



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barra, 2021 ONCA 568

DATE: 20210818

DOCKET: C66607, C66609 &
C66778

Fairburn A.C.J.O., Watt and
    Zarnett JJ.A.

DOCKET:
    C66607

BETWEEN

Her
    Majesty the Queen

Appellant (Respondent)

and

Robert Thomas Barra

Respondent (Appellant)

DOCKET: C66609

AND BETWEEN

Her Majesty the Queen

Appellant (Respondent)

and

Shailesh
    Hansraj Govindia

Respondent (Appellant)

DOCKET: C66778

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).

By the Court:

A.

Overview

[1]

Robert 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.

[2]

Together, 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-conspirators exception to the hearsay rule pursuant to
R. v. Carter
,
    [1982] 1 S.C.R. 938; and

(vi)

that the trial judges reasons for judgment are
    insufficient and reflect a myriad of difficulties, including a misapprehension
    of evidence and a failure to grapple with credibility issues.

[3]

In 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.

[4]

The 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. Barras 2.5-year sentence be increased to a 4-year custodial
    term, in accordance with the Crowns submissions at the sentencing hearing
    below.

[5]

In 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

[6]

Section 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 officials 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.

[7]

A 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

[8]

Cryptometrics 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.

[9]

Mr. 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.

[10]

Mr. Govindia was the CEO of a company named
    Emerging Markets Groups Holdings Ltd. (EMG).

[11]

The 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.

[12]

The 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.

[13]

Phase 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, affd 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.

[14]

During 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.

[15]

In 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
.

[16]

However, 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.

[17]

As 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.

[18]

Mr. 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.

[19]

The trial judge rejected Mr. Govindias
    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. Berinis evidence, including aspects of his
    evidence that were touched by the Crowns late disclosure.

[20]

The 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

[21]

The 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.

[22]

At 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.

[23]

As 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. Barras return to Canada, and 19 months and 3 weeks passed in
    the case of Mr. Govindia.

[24]

Once 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

[25]

At 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 accuseds right to be tried within a reasonable time was violated.

[26]

Following 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. Barras waiver had no impact on
    the total period of delay in this case. Therefore, no deduction was made for
    Mr. Barras waiver of delay.

[27]

The 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.

[28]

Having 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.

[29]

Finally, 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

[30]

First, 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.

[31]

Second, 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.

[32]

Third, 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.

[33]

The 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

[34]

Bulhosen
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 judges deduction of four months
    from the discrete event, as proposed by the respondent.

[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 everyones interests
    that extradition be diligently pursued by the Canadian authorities. Therefore,
    we do not see an error in the application judges 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.

[37]

In any event, we find no error in failing to
    remove more time from the discrete event.

[38]

Mr. Govindia also argues on appeal that the
    application judge erred by underemphasizing the effect of what he says was the
    Crowns refusal to accept his offers to voluntarily surrender in January 2015. This
    position is at odds with the factual record.

[39]

While Mr. Govindia did propose to surrender, the
    record reveals that the Crown subsequently made inquiries about Mr. Govindias
    financial circumstances in order to make a decision on bail. Mr. Govindias
    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.

[40]

Accordingly, in our view, the application
    judges 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.

[41]

Moreover, while it is unnecessary to deal with
    the matter, we note that we agree with the application judges 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.

[42]

Therefore, 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

[43]

The 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.

[44]

Mr. 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 Judges Reasons

[45]

The trial judges reasons finding that the
    Superior Court had territorial jurisdiction are reported at 2018 ONSC 2659.

[46]

The trial judge derived the following propositions
    about territorial jurisdiction from the leading decision of
R. v. Libman
,
    [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.

[47]

The 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.

[48]

The trial judge then considered the application
    of this courts 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.

[49]

He 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

[50]

The appellants argue that they are both foreign
    nationals, and their participation in the alleged conspiracy did not take place
    in Canada. Mr. Barras 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.

[51]

The 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.

[52]

Finally, the appellants renew the argument
    rejected by the trial judge that
Karigar
is distinguishable due to Mr.
    Karigars Canadian citizenship and residence.

(iii)

Analysis

[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 Canadas
    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.

[59]

Finally, we reject the argument that the
    decision in
Karigar
was distinguishable. We agree with the reasons of
    the trial judge in this regard.

[60]

Accordingly, we reject this ground of appeal.

(3)

The Principle of Specialty

(i)

The Context

[61]

Canada requested Mr. Govindias 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.

