payments, was found by the trial judge to be the controlling mind of Cryptometrics Canada. The substantial benefits that were projected to flow from the contract with Air India were going to be obtained in Canada. The appellants’ argument would require giving minimal effect to the Canadian aspects of this case, instead focusing on the appellants’ physical location when they made the agreement that formed the conspiracy and on whether they chose to flow the alleged bribes through Canada.
55We reject doing so. Facts that are relevant to the existence of a substantial link to Canada are those that “legitimately give this country an interest in prosecuting the offence”, even if they may not “in strictness constitute part of the offence”: Libman, at p. 211. In this case, the “in Canada” facts give this country a legitimate interest in prosecuting the offence.
56The appellants argue that this analysis conflates the individuals with Cryptometrics Canada, contrary to the principle of corporate separateness. There is no merit to that submission. The conspiracy the appellants are alleged to have entered was to obtain a contract for Cryptometrics Canada, of which the appellant Mr. Barra was the controlling mind. No conduct of the company is being attributed to the appellants.
57The appellants also argue that it is only a relevant, but not a determinative, jurisdictional fact that the illicit scheme was designed to deliver its benefits in Canada. However, the facts the appellants propose as determinative against jurisdiction – that the alleged conspirators were outside Canada when they agreed to pay the bribes to secure the contract for Cryptometrics Canada, or that they chose to flow the bribe payments from the United States – are not facts that undercut the legitimacy of Canada’s interest in prosecuting the offence or raise concerns of international comity. As La Forest J. stated in Libman, it would be wrong to ignore:
…the fact that the fruits of the transaction were obtained in Canada as contemplated by the scheme. Their delivery here was not accidental or irrelevant. It was an integral part of the scheme. While it may not in strictness constitute part of the offence, it is, I think, relevant in considering whether a transaction falls outside Canadian territory. For in considering that question we must, in my view, take into account all relevant facts that take place in Canada that may legitimately give this country an interest in prosecuting the offence. One must then consider whether there is anything in those facts that offends international comity.
58Holding that the Superior Court has jurisdiction does not give the CFPOA in force at the time a broader jurisdictional reading than the subsequently amended version. Jurisdiction is founded on the real and substantial connection of the offence charged to Canada.
59Finally, we reject the argument that the decision in Karigar was distinguishable. We agree with the reasons of the trial judge in this regard.
60Accordingly, we reject this ground of appeal.
(3) The Principle of Specialty
(i) The Context
61Canada requested Mr. Govindia’s extradition from the United Kingdom. At the time of the application for extradition, Mr. Govindia had been charged on an Information, Count 1 of which read as follows:
…between June 1, 2005, and January 1, 2008, inclusively, at the City of Ottawa in the said region and elsewhere in Canada, and in the United States of America and in India, in order to obtain or retain an advantage in the course of business, directly or indirectly gave, offered or agreed to give or offer a loan, reward, advantage or benefit to a foreign public official, or to any person for the benefit of a foreign public official, contrary to section (3)(1) of the CFPOA and did thereby commit an indictable offence pursuant to section 3(2) of that Act.
62The Westminster Magistrates’ Court issued a warrant for Mr. Govindia’s arrest for two offences, one of which was:
Between the 1st June 2005, and 1st of January 2008, in the Territory of Canada, you conspired with others to Bribe Indian public officials relating to an Air India contract. Contrary to section 1 of the Criminal Law Act 1977... if it had occurred in England and Wales…
63On November 9, 2015, Mr. Govindia consented to extradition on the above charges, and a Certificate of Sending was issued which repeated the language in the arrest warrant. On January 5, 2016, an order for his extradition was made, and on January 27, 2016, Mr. Govindia was extradited to Canada.
64On November 16, 2016, a direct indictment was preferred. Count 1 read as it did in the Information at the time of Canada’s application for extradition from the United Kingdom, set out at para. 61 of these reasons.
65At trial, Mr. Govindia sought to have Count 1 read down to a charge that he conspired “in Canada” only, on the basis that the Count as drafted in the indictment was broader than the charge on which he was extradited. The trial judge refused.
(ii) The Trial Judge’s Reasons
66The trial judge’s reasons on this issue are also reported at 2018 ONSC 2659. He referred to s. 80 of the Extradition Act, S.C. 1999, c. 18, which codifies the principle of specialty and prevents the Crown from prosecuting a person for an offence other than the one for which they were extradited. The principle is based on the implied condition of an extradition treaty that, when a state surrenders an accused in relation to a particular crime, the state requesting extradition will not try the person for any other crime. The factual record may be examined to determine the charges that were the subject of the surrender: R. v. MacIntosh, 2008 NSCA 124, 241 C.C.C. (3d) 553, at paras. 15-17.
67The trial judge found that the charges for which extradition was sought were exactly the charges in the indictment before him; that exact wording was in the extradition request and considered by the Westminster Magistrates’ Court. The fact that the Magistrates’ Court warrant and the Certificate of Sending had a more limited reference to the location of the offence than the indictment was because the former was meant to convey that conspiring to bribe Indian officials relating to an Air India contract would be an offence if the conduct alleged by Canada had occurred in England. This simplified version was not intended to limit the charges on which Mr. Govindia was extradited to anything “other than those specified in the materials before the Westminster Magistrates’ Court.”
(iii) Mr. Govindia’s Arguments
68Mr. Govindia submits that the trial judge erred by looking behind the Certificate of Sending as there was no ambiguity about the territorial scope of the charge considered and ruled upon by the Westminster Magistrates’ Court. He also argues that there was no evidence that the application for extradition included the actual wording of the conspiracy charge in the indictment, nor that the extradition arrest warrant was merely a simplified description of the offence.
