Law Times

Law Times • OcTOber 23, 2017 Page 3 www.lawtimesnews.com Judge rules 44-month delay in corruption trial is all right BY SHANNON KARI For Law Times A n Ontario Superior Court judge has ruled that a 44-month pe- riod from the time charges were laid until the ex- pected end of trial is not un- reasonable, in part because it is a rare prosecution under the Corruption of Foreign Public Officials Act. Justice Marc Labrosse in R. v. Barra and Govindia also con- cluded that 30 months is still the Jordan threshold in Superior Court when there is a preferred indictment and no preliminary hearing. 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 Ca- nadian subsidiary to bribe Air India officials into awarding the company a lucrative biomet- ric 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 pros- ecution 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 cir- cumstances" exception in Jor- dan, which includes discrete events and complexity of a case. "The charges are made pur- suant 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 dis- closure was in excess of 2,800 documents and 30,000 pages. Andrew Matheson, part- ner at McCarthy Tétrault LLP in Toronto who specializes in white-collar defence and cross- border litigation, says expecta- tions should not be set too low for the Crown when it comes to establishing complexity to jus- tify delay. "This is not a massive volume of documents, by comparison to other white-collar criminal cas- es. 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 exam- ple of where the 30-month max- imum 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 Univer- sity of Toronto law school. "This is being interpreted fairly generously," says Dineen, partner at Dawe Dineen. "When relying on the com- plexity 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 ex- pressed 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 Superi- or Court for cases that have not had a preliminