The Ontario Court of Appeal recently rendered a decision in the long-running case of R. v. Barra, a prosecution under the Corruption of Foreign Public Officials Act involving several people accused (and, in one earlier case, Karigar, convicted) of bribing various public officials in India. This particular decision sent the matter back for a new trial due to non-disclosure of evidence by the Crown. However, the Court of Appeal made various other comments and findings on the transnational elements of the case which are of interest.
When they were charged the two accused were living in the US and the UK, respectively, and had to be extradited. They argued that they were denied their right to trial within a reasonable period of time (under s. 11(b) of the Canadian Charter of Rights and Freedoms and the Supreme Court of Canada's decision in R. v. Jordan), in part because of unnecessary delays on the part of the Crown in obtaining extradition. However, the trial judge had held that 4 months of the extradition delay was attributable to the Crown's lack of diligence, and Fairburn JA for the Court held that this finding had been reasonable:
[35] Under 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.
[36] At 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.
This latter comment is a bit disturbing, as it suggests that it is possible for the Crown to be relieved of its obligation to pursue extradition diligently. It is not the accused's job to help the Crown prosecute him by speeding up the process of how he is taken into custody. There is some comfort, however, that in this case the Court ratified the trial judge's decision to attribute 4 months of extradition delay to the Crown.
Parenthetically, Laura Ellyson and I have written on the topic of how extradition figures into trial delays in Canada, and how Canada's law factors into state practice under international human right law. You can find that article here.
The accused also argued that the trial judge had erred in ruling that Canada had territorial jurisdiction over the offences, given that they were both foreign nationals (unlike their co-conspirator, Karigar, who had been convicted earlier) and their participation in the conspiracy did not take place in Canada. They further argued that the judge had conflated their personal activities with that of the company which was supposed to benefit from the scheme, Cryptometrics Canada. Justice Fairburn rejected these arguments and applied the SCC's decision in Libman to provide a jurisdictional analysis that reflects the international jurisdictional principle of qualified territorial jurisdiction (see Chapters 2 and 8 of our book):
[53] The 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.
[54] The 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.
[55] We 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.
[56] The 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.
[57] The 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.
[58] Holding 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.
The accused Govindia made a technical argument on the principle of specialty in extradition (the requirement that an accused only be tried for the offence for which he was extradited; see Chapter 9 of our book). The original indictment in Canada had alleged that he conspired in Canada, the US and India, but the UK order of extradition simply worded it as "in Canada." He argued that the Canadian indictment should have been read down to limit the charge to conspiracy in Canada, as that was the basis of the extradition order. Justice Fairburn upheld the trial judge's rejection of this argument:
[69] In 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.
[70] The 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…”.
[71] Mr. 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.
[72] Finally, 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.
Finally, the trial judge found that the Crown had not proven that Barra had the necessary mens rea for the offence of bribery. The offence was a "specific intent offence," and the Crown had not met its burden because it did not prove that Barra knew that the individuals in question were "foreign public officials." While it would not affect the outcome, the Crown asked the Court to revisit this finding, arguing that whether the individuals met the definition of "foreign public officials" in the Act was a question of law, and an erroneous view of law is not a defence. Justice Fairburn upheld the trial judge's finding and spoke to the mens rea requirement for the offence:
[79] In 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)
[80] In 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.
[81] The 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....
While it is a picky point, my own view is that the offence is not one of "specific intent," which usually means that the accused intends a particular outcome to result from the offence. Rather, there is simply an extra knowledge element vis-a-vis the person(s) whom the accused is alleged of trying to bribe, which the Crown must prove on top of the other elements.
In any event, this is a decision unusually replete with transnational criminal law issues. It has a "purely" transnational criminal law aspect, in that the Act implements Canada's obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The OECD's review mechanism regarding compliance with the Convention has not always been kind to Canada, and the government is no doubt frustrated that this case is going back for a new trial (barring an SCC appeal). But this case also has an interesting qualified territorial jurisdiction angle and two different extradition issues -- something for everyone.
Interesting and important as well.
Speaking of territorial jurisdiction, one can add another interesting factual angel here:
I quote from the lower court:
" On May 15, 2007, Ms. Dube, the Trade Commissioner for Canada in Mumbai, testified that she met with Karigar and Berini. During the meeting Mr. Karigar stated that Cryptometrics had paid a bribe to Praful Patel, the Minister of Civil Aviation in India, through an agent in order to clear the process and obtain the Air India contract. Karigar confirmed that the bribe money had been received by Patel. Ms. Dube testified that she was shocked and advised them that they could be prosecuted for this action."
So, there was that meeting, with an official Canadian representative in Mumbai. She was shocked. They had told her about their actions and intents. That can represent certain legal basis, for forming nexus between the Canadian sovereign, and the criminal actions or conspiracy one may argue.
Thanks
Posted by: El roam | 27 August 2021 at 07:10 PM