(iv) Analysis
69In our view, the trial judge did not err in refusing to find a violation of the principle of specialty and therefore did not err in refusing to read down Count 1 of the indictment.
70The trial judge was entitled to find that the application for extradition included the actual wording of the conspiracy charge that ultimately appeared in the preferred indictment as Count 1, based on the Affidavit of Corporal Laroche, RCMP investigator, sworn June 12, 2015, at paras. 2-3 and Exhibit A of that affidavit. Indeed, citing that very evidence, Mr. Govindia states in his factum that “the conspiracy charge that formed the basis for Canada’s request for Govindia’s extradition was identical to the charge in the indictment…”.
71Mr. Govindia concedes that a Canadian court may examine the record in the extradition proceeding to the extent necessary to factually determine which charges were the subject of the accused’s surrender. The trial judge did exactly that and determined that the charges on which Canada sought extradition were the charges on which Mr. Govindia was surrendered. He did not confuse the inquiry with one to determine the charges on which Mr. Govindia ought to have been extradited: MacIntosh, at paras. 15-17. His factual determination is entitled to deference.
72Finally, the trial judge did not err in concluding that the simplified description in the extradition arrest warrant (repeated in the Certificate of Sending) was not intended to limit the charges to anything other than what was specified in the request for extradition. That conclusion followed from his finding of fact referred to above, and his interpretation of the extradition warrant and Certificate of Sending read as a whole. The language of those documents referred to offences committed in the Territory of Canada which, if committed in England, would be an offence. The trial judge was entitled to read the reference to Canada as having been inserted for that purpose, rather than for the purpose of limiting the charges as Mr. Govindia contends.
(4) The Mens Rea Requirement for a CFPOA Offence
(i) The Trial Judge’s Reasons
73The trial judge held that with respect to the $200,000 to be paid to two Air India officials, the Crown failed to prove that Mr. Barra had the necessary mens rea for an offence under s. 3 of the CFPOA, because he did not know that those individuals were foreign public officials.
74The trial judge held that s. 3(1) of the CFPOA, like bribery, is a specific intent offence. He relied on R. v. Smith (1921), 1921 CanLII 634 (ON CA), 67 D.L.R. 273, at p. 275 (Ont. C.A.) for the proposition that “knowledge by the accused of the official character of the person to whom the bribe is offered is an essential element of bribery”.
75The trial judge was not satisfied beyond a reasonable doubt that Mr. Barra nor Mr. Berini knew that the Air India officials who received bribes were foreign public officials as defined in the CFPOA. He found that Mr. Bell and Mr. Berini, but not Mr. Barra, reasonably but incorrectly believed that Air India was a Crown corporation; in fact, however, it was owned directly by the Government of India, making the Air India employees foreign public officials as defined in the CFPOA.
(ii) The Crown’s Arguments
76The Crown argues that the trial judge erred in his formulation of what knowledge constitutes the necessary mens rea for this offence. Although the Crown submits that this will have no effect on the outcome, it submits that clarification of the mens rea element is warranted.
77The Crown argues that if Mr. Barra knew the bribes were going to Air India employees, the scope of their responsibilities, and their ability to influence the awarding of a contract by Air India, then he had the necessary mens rea. The question of how those facts fit within the definition of a foreign public official in s. 2 of the CFPOA is, according to the Crown, a question of law. An erroneous view of the law is not a defence: Criminal Code of Canada, R.S.C., 1985, c. C-49, s. 19.
(iii) Analysis
78In our view, the trial judge did not err in his conclusion on mens rea.
79In order to have the necessary mens rea for an offence under s. 3(1) of the CFPOA, an accused must know that the person bribed or offered a bribe has the characteristics described in the definition of “foreign public official” by ss. 2(a)-(c) of the CFPOA, which reads as follows:
(a) a person who holds a legislative, administrative or judicial position of a foreign state;
(b) a person who performs public duties or functions for a foreign state, including a person employed by a board, commission, corporation or other body or authority that is established to perform a duty or function on behalf of the foreign state, or is performing such a duty or function; and
(c) an official or agent of a public international organization that is formed by two or more states or governments, or by two or more such public international organizations. (agent public étranger)
80In a case where the person bribed or offered a bribe is employed by a corporation, to have the necessary mens rea, the accused must know not only that the person was employed by the corporation, but that the corporation was established to perform a duty or function on behalf of a foreign state, or is performing such a duty or function. The accused need not know that this is how the CFPOA defines a foreign public official, nor that bribing the person is illegal.
81The trial judge did not find that Mr. Barra knew that Air India was established to perform a duty or function on behalf of the state of India. A corporation that has the name of a country in it is not necessarily one formed to carry out a duty or function of the government of that country. Although the trial judge referred to the belief of Mr. Berini and Mr. Bell that Air India was a Crown corporation, he also noted that their belief was inaccurate. Importantly, however, he did not draw the inference that Mr. Barra shared that belief and, in our view, he was not obliged to. In light of that, it is unnecessary to consider whether that belief, if shared by Mr. Barra, would have been tantamount to knowledge that Air India was formed to fulfill a duty or function of the state of India.
F. Mistrial Application
(1) Introduction
82This ground of appeal takes issue with a ruling by the trial judge made at the conclusion of the defence case.
83Crown counsel proposed to adduce reply evidence from their principal witness, Mr. Berini, about the authenticity of the document allegedly bearing his signature, introduced by counsel for Mr. Govindia during his cross-examination of Mr. Berini.
84Counsel for the appellants, who are also counsel on appeal, sought an order declaring a mistrial on the basis that the Crown had failed in its disclosure obligations.
