Court File and Parties
Court File No.: 16-20006 Date: 2019-01-09 Ontario Superior Court of Justice
Between: HER MAJESTY THE QUEEN Respondent – and – Robert Thomas Barra and Shailesh Hansraj Govindia Applicants
Counsel: Emma Beauchamp and Allyson Ratsoy, for the Crown Seth P. Weinstein and Naomi M. Lutes for the Applicant, Mr. Robert Barra Graeme A. Hamilton for the Applicant, Mr. Shailesh Hansraj Govindia.
Heard: September 5 and 7, 2018
Reasons for Decision on Mistrial Application
Before
R. SMITH J
Overview
[1] The decision was given orally on September 7, 2018 with reasons to follow. These are the reasons.
[2] The accused have brought an application for a mistrial pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”), on the basis that they have been materially prejudiced by the Crown’s late disclosure of several pieces of information. The late disclosure concerns the following two categories of information:
(a) The first is the late disclosure of the November 15, 2017 email from Mr. Berini’s counsel confirming that the Crown had agreed that it could not use any statements made by Mr. Berini during a witness preparation meeting against him in his upcoming criminal trial; and
(b) The second category consists of several email exchanges between Mr. Berini and the Crown. These emails were exchanged after Mr. Berini had completed his testimony, and before Mr. Barra elected not to call evidence and Mr. Govindia had elected to testify. The following subjects are discussed in the emails:
(i) Mr. Berini questioned whether he had actually signed Exhibit 11(R) (a consulting engagement agreement between Mr. Barra and EMG), contrary to what he had agreed to when this document was presented to him during cross-examination by counsel for Mr. Govindia. Mr. Berini also made certain annotations on a copy of Exhibit 11(R) which was sent to the Crown;
(ii) Mr. Berini also questioned whether he had ever received a copy of Exhibit 11(R). After he had completed testifying, Mr. Berini told the Crown that he did not recognize Exhibit 11(R), it was not in Cryptometrics files, and it did not reflect the agreement Mr. Govindia made with Mr. Barra to bribe the Indian Minister, Mr. Patel, to obtain the contract.
[3] The applicants submit that the late disclosure of the above information by the Crown has had a prejudicial effect on their ability to challenge Mr. Berini’s credibility by cross-examining him on the evidence in question, on their ability to present a full defence, and on their tactical decision of deciding whether or not to call evidence.
[4] The Crown agrees that the statements made by Mr. Berini to the Crown after the completion of his testimony should have been disclosed earlier, but submit that the accused’s ability to make full answer and defence has not been materially prejudiced and that declaring a mistrial is a disproportionate remedy. The Crown submits that any prejudice, with regard to the late disclosure of email exchanges, after Mr. Berini completed his testimony, can be remedied by denying the Crown’s request to re-call Mr. Berini in reply, which leaves Mr. Berini’s evidence during cross-examination and in reply, agreeing to having signed Exhibit 11(R), uncontradicted.
[5] The Crown further submits that its failure to disclose its agreement not to use any statements made by Mr. Berini during the witness preparation meeting against him in any future proceeding, did not materially prejudice either accused because the situation is similar to and consistent with the s. 13 Charter protection accorded to Mr. Berini when he testified at this trial. The Crown mistakenly failed to disclose the Friedman email (Mr. Friedman is Mr. Berini’s defence lawyer) because it did not recognize that any form of “consideration” was being given to Mr. Berini because his testimony in court would be protected by s. 13 of the Charter in any event.
Analysis
[6] In R v. Stinchcombe, [1991] 3 S.C.R. 326 at p. 333, the Supreme Court stated as follows:
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
[7] The Supreme Court further held that the Crown’s duty of disclosure to the Defence is ongoing (Stinchcombe at p. 343).
[8] In R. v. Dixon, [1998] 1 S.C.R. 244, the Supreme Court set out the starting point for any analysis of late disclosure and any prejudicial effect this may have on the right to make full answer and defence. Cory, J set out the following principles:
(1) The right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation (at para. 31).
(2) In all cases where a person claims that a Charter right has been violated, he or she must prove on a balance of probabilities that the violation occurred. Before granting any sort of remedy under s. 24(1) it must be found that it was more likely than not that the Charter right in question was infringed or denied (at para. 32).
(3) Where the court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden to establish a violation of his Charter right to disclosure. The appropriate remedy for such a violation at trial, will generally be an order for production or an adjournment (at para. 33).
(4) The accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose (at para. 33).
(5) This burden is discharged where an accused demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process (at para. 34).
(6) The reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosed evidence. If this possibility is shown to exist, then the right to make full answer and defence was impaired (at para. 34).