[62]

The Westminster Magistrates Court issued a
    warrant for Mr. Govindias arrest for two offences, one of which was:

Between the 1
st
June 2005, and 1
st
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

[63]

On 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.

[64]

On November 16, 2016, a direct indictment was
    preferred. Count 1 read as it did in the Information at the time of Canadas
    application for extradition from the United Kingdom, set out at para. 61 of
    these reasons.

[65]

At 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 Judges Reasons

[66]

The trial judges 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.

[67]

The 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. Govindias Arguments

[68]

Mr. 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

[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 Canadas request for Govindias 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 accuseds 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.

(4)

The
Mens Rea
Requirement for a
CFPOA
Offence

(i)

The Trial Judges Reasons

[73]

The 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.

[74]

The trial judge held that s. 3(1) of the
CFPOA
,
    like bribery, is a specific intent offence. He relied on
R. v. Smith
(1921), 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.

[75]

The 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 Crowns Arguments

[76]

The 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.

[77]

The 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

[78]

In our view, the trial judge did not err in his
    conclusion on
mens rea
.

[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. 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

[82]

This ground of appeal takes issue with a ruling
    by the trial judge made at the conclusion of the defence case.

[83]

Crown 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.

[84]

Counsel 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.

[85]

The 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.

[86]

The 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

[87]

Mr. 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.

[88]

Mr. 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.

[89]

Prior 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.

[90]

The Canadian investigative agency, the RCMP, did
    not interview Mr. Berini.

[91]

Mr. 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.

[92]

After 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)

[93]

Mr. 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.

[94]

Among 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.

[95]

On 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.

[96]

In 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

[97]

On 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]


[98]

On 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

[99]

On 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. Govindias Evidence

[100]

Mr. 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.

[101]

When the defence evidence concluded, the proceedings were adjourned
    to set a date for their resumption.

(vi)

The Proposed Reply Evidence

[102]

When 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.

[103]

Crown counsel explained that disclosure about the proposed reply
    evidence would be forthcoming.

(vii)

The Initial Disclosure: July 9, 2018

[104]

On 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. Berinis marked-up of copy of exhibit 11(r) and his
    comments about the legitimacy of the document.

[105]

Defence 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

[106]

On 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. Berinis 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.

[107]

Crown counsel also disclosed an email exchange with Mr. Berini on
    May 27, 2018. This occurred during Crown counsels cross-examination of Mr.
    Govindia. Crown counsel asked again about Mr. Berinis contact with Mr.
    Govindia and the origins of a Memorandum of Understanding that the appellants
    had reviewed.

[108]

Counsel 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

[109]

On 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.

[110]

In an email exchange on May 27 and 28, 2018, during Crown counsels
    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.

[111]

The 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. Berinis testimony had concluded and having spoken on the
    phone. Neither made notes of these conversations.

(x)

The Request for Further Disclosure: August 3,
    2018

[112]

Counsel for Mr. Govindia sought further disclosure from the Crown.
    He asked for a copy of the consent from Mr. Berinis counsel permitting the
    Crown to communicate directly with Mr. Berini after he had concluded his
    testimony. Mr. Govindias 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

[113]

On August 7, 2018, Crown counsel disclosed an email from November
    15, 2017 sent by Mr. Berinis 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.

[114]

The Crown also disclosed an email sent by Mr. Berinis counsel to
    the Crown in response to its request for Mr. Berinis contact information.
    Counsel provided the information sought.

(xii)

The Mistrial Application

[115]

On 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. Govindias testimony.

[116]

On September 7, 2018, the trial judge gave brief oral reasons for
    dismissing the application. He advised counsel that he would provide written
    reasons later.

[117]

About four months after his brief oral reasons, the trial judge
    provided written reasons for rejecting the appellants mistrial application.

[118]

The 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.

[119]

In 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. Berinis
    credibility.

[120]

The essence of the trial judges 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 accuseds 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

[121]

The 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 judges determination of a mistrial application is owed
    substantial deference on appeal.

[122]

But, 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.

[123]

In 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 accuseds 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.

[124]

Here, the appellants submit, they have shown on a balance of
    probabilities that their right to make full answer and defence was impaired by
    the Crowns 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.

[125]

The 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.

[126]

Mr. 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. Berinis
    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.

[127]

In 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 Crowns 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.

[128]

In 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.

[129]

The 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.

[130]

The 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 judges
    conclusion.

[131]

The 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.