85The Crown acknowledged that it had not made timely disclosure, but claimed that the delay had not prejudiced the appellants’ right to make full answer and defence. In any event, the Crown said, a mistrial was a disproportionate remedy. Exclusion of the proposed evidence was an appropriate and just remedy for any prejudice the appellants suffered.
86The trial judge declined to grant a mistrial. However, he excluded the evidence offered in reply.
(2) The Background Facts
(i) The Initial Disclosure about Mr. Berini
87Mr. Berini was the Chief Operating Officer, Senior Vice President, and President of Global Sales of Cryptometrics U.S. and Cryptometrics Canada. He reported directly to Mr. Barra, against whom he was a key Crown witness. He was the only witness against Mr. Govindia.
88Mr. Berini had been indicted jointly with the appellants under s. 3(1) of the CFPOA; however, about a year before the appellants’ trial, Crown counsel severed Mr. Berini from the joint indictment. When he testified at the appellants’ joint trial, Mr. Berini remained under indictment, but had not yet been tried.
89Prior to trial, in 2009 and again in 2011, Mr. Berini was interviewed by FBI agents. The interviews were not recorded, and thus not transcribed. The agents summarized their interviews days or weeks later. These summaries were disclosed to defence counsel.
90The Canadian investigative agency, the RCMP, did not interview Mr. Berini.
91Mr. Berini participated in witness preparation meetings with Crown counsel. About one month later, Crown counsel disclosed an 8.5-page, point-form summary of the witness preparation meetings with Mr. Berini.
92After receipt of this disclosure, defence counsel sought from the Crown further disclosure of any agreement with, or consideration provided to, Mr. Berini for his testimony at the appellants’ trial. Senior Crown counsel responded that while Mr. Berini was under subpoena as a witness at trial, through his own counsel he indicated that he wanted to meet with the Crown prior to testifying. The Crown advised defence counsel that there was no deal, written or unwritten, in place for Mr. Berini.
(ii) Mr. Berini and exhibit 11(r)
93Mr. Berini testified for the Crown for several days between January 31 and February 9, 2018. In cross-examination by counsel for Mr. Govindia, Mr. Berini was shown a document of several pages on the letterhead of EMG. The document, styled Engagement Letter for Advisory Services, dated November 8, 2007, was addressed to Mr. Barra. Mr. Berini acknowledged his signature “for and on behalf of Cryptometrics, Inc.”. Mr. Berini pointed out that the document he was shown had not been co-signed on behalf of EMG. The document became exhibit 11(r) at trial.
94Among the terms of exhibit 11(r), Cryptometrics U.S. agreed to pay EMG an “upfront retainer fee of $650,000 for one year subject to extension upon mutual agreement.” EMG agreed to assist Cryptometrics U.S. “with negotiating and securing a contract with Air India” and with business development and negotiating and securing additional business in the “India Subcontinent”.
95On five further occasions during his cross-examination of Mr. Berini, counsel for Mr. Govindia returned to exhibit 11(r). Not once did Mr. Berini contest its authenticity. He signed the document “at the approval” of Mr. Barra.
96In re-examination the following day, February 9, 2018, Mr. Berini testified that he signed but did not negotiate exhibit 11(r). The case for the Crown concluded that day.
(iii) The Directed Verdict Application
97On March 29, 2018 counsel for the appellants sought directed verdicts of acquittal on the joint count. Mr. Govindia also sought a directed verdict of acquittal on the second count of the indictment on which he alone was charged.1
98On May 7, 2018 the trial judge dismissed both applications for a directed verdict and adjourned the proceedings to May 22, 2018, at which time counsel for the appellants would elect whether they would adduce evidence in defence.
(iv) The Defence Election
99On May 22, 2018, Mr. Barra, who was first on the indictment, elected not to call evidence in defence. Mr. Govindia, who was charged in both counts of the indictment, elected to call evidence in defence. He testified as the only defence witness.
(v) Mr. Govindia’s Evidence
100Mr. Govindia testified on various days between May 22 and 29, 2018. During cross-examination, Crown counsel asked about the origins of exhibit 11(r), in particular whether the signature of Mr. Berini was an electronic signature or had been scanned onto the page. Crown counsel further suggested to Mr. Govindia that exhibit 11(r) was either a complete forgery put together by himself, or a document designed for the internal purposes of EMG to paper the transaction and the $650,000 that EMG received. Mr. Govindia said both suggestions were incorrect.
101When the defence evidence concluded, the proceedings were adjourned to set a date for their resumption.
(vi) The Proposed Reply Evidence
102When proceedings resumed in early July, Crown counsel gave notice of their intention to introduce reply evidence about the authenticity of exhibit 11(r). Counsel proposed to recall Mr. Berini to testify that his signature was an electronic signature imprinted on the document. Crown counsel said he also intended to call an RCMP officer to explain that exhibit 11(r) was not among the documents seized by the FBI.
103Crown counsel explained that disclosure about the proposed reply evidence would be forthcoming.
(vii) The Initial Disclosure: July 9, 2018
104On July 9, 2018, Crown counsel disclosed an email exchange between Mr. Berini and Crown counsel. The exchange occurred on May 16 and 17, 2018, a few days before the defence was required to elect whether to call evidence. The correspondence included Mr. Berini’s marked-up of copy of exhibit 11(r) and his comments about the legitimacy of the document.
105Defence counsel reviewed the disclosure. The contents revealed that communications beyond those disclosed had taken place. Defence counsel sought additional disclosure of all correspondence, notes, communications, and summaries of undocumented communications between the Crown, the RCMP, and Mr. Berini between February 9 and July 10, 2018.