(7) Once an accused establishes impairment of the right to make full answer and defence as a result of the Crown’s failure to disclose, he or she is entitled to a remedy under s. 24(1). At this stage, the degree of impairment or prejudice to the accused’s rights must be assessed and considered in relation to the remedy sought (at para. 35).
[9] As a result of the Crown’s admission that the disclosure should have been made earlier, the accused have met their burden to establish a violation of their Charter right to disclosure. Following para. 33 of the Dixon decision, the accused also bear the additional burden of demonstrating on a balance of probabilities that their right to make full answer and defence was impaired as a result of the Crown’s failure to disclose.
[10] The accuseds’ burden is discharged when they demonstrate that there was a reasonable possibility that affected the outcome or the overall fairness of the trial process. Under this test the reasonable possibility must not be entirely speculative.
Remedy
[11] In R. v. Jama, 2013 ONSC 307, [2013] O.J. No 6453, the Crown was late in disclosing cell phone records at a preliminary inquiry. At para. 73 the court stated as follows:
The accused has failed to demonstrate that this is one of those exceptional and extreme situations justifying the imposition of a stay of proceedings. Permitting the Crown to continue with the prosecution of this case, while excluding the accused’s preliminary inquiry evidence as to his asserted alibi for the October 1, 2009 robberies, notwithstanding the late disclosure of the accused’s cell phone records, would not cause irreparable prejudice to the accused or the integrity of the judicial system. In my view, the accused’s right to make full answer and defence at trial is fully and adequately protected by the exclusion of the accused’s preliminary inquiry testimony in relation to his activities and whereabouts prior to his arrest on October 1, 2009.
[12] In many cases of late disclosure, an order to disclose and an adjournment will be a sufficient remedy. This was recognized by L’Heureux-Dube J. in R. v. O’Connor, [1995] 4 S.C.R. 411 where, at para. 76, she stated as follows:
[W]here the adverse impact upon the accused’s ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate.
[13] In O’Connor, the Supreme Court stated that the remedies available under s. 24(1) of the Charter can be viewed as a spectrum, starting with an adjournment and ending with the ultimate remedy—a stay of proceedings. At para. 77 of O’Connor, the Supreme Court acknowledged that the appropriate remedy may vary in the circumstances and that
…it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted. [Emphasis in original].
[14] In R. v. Bjelland, [2009] 2 S.C.R. 651, the Supreme Court reinforced the principle that if prejudice to the accused’s rights can be remedied through a disclosure order and an adjournment then a more drastic remedy, such as the exclusion of evidence, is not warranted.
[15] In fashioning a remedy, the court must consider the fair trial interest not only of the applicants, but of society more broadly. At para. 22 of Bjelland, Rothstein J. quoted McLachlin J. (as she then was), where she held that in R. v. Harrer as follows:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis in original].
[16] In this case, it is not possible to order disclosure and grant an adjournment, even though this trial is not completed. The Crown has closed its case, subject only to the possibility of calling reply evidence, which it seeks to do. Mr. Barra has already elected not to testify and Mr. Govindia has testified in this trial in his defence.
[17] At this late point in the trial, one of the possible remedies is to recall Mr. Berini and allow him to be further cross-examined on the newly disclosed evidence. This has the disadvantage of occurring after both accused have made their election on whether to call evidence. In addition, this would allow Mr. Berini to change his evidence after the completion of his testimony, where he agreed in cross-examination and in re-examination that he had signed Exhibit 11(R). If the Crown were permitted to recall Mr. Berini, his new evidence would imply that Mr. Govindia had forged Mr. Berini’s signature on Exhibit 11(R). This evidence would be highly prejudicial to the accused.
[18] The accused argue that the Crown should have asked the court to allow it to recall Mr. Berini as a witness after he had testified, been cross-examined and been re-examined, but before the accused made their election whether or not to testify. There is a strong possibility that the accused would have vigorously opposed allowing the Crown to recall Mr. Berini to give different evidence from what he had given during cross-examination and re-examination casting doubt on having signed Exhibit 11(R) and implying Mr. Govindia forged Exhibit 11(R). The accused were content with Mr. Berini’s evidence in cross-examination agreeing that he had signed Exhibit 11(R) because his evidence, if left unchanged was favourable to Mr. Govindia and Mr. Barra.
[19] The unique aspect of this case is that Mr. Berini was presented with Exhibit 11(R) by the Defence during his cross-examination. The Defence chose to introduce Exhibit 11(R) through Mr. Berini in cross-examination. Mr. Berini agreed that he had signed the document during cross-examination. If the Crown is prevented from recalling Mr. Berini in reply to change his evidence the accused will be in the best possible position as this evidence remains uncontradicted.