[132]

The Crown contends that the only new information in the delayed
    disclosure was the content of Mr. Berinis 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.

[133]

Nor 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.

[134]

Exhibit 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.

[135]

Delayed disclosure about the email exchange between Mr. Berini and
    Crown counsel after Mr. Berini had concluded his testimony had no adverse
    effect on Mr. Govindias 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. Govindias evidence about it rested exclusively in Mr. Govindias
    control. Mr. Barra knew Mr. Govindia would testify and the general scope of his
    evidence. Mr. Barras assumption that Mr. Govindia would be believed had
    nothing to do with the email exchange between Mr. Berini and the Crown. Mr.
    Barras 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

[136]

This 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 Crowns
    disclosure obligations and the appellants entitlement to the material, is
    uncontested.

[137]

We 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.

[138]

The 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] 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. OConnor
, [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.

[139]

Different 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.

[140]

This 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.

[141]

An appellant who establishes an impairment of the right to make full
    answer and defence as a result of the Crowns 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.

[142]

A 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 accuseds 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.

[143]

To 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.

[144]

Second, 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.

[145]

Non-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 accuseds right to make full answer and
    defence:
R. v. Skinner
, [1998] 1 S.C.R. 298, at para. 12. See also,
R.
    v. T. (L.A.)
(1993), 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.

[146]

Second, the mistrial remedy.

[147]

The 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.

[148]

Third, appellate review of decisions on remedies under s. 24(1) of
    the
Charter
.

[149]

A trial judges 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.

[150]

The final point is unrelated. It has to do with the evidentiary
    value of a witnesss denial of a suggestion put to them in cross-examination.

[151]

Lawyers 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
    witnesss answer, not the cross-examiners 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
    witnesss denial of the cross-examiners suggestion. This is because the trier
    of fact can accept some, none, or all of any witnesss evidence. But rejection
    of the witnesss denial of what is suggested does not establish as true the
    cross-examiners suggestion:
R. v. Zebedee
(2006), 81 O.R. (3d) 583
    (C.A.), at paras. 113-14, citing
R. v. Shirley

(2002)
,
155 O.A.C. 210 (C.A.), at paras. 15-16.

[152]

When 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.

[153]

That there was a breach of the appellants 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.

[154]

The 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. Govindias defence.

[155]

Mr. 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 Crowns case against Mr. Barra and the sole source of the case against
    Mr. Govindia.

[156]

As 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.

[157]

At trial, Mr. Berinis testimony was the subject of a
Vetrovec
caution. The trial judge considered it dangerous to convict on Mr. Berinis
    uncorroborated evidence and looked for independent evidence confirming material
    parts of his testimony.

[158]

The 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.
    Govindias defence was a fabrication. Crown counsel was privy to this
    information, but failed to disclose it prior to the appellants elections about
    calling a defence.

[159]

In 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 prosecutions 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.

[160]

At 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.

[161]

In 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.

[162]

The 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
.

[163]

In 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. Berinis 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. Berinis involvement in
    the case with the Crown extended well beyond what he said in the witness box.
    No mere witness, he. A team player.

[164]

Further, 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 counsels treatment of that exhibit when it was introduced
    during cross-examination of Mr. Berini.

[165]

We also note that even with the exclusion of Mr. Berinis 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. Govindias denial of falsification, he was not entitled to consider Mr.
    Govindias rejection of the denial as proof of the contrary  falsification.

[166]

In 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

[167]

In 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-conspirators exception to the hearsay rule.

[168]

The appellants claim that two errors in the trial judges 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. Govindias 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.

[169]

Both 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.

[170]

The 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

[171]

The 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 Canadas 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.

[172]

The 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 Karigars 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

[173]

As 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
.

[174]

It 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] S.C.R. 481;
R. v. Cloutier
, [1940] S.C.R. 131.

[175]

Reduced 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.

[176]

The 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.

[177]

We are not persuaded by this submission.

[178]

In 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.

[179]

It 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] 2 S.C.R. 256, at p. 276.

[180]

In 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), 67 C.C.C. (2d) 554 (Ont. C.A.), at p. 563.

[181]

It 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.

[182]

This allegation of error fails.

[183]

Mr. Govindia also contends that the trial judge erred in failing to
    determine Mr. Govindias 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.

[184]

We 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. Govindias own words were sufficient to establish
    his probable membership in the conspiracy.

[185]

We reject this claim of error.

H.

Disposition

[186]

For 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.





[1]

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.