(viii) The Second Disclosure: July 11, 2018
106On July 11, 2018, Crown counsel disclosed three further email exchanges with Mr. Berini. Two of these exchanges had also occurred before defence counsel elected whether to call a defence. In the emails, Crown counsel inquired about another exhibit – 17(f) – and sought Mr. Berini’s recollection about some meetings in New York between himself, Mr. Barra, and Mr. Govindia on November 1 and 2, 2007. Mr. Berini advised Crown counsel that he had not met Mr. Govindia prior to the recorded meeting of November 2, 2007, and had been with Mr. Barra throughout. Mr. Berini asked Crown counsel to call him about the alleged meeting on November 1, because Mr. Berini had some questions he wished to ask “to fix the event history.”
107Crown counsel also disclosed an email exchange with Mr. Berini on May 27, 2018. This occurred during Crown counsel’s cross-examination of Mr. Govindia. Crown counsel asked again about Mr. Berini’s contact with Mr. Govindia and the origins of a Memorandum of Understanding that the appellants had reviewed.
108Counsel for Mr. Govindia expressed his concern to Crown counsel about the completeness of the disclosure the Crown had provided.
(ix) The Third Disclosure: July 23, 2018
109On July 23, 2018, Crown counsel sent a DVD to defence counsel disclosing four additional emails between Mr. Berini and the Crown. Among them was an email from Mr. Berini on April 12, 2018 “[c]hecking to see if you need any assistance in review of writing that was discussed at the conclusion of the trial.” Mr. Berini indicated that, although he had only recently returned to work after surgery, he was “available to support.”
110In an email exchange on May 27 and 28, 2018, during Crown counsel’s cross-examination of Mr. Govindia, the Crown asked several more questions about the timing and location of the New York meetings. Mr. Berini answered each question.
111The third disclosure also included statements that RCMP officers had taken from Mr. Berini and senior Crown counsel. Each acknowledged having met the other after Mr. Berini’s testimony had concluded and having spoken on the phone. Neither made notes of these conversations.
(x) The Request for Further Disclosure: August 3, 2018
112Counsel for Mr. Govindia sought further disclosure from the Crown. He asked for a copy of the consent from Mr. Berini’s counsel permitting the Crown to communicate directly with Mr. Berini after he had concluded his testimony. Mr. Govindia’s counsel also asked the Crown to reconfirm that Mr. Berini had been offered no consideration for his testimony; that no communications had taken place with Mr. Berini or his counsel with respect to the disposition of the charge against him since December 16, 2017; and that the Crown still intended to proceed against Mr. Berini on the scheduled trial date. Counsel for Mr. Govindia also sought disclosure of the exact times, dates, and durations of three telephone calls between Mr. Berini and senior Crown counsel.
(xi) The Final Disclosure: August 7, 2018
113On August 7, 2018, Crown counsel disclosed an email from November 15, 2017 sent by Mr. Berini’s counsel to the Crown confirming the terms of the witness preparation meeting. Anything communicated by Mr. Berini during the meeting could not be tendered by the Crown in any future proceedings against him.
114The Crown also disclosed an email sent by Mr. Berini’s counsel to the Crown in response to its request for Mr. Berini’s contact information. Counsel provided the information sought.
(xii) The Mistrial Application
115On September 5, 2018, the appellants sought a mistrial on the ground of late disclosure of the terms on which Mr. Berini had participated in the witness preparation meeting and the email exchanges between Mr. Berini and Crown counsel prior to the defence election and Mr. Govindia’s testimony.
116On September 7, 2018, the trial judge gave brief oral reasons for dismissing the application. He advised counsel that he would provide written reasons later.
117About four months after his brief oral reasons, the trial judge provided written reasons for rejecting the appellants’ mistrial application.
118The trial judge found that the Crown had violated the appellants’ right to timely disclosure, but he was not satisfied that the appellants had established a reasonable possibility that it affected the outcome or overall fairness of the trial process, nor that it compromised the appellants’ right to make full answer and defence.
119In connection with the delayed disclosure of the terms on which Mr. Berini participated in the witness preparation meeting – that nothing he said would be tendered in evidence in proceedings against him – the trial judge considered the term to cause minimal prejudice to the appellants. After all, they had received a short, point-form summary of the interviews in December 2017 and could have used them in cross-examination of Mr. Berini had they chosen to do so. There was no reasonable prospect that their failure to cross-examine on those statements was affected by late disclosure of the terms on which the discussions were held. What is more, during the appellants’ cross-examination of Mr. Berini, they tested his collaboration with the Crown about any agreement for favourable treatment in exchange for his cooperation. Timely disclosure of the substance of the agreement would have had “a very minimal effect on the applicants’ substantial attack on Mr. Berini’s credibility.”
120The essence of the trial judge’s reasons for dismissing the mistrial application appear in the penultimate paragraph of his written decision. There, the trial judge wrote:
While the Crown has made late disclosure of the Friedman email and the additional communications with Mr. Berini after the completion of his testimony, and after the accused made their elections, the accused have not established on a balance of probabilities that there is a reasonable possibility that the Crown's late disclosure of the above communications could have affected the outcome or the overall fairness of this ongoing trial, or has affected their ability to make full answer and defence.
The remedy of preventing the Crown from calling Mr. Berini in reply, to contradict his evidence given in cross-examination as set out in the late disclosure of emails, and preventing the Crown from calling the other two witnesses it sought to call in reply, removes any prejudice to the accused. This remedy ensures the overall fairness of the trial and ensures that the accused’s ability to make full answer and defence has not been affected. The evidence adduced at the trial by the Crown remains as the accused believed it to be when they made their elections on whether or not to call evidence, and for Mr. Govindia, on how he wished to lead his evidence. This prevents any unfairness to the accused in presenting their defence.