[20] The accused also submit that the Crown used Mr. Berini’s communications after he had testified to cross-examine Mr. Govindia. The Crown suggested to Mr. Govindia that either he forged Exhibit 11(R) or he prepared the document for internal reasons. The Crown’s suggestions were denied by Mr. Govindia and his denials remain uncontradicted evidence. The Crown did not obtain any admission from Mr. Govindia in this regard during its cross-examination and as such there has not been any prejudice to the accused.
[21] I do not agree with the Crown’s submission that Mr. Govindia’s evidence in cross-examination should be struck from the record. This approach is not an option as the evidence consists of Mr. Govindia denying that Exhibit 11(R) was a forgery. This evidence is favourable to Mr. Govindia; it has not been contradicted and therefore cannot be struck. The accuseds’ submissions that the Crown would have been permitted to recall Mr. Berini, after his evidence was completed, to provide changed evidence about Exhibit 11(R) amounts to speculation.
[22] The other emails between Mr. Berini and the Crown concern the timing of a meal he had with Mr. Govindia. Mr. Berini’s communications to the Crown about the timing of a meal were similar to Mr. Berini’s evidence at trial. Mr. Berini did not recall the meal but agreed with the Defence that it was possible. As a result there is no reasonable possibility that the late disclosure of these conversations had any material prejudice to the accused’s ability to make full answer and defence or to the overall fairness or outcome of the trial.
[23] Denying the Crown’s request to recall Mr. Berini to testify in reply about the exchange of emails he had with the Crown, changing his evidence after he had completed his testimony, preserves the overall fairness of the trial and is an appropriate remedy. The Crown is prevented from calling evidence in reply which would contradict Mr. Berini’s previous evidence and from presenting evidence which would support an inference that Mr. Govindia falsified the document filed as Exhibit 11(R). This is a judge alone trial and the late disclosure of the communications to the Crown (and subsequently to the Defence), after Mr. Berini had completed his testimony, are not evidence in this trial, and shall be disregarded.
[24] The accused have not satisfied me on a balance of probabilities that there is a reasonable possibility that the late disclosure of Mr. Berini’s communications to the Crown questioning and essentially denying that he signed Exhibit 11(R), as he agreed during cross-examination and in re-examination, affected the outcome or fairness of the trial for them or affected the accused’s ability to make full answer and defence.
The Crown’s late disclosure of its agreement not to use statements made by Mr. Berini during the preparation meeting against him in his trial
[25] The Crown’s failure to disclose its agreement with Mr. Berini’s defence counsel that it would not use any statements made by Mr. Berini in the preparation meeting during his own trial, has had minimal prejudicial effect on the applicants. The accused have not convinced me that there is a reasonable possibility that the non-disclosure of this agreement has or could have affected overall trial fairness or impacted their ability to make full answer and defence for the following reasons:
(1) All of the statements Mr. Berini made during the preparation meeting were fully disclosed to the applicants in December 2017 and were available to be used by the accused in their cross-examination of Mr. Berini during the trial as they wished;
(2) There is no reasonable possibility that the accused’s decision not to cross-examine Mr. Berini on statements he made in the preparation meeting was not affected by the failure of the Crown to disclose that it had agreed that his statements could not be used against him in his subsequent trial. This situation is similar to Mr. Berini’s testimony in trial which is protected by s. 13 of the Charter;
(3) The applicants tested Mr. Berini’s credibility with respect to his collaboration with the Crown during their cross-examination on whether there was any agreement that he would receive more favourable treatment as a result of cooperating with the Crown. If the agreement had been disclosed earlier, there would have been a very minimal effect on the applicants’ substantial attack on Mr. Berini’s credibility.
Disposition
[26] 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.
[27] For the above reasons, the accuseds’ application for a mistrial is dismissed and the Crown’s application to call further reply evidence including to recall Mr. Berini to give different evidence is dismissed.
R. Smith, J Date: 2019/01/09
Additional Case Information
COURT FILE NO.: 16-20006 DATE: 20190109 SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN AND ROBERT THOMAS BARRA AND SHAILESH HANSRAJ GOVINDIA BEFORE: Justice R. Smith COUNSEL: Emma Beauchamp and Allyson Ratsoy, counsel for Seth P. Weinstein and Naomi M. Lutes for Robert Barra, the Applicant Graeme A. Hamilton, for Shailesh Hansraj Govindia, the Applicant the Crown HEARD: REASONS FOR DECISION ON MISTRIAL APPLICATION Justice Robert Smith
