An Ontario Superior Court judge has ruled that a 44-month period from the time charges were laid until the expected end of trial is not unreasonable, in part because it is a rare prosecution under the Corruption of Foreign Public Officials Act.
The dismissal of the defence Charter motion was issued in the prosecution of Robert Barra and Shailesh Govindia. They are alleged to have been part of an unsuccessful scheme by CryptoMetrics Inc. and its Canadian subsidiary to bribe Air India officials into awarding the company a lucrative biometric recognition contract. The former chief operating officer of the company was charged with the two other defendants in June 2014 and is being tried separately.
Nazir Karigar, an agent for the company, was also tried separately. His conviction and three-year prison sentence were upheld this summer by the Ontario Court of Appeal. The Karigar case was the first prosecution under the corruption statute to go to trial in Canada and not be resolved with a plea bargain.
Labrosse found this to be a factor in deciding whether the delay fit the “exceptional circumstances” exception in Jordan, which includes discrete events and complexity of a case.
“The charges are made pursuant to the Corruption of Foreign Official Act which is a rarely used statue with little case law to guide the Crown,” wrote Labrosse, in the ruling issued Oct. 6.
He noted that the Crown disclosure was in excess of 2,800 documents and 30,000 pages.
Andrew Matheson, partner at McCarthy Tétrault LLP in Toronto who specializes in white-collar defence and cross-border litigation, says expectations should not be set too low for the Crown when it comes to establishing complexity to justify delay.
“This is not a massive volume of documents, by comparison to other white-collar criminal cases. A lack of case law under the act should not be over-weighted as a factor, since it is not a long or unduly complicated statute, and persons charged under it should not be classified differently for the purposes of the right to trial within a reasonable time,” says Matheson.
The ruling is another example of where the 30-month maximum set out by the Supreme Court for cases tried in Superior Court is not necessarily set in stone, suggests Michael Dineen, a criminal defence lawyer and adjunct professor at the University of Toronto law school.
“This is being interpreted fairly generously,” says Dineen, partner at Dawe Dineen.
“When relying on the complexity of a prosecution, you would expect the Crown to be required to explain what its plan was to address the complexity and reduce delay,” Dineen adds.
In the fall of 2016, the Crown preferred a direct indictment. Labrosse concluded that in these circumstances the delay ceiling is not reduced.
“I agree with the views expressed by some courts that the Supreme Court of Canada had the opportunity in Jordan to create an exception to the 30-month ceiling in the Superior Court for cases that have not had a preliminary inquiry. This was not done and I am not inclined to do so,” wrote Labrosse.
The analysis is similar to what judges in Ontario and other provinces have concluded.
A leave application is now before the Supreme Court of Canada in a Manitoba case where its Court of Appeal found that the delay threshold is the same, regardless of whether there is a preliminary hearing or not.
This aspect of Jordan should be clarified, says Breana Vandebeek, a criminal appellate lawyer at Rusonik O’Connor Robbins Ross Gorham and Angelini LLP in Toronto.
“It is common sense that if there is a preliminary hearing it takes more time,” says Vandebeek. With a direct indictment, she says, maintaining the 30-month ceiling for Superior Court effectively gives the Crown more time to delay. “That does not seem appropriate,” she states.
In the Barra and Govindia proceeding, it was 19 months after charges were filed before they were extradited to Canada from the United States and the United Kingdom, respectively, although it was not contested.
It was nearly a year after charges were laid that the extradition requests were forwarded to the foreign states.
While the extradition period is a “discrete event” that does not normally count as part of overall delay, four of the 19 months were attributed to the Crown for “periods of inactivity,” Labrosse stated.