(3) The Arguments on Appeal
121The appellants accept that the authority to declare a mistrial involves the exercise of judicial discretion. They concede that declaring a mistrial, thus terminating trial proceedings prior to verdict, is a remedy of last resort. They concede that, like other decisions involving the exercise of judicial discretion, a judge’s determination of a mistrial application is owed substantial deference on appeal.
122But, the appellants continue, this judicial discretion is neither absolute nor impervious to appellate review. Mistrial decisions attract appellate intervention when they are cumbered by misdirection or so clearly wrong as to amount to an injustice.
123In this case, the appellants say, the application for a mistrial was grounded on a breach of their right to timely disclosure of the case by the Crown. That their right to such disclosure was breached was acknowledged by the Crown at trial, as well as in this court. Further, it is beyond controversy that a breach of an accused’s right to timely disclosure can amount to a breach of their right to make full answer and defence. And this breach, in turn, may warrant declaration of a mistrial as a just and appropriate remedy under s. 24(1) of the Charter based on an infringement of s. 7.
124Here, the appellants submit, they have shown on a balance of probabilities that their right to make full answer and defence was impaired by the Crown’s failure to make timely disclosure. They have shown, they claim, that there is a reasonable possibility that the untimely disclosure affected the overall fairness of the trial process and may, as well, have affected the outcome of the trial.
125The appellants contend that the unchallenged affidavits filed in support of the mistrial application demonstrated the prejudice they suffered from the untimely disclosure. This evidence, which the trial judge was required to consider but failed to do so, established more than a reasonable possibility that the information could have been used to advance a defence or make any of several decisions which could have affected the conduct of the defence.
126Mr. Barra argues that the late disclosure affected several tactical decisions in the conduct of his defence: the decision not to testify, but to instead rely on the evidence of Mr. Govindia in absence of any challenge to the authenticity of exhibit 11(r); the cross-examination of Mr. Govindia; and the approach to the evidence of Mr. Berini, who was a critical component of the case against the appellant Mr. Barra and the single witness in the case against Mr. Govindia. This prejudice was exacerbated by the acceptance of Mr. Berini’s evidence, in part because he had testified “voluntarily”. Likewise, by the finding that Mr. Govindia had falsified exhibit 11(r), despite the exclusion of the proposed reply evidence to that effect and the uncontradicted denial by Mr. Govindia of having done so.
127In addition, the appellants say that the trial judge erred in failing to consider whether the unexplained late disclosure of communications between Crown counsel and Mr. Berini, the nature of those communications, and the Crown’s misrepresentation of the nature of the agreement with Mr. Berini warranted the remedy sought in order to safeguard the integrity of the justice system, irrespective of whether the late disclosure affected trial fairness.
128In the end, the appellants conclude, the late disclosure created such prejudice that it cannot be said with certainty that the appellants received a fair trial. Short of a mistrial, no other remedy was adequate to alleviate the compromise of trial fairness.
129The Crown concedes that the appellants’ right to timely disclosure was infringed by the delayed delivery of the materials. But the appellants are required, and have failed, to demonstrate that this default prejudiced their right to make full answer and defence. Even if some incidental prejudice ensued, the remedy sought of a mistrial was disproportionate to the infringement. Thus, a mistrial was not just and appropriate in the circumstances.
130The standard of review of decisions on applications for a mistrial, the Crown reminds us, is deferential. This is as it should be. Without an error in principle, consideration of an irrelevant factor, a plainly unreasonable conclusion, or a decision that is so clearly wrong that it amounts to an injustice, a reviewing court owes substantial deference to the trial judge’s conclusion.
131The remedy awarded here, says the Crown, was just and appropriate in the circumstances. Exclusion of the proposed reply evidence left the appellants in the same position they were in when they made their decision about the defence case in response. Exclusion deprived the Crown of any benefit from the delayed disclosure. The remedy given considered all the circumstances, including the stage of the trial at which the claim was advanced, and maintained the overall fairness of the trial process.
132The Crown contends that the only new information in the delayed disclosure was the content of Mr. Berini’s response about the authenticity of exhibit 11(r), including his annotations on a copy of the document. As for the balance of the delayed disclosure, the appellants either already had the relevant information or did not need it to make tactical decisions about their defence. That they overlooked or misapprehended what they already had and made unwarranted assumptions about the case for the Crown cannot be laid at the feet of the Crown, nor ground a claim for a mistrial.
133Nor is late disclosure of the use understanding with Mr. Berini of any assistance to the appellants who overstate its value to themselves as well as to Mr. Berini – the appellants already had sufficient material to discredit Mr. Berini, and he got no real benefit since the evidence he gave at the appellants’ trial, compelled by subpoena, would be subject to s. 13 Charter protection at his own trial. The appellants had a summary of what Mr. Berini said at the witness preparation meetings and could have cross-examined him upon any inconsistencies between it and his trial evidence to impeach his credibility and challenge the reliability of his trial evidence.
134Exhibit 11(r), the Crown points out, was introduced by counsel for Mr. Govindia during his cross-examination of Mr. Berini. This document was not part of the disclosure and was new to the Crown. The only person who knew of its provenance was Mr. Govindia. There was no reasonable basis upon which the defence could conclude that the Crown would not contest the authenticity of this document, including, but not limited to, cross-examining Mr. Govindia if he testified in his own defence.
135Delayed disclosure about the email exchange between Mr. Berini and Crown counsel after Mr. Berini had concluded his testimony had no adverse effect on Mr. Govindia’s decision to testify, his preparation to do so, nor the substance of his evidence. Knowledge of the provenance of exhibit 11(r) and the scope of Mr. Govindia’s evidence about it rested exclusively in Mr. Govindia’s control. Mr. Barra knew Mr. Govindia would testify and the general scope of his evidence. Mr. Barra’s assumption that Mr. Govindia would be believed had nothing to do with the email exchange between Mr. Berini and the Crown. Mr. Barra’s decision not to testify was informed, and would not have been different had the disclosure been timely. So too, the way he would cross-examine Mr. Govindia.
(4) Analysis
136This ground of appeal requires us to determine whether the trial judge erred in failing to declare a mistrial on the basis of delayed disclosure by the Crown. That disclosure was untimely, thus in breach of the Crown’s disclosure obligations and the appellants’ entitlement to the material, is uncontested.
137We approach our task mindful of several principles which inform our decision. First, the remedies available for a breach of the disclosure obligations of the Crown.
138The right of an accused to disclosure is but one component of the right to make full answer and defence protected by s. 7 of the Charter. No bright line rule equates a violation of the right to disclosure with a breach of the right to make full answer and defence: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 31; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 21. It follows that an accused must do more than show a breach of the right to disclosure to obtain a remedy under s. 24(1) of the Charter: Bjelland, at para. 21, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74. That something more is to establish, on a balance of probabilities, that their right to make full answer and defence has been violated: Dixon, at para. 32; Bjelland, at para. 20.
139Different principles and standards apply in determining whether disclosure should be made before conviction, and determining the effect of failure to make timely disclosure after conviction. On appeal, we must decide not only whether the undisclosed information or its delayed disclosure meets the Stinchcombe standard, but also whether the failure to make timely disclosure impaired the appellants’ right to make full answer and defence. To discharge this additional burden, an appellant must show that there is a reasonable possibility the non-disclosure or delayed disclosure affected either the outcome at trial or the overall fairness of the trial process: Dixon, at para. 33.
140This reasonable possibility must not be entirely speculative. It must be grounded on reasonably possible uses of the non-disclosed or untimely-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant because of the non-disclosure or late disclosure. If this possibility is shown to exist, then the appellants’ right to make full answer and defence was impaired: Dixon, at para. 34.
141An appellant who establishes an impairment of the right to make full answer and defence as a result of the Crown’s failure in disclosure is entitled to a remedy under s. 24(1) of the Charter: Dixon, at para. 35. The remedy must be “appropriate and just in the circumstances”: Bjelland, at para. 18. When the remedy sought on appeal is a new trial, an appellant must persuade the appellate court of the reasonable possibility that the failure affected either the outcome of the trial or the overall fairness of the trial process: Dixon, at para. 35; R. v. Jiang, 2018 ONCA 1081, 370 C.C.C. (3d) 373, at para. 4.
142A fair trial is a trial that appears fair, not only from the perspective of the accused, but also from that of the community. It is not the most advantageous trial possible from the accused’s point of view. Nor is it a perfect trial. A fair trial is a trial which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the persons charged: Bjelland, at para. 22.
143To determine whether the default has impaired the right to make full answer and defence, we must undertake a two-step analysis. First, we assess the reliability of the result at trial by examining the undisclosed information to ascertain the effect it might have had on the decision to convict. If we are satisfied that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of a conviction, we should order a new trial.
144Second, where the undisclosed information does not itself affect the reliability of the conviction rendered at trial, we must consider the effect of the non-disclosure on the overall fairness of the trial process.
145Non-disclosure of a statement that could have affected the decision of the defence about whether to call evidence may affect the fairness of the trial process, and thus impair an accused’s right to make full answer and defence: R. v. Skinner, 1998 CanLII 809 (SCC), [1998] 1 S.C.R. 298, at para. 12. See also, R. v. T. (L.A.) (1993), 1993 CanLII 3382 (ON CA), 14 O.R. (3d) 378 (C.A.), at paras. 15-16. Similarly, non-disclosure that deprived the defence of opportunities to pursue additional lines of inquiry with witnesses or to obtain additional evidence arising out of the undisclosed material may affect the overall fairness of the trial process: Dixon, at para. 50. A remedy may also be available where late disclosure compromises the integrity of the justice system: Bjelland, at para. 23.
146Second, the mistrial remedy.
147The decision whether to declare a mistrial resides within the discretion of the trial judge. The judge must take into account all the circumstances to determine whether there is a real danger that trial fairness has been compromised. It is a remedy of last resort since it terminates the trial prematurely without adjudication on the merits: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79. This discretion is not absolute. However, “its exercise should not be routinely second-guessed by the court of appeal”: Khan, at para. 79; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 39.
148Third, appellate review of decisions on remedies under s. 24(1) of the Charter.
149A trial judge’s choice of remedy under s. 24(1) of the Charter is discretionary, but that discretion must be exercised judicially. Appellate intervention is limited to cases in which the trial judge has misdirected themself, or where the decision is so clearly wrong that it amounts to an injustice: Bjelland, at para. 15, citing R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117-18.
150The final point is unrelated. It has to do with the evidentiary value of a witness’s denial of a suggestion put to them in cross-examination.
151Lawyers question witnesses. Witnesses answer lawyers’ questions. A cross-examiner may make suggestions to witnesses. Witnesses may agree with what is suggested by the cross-examiner. Or they may disagree. The evidence is the witness’s answer, not the cross-examiner’s suggestion. When the witness denies or does not accept a suggestion, the suggestion is not evidence for the trier of fact to consider. The trier of fact does not have to accept as true the witness’s denial of the cross-examiner’s suggestion. This is because the trier of fact can accept some, none, or all of any witness’s evidence. But rejection of the witness’s denial of what is suggested does not establish as true the cross-examiner’s suggestion: R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583 (C.A.), at paras. 113-14, citing R. v. Shirley (2002), 2002 CanLII 20102 (ON CA), 155 O.A.C. 210 (C.A.), at paras. 15-16.
152When we apply these principles to the circumstances of this case, we are satisfied, as the trial judge should have been, that there was a reasonable possibility that the delayed disclosure affected the overall fairness of the trial process. Indeed, it may also have affected the outcome of the trial and compromised the integrity of the justice system.
153That there was a breach of the appellant’s right to timely Stinchcombe disclosure is uncontroversial. The delayed disclosure in this case dribbled out. The Crown accepts the breach, but offers no plausible explanation for it.
154The delayed disclosure related not only to the credibility of Mr. Berini as a witness and the reliability of his evidence, but also to a fundamental component of Mr. Govindia’s defence.
155Mr. Berini was a critical witness for the Crown. His testimony related to both phases of the unlawful agreement. He was a principal component of the Crown’s case against Mr. Barra and the sole source of the case against Mr. Govindia.
156As he entered the witness box, Mr. Berini was an indicted co-conspirator. He had been severed from the indictment on which the appellants were being tried, permitting him to be called as a Crown witness at trial. He was awaiting trial. As a former co-accused, he was familiar with the case alleged against him. It is reasonable to assume that his testimony was not born out of civic duty, but the hope of obtaining an advantage in relation to his outstanding charges, a quid pro quo, as it were.
157At trial, Mr. Berini’s testimony was the subject of a Vetrovec caution. The trial judge considered it dangerous to convict on Mr. Berini’s uncorroborated evidence and looked for independent evidence confirming material parts of his testimony.
158The delayed disclosure, among other things, related to an agreement between the Crown and counsel for Mr. Berini that the Crown would not use any information Mr. Berini provided during the trial preparation interviews in any later proceedings taken against him. The delayed disclosure also had to do with the provenance of exhibit 11(r), essentially claiming that this lynchpin of Mr. Govindia’s defence was a fabrication. Crown counsel was privy to this information, but failed to disclose it prior to the appellant’s elections about calling a defence.
159In addition, the delayed disclosure revealed an ongoing relationship between Mr. Berini and senior Crown counsel. Mr. Berini was no ordinary prosecution witness. He offered ongoing assistance to the Crown on evidentiary issues and submissions. The record reveals an extraordinary relationship between Mr. Berini (a Vetrovec witness, facing outstanding charges, and central to the prosecution’s case against Mr. Govindia), and senior Crown counsel, one that was defined by direct communication to one another without any witness present or intermediary in place.
160At trial, the application for a mistrial was supported by affidavit evidence from the defence setting out in detail the prejudice occasioned by the delayed disclosure. This evidence was uncontradicted and unchallenged by cross-examination or responsive material.
161In our view, the trial judge erred in dismissing the mistrial application. His focus was too narrow, fastening exclusively on the evidentiary value of exhibit 11(r), rather than on the impact of the delayed disclosure on the fairness of the trial and whether it compromised the integrity of the justice system.
162The reasons of the trial judge betray any meaningful consideration of the uncontradicted evidence about the impact of the delayed disclosure on the conduct of the defence case.
163In determining the nature and extent of their cross-examination of the critical Crown witness Mr. Berini, the appellants were entitled to know, contrary to what they had been advised by senior Crown counsel, that there was, in fact, an agreement with Mr. Berini about the future use of what he said during preparation. While s. 13 of the Charter would protect Mr. Berini’s compelled testimony from being used against him at a subsequent trial, no similar protection would be offered for the content of the Crown interviews, to the extent they went beyond that to which was testified in court. The appellants were entitled to know that Mr. Berini’s involvement in the case with the Crown extended well beyond what he said in the witness box. No mere witness, he. A team player.
164Further, in making the critical decision about whether to testify in answer to the charge, the appellants were entitled to information that contested the legitimacy of exhibit 11(r), something that was not readily apparent from Crown counsel’s treatment of that exhibit when it was introduced during cross-examination of Mr. Berini.
165We also note that even with the exclusion of Mr. Berini’s evidence about the legitimacy of exhibit 11(r), the trial judge made an express finding that Mr. Govindia fabricated the exhibit. Although he was entitled to reject Mr. Govindia’s denial of falsification, he was not entitled to consider Mr. Govindia’s rejection of the denial as proof of the contrary – falsification.
166In the result, the appellants have persuaded us of the reasonable possibility that the delayed disclosure affected the overall fairness of the trial process. The trial judge erred in failing to declare a mistrial as the just and appropriate remedy under s. 24(1) of the Charter.
G. The Conspiracy Grounds
167In Count One of the indictment, the appellants were charged jointly (with Mr. Berini) with a breach of s. 3(1) of the CFPOA, thereby committing an offence under s. 3(2). The allegation was that they “gave, offered or agreed to give or offer a loan, reward, advantage or benefit to a foreign public official…”. Trial proceedings were conducted on the basis that the offence alleged was a conspiracy and that proof of guilt could be made through application of the co-conspirator’s exception to the hearsay rule.
168The appellants claim that two errors in the trial judge’s reasons require a new trial: first, finding that pursuit of the same object in the first and second phases of the conspiracy was sufficient to prove the existence of a general conspiracy without a further finding that the alleged conspirators in the second phase, in particular Mr. Govindia, were parties to the agreement in the first phase; and second, finding that Mr. Govindia’s lack of knowledge of the first phase was irrelevant to his liability as a party to the general agreement, not simply to the second phase.
169Both submissions assert errors in the reasons of the trial judge. Since we have decided to order a new trial on other grounds, we will restrict our reasons on this issue to what is necessary to assist the judge presiding at the new trial.
170The appellants concede that the trial judge correctly decided that the Crown alleged a general conspiracy involving two phases. They further accept that the legal analysis with which the trial judge was required to engage was the same analysis required in prosecutions for conspiracy.
(1) The Reasons of the Trial Judge
171The trial judge found a continuous conspiracy during the time period described in the indictment. That conspiracy had two phases: the first involved an agreement to pay bribes to Indian officials for down-selection approval of Cryptometrics Canada’s bid on the Air India contract and Minister Patel to approve the contract. The second phase had to do with an agreement to pay a benefit of $500,000 to Minister Patel to approve the contract.
172The trial judge concluded that there was one continuing conspiracy, not two or more separate conspiracies as alleged by the appellants. He expressed his conclusion in these terms:
The fact that Mr. Govindia did not know about the prior activities or the agreement between Mr. Barra, Mr. Berini, and Mr. Karigar to pay monies to Indian public officials to obtain the contract with Air India for Cryptometrics is not a defence for Mr. Govindia. It is not necessary for Govindia to have known that Karigar was previously engaged in attempting to bribe foreign public officials in India to obtain the approval of this same contract. His knowledge or lack thereof is irrelevant. Rather, so long as the same object of the conspiracy continued to be pursued, namely to obtain approval of the same contract between Cryptometrics and Air India by means of bribing a foreign public official, then the conspiracy continued to exist. The object of the conspiracy, as alleged by the Crown, was to bribe foreign public officials in India in order for Cryptometrics to secure the bid put out by Air India. Initially, Mr. Karigar was the individual who agreed with Barra and Berini to pay bribes to the Indian public officials. When this plan failed, Barra and Berini agreed with Govindia to pay bribes to the Indian Minister, to approve the same contract. Mr. Govindia replaced Mr. Karigar, but the object of the conspiracy remained the same.
It does not matter that Govindia did not know of Karigar’s prior involvement because the purpose and object of Barra and Berini's plan to bribe the Indian Minister to obtain the contract remained unchanged. As such, I am satisfied beyond a reasonable doubt that there was one continuous conspiracy.
(2) Analysis
173As we begin, we observe that, as a matter of criminal pleading, the count as framed does not allege conspiracy. Nor does s. 3(1) of the CFPOA, the offence-creating provision. At least, not in traditional terms such as those found in ss. 465(1), (3) & 466(1) of the Criminal Code. The language in s. 3(1) of the CFPOA appears borrowed in part from the substantive offences in ss. 121(1)(a), (e) & 123(1) of the Criminal Code.
174It may be open to question whether, as a matter of criminal pleading, the count with which we are concerned alleges the inchoate or preliminary crime of conspiracy, as opposed to a count charging joint commission of a substantive offence whose external circumstances may include an agreement. However, as a means of proof, none could gainsay the availability of the co-conspirators’ (common unlawful design) exception to the hearsay rule: R. v. Koufis, 1941 CanLII 55 (SCC), [1941] S.C.R. 481; R. v. Cloutier, 1939 CanLII 26 (SCC), [1940] S.C.R. 131.
175Reduced to its essentials, the offence under s. 3(1) of the CFPOA alleged that, to obtain the advantage of a contract to supply facial recognition software to Indian airports, the appellants agreed to give or offer bribes to foreign officials in India.
176The appellants’ initial complaint is that the trial judge wrongly concluded that pursuit of the same object in both phases of the conspiracy (agreement) was sufficient to prove the existence of a general conspiracy without a further finding that the alleged conspirators in the second phase, in particular, Mr. Govindia, were parties to the same agreement as the alleged conspirators in the first phase.
177We are not persuaded by this submission.
178In this case, there was a common agreement that continued throughout – to obtain the Air India contract for Cryptometrics Canada. There was a common means to achieve that goal. In a word, bribery.
179It is beyond controversy that the agreement may contemplate various acts. Some participants may leave, others may join – as here, Mr. Karigar and Mr. Govindia. Provided there was an overall dominant plan, as plainly there was here, changes in personnel or in methods of operation may occur without bringing the conspiracy (agreement) to an end: Papalia v. R.; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at p. 276.
180In this case, it was incumbent upon the Crown to prove, if it could, that Mr. Govindia intended to become a party to the common unlawful design to obtain the Air India contract through bribing Indian officials with knowledge of its implications: Papalia, at p. 283; R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.), at p. 563.
181It was not necessary for the Crown to prove that the parties to the agreement were in direct communication with one another, that each was aware of the identity of the other alleged co-conspirators, nor that each was aware of all of the details. Provided each, as in this case Mr. Govindia, was aware of the general nature of the common design and intended to adhere to it, liability is established: Longworth, at pp. 565-66.
182This allegation of error fails.
183Mr. Govindia also contends that the trial judge erred in failing to determine Mr. Govindia’s probable membership in the unlawful agreement on the basis of his own acts and declarations. The Crown agrees that the trial judge made no such finding.
184We agree with the Crown that this omission occasioned Mr. Govindia no prejudice. Once the trial judge had found, as he did, that at the November 2, 2007 recorded meeting in New York, Mr. Barra and Mr. Berini agreed to transfer $650,000 to Mr. Govindia, with $500,000 earmarked for Minister Patel to approve the contract, Mr. Govindia’s own words were sufficient to establish his probable membership in the conspiracy.
185We reject this claim of error.
H. Disposition
186For these reasons, the appeal is allowed, the convictions set aside, and a new trial ordered.
Released: “August 18, 2021 JMF”
“Fairburn A.C.J.O.”
“David Watt J.A.”
“B. Zarnett J.A.”
Footnotes
- Mr. Govindia had been charged with theft contrary to s. 334(a) of the Criminal Code. However, on September 12, 2018, the Crown advised that it was no longer seeking a conviction on this charge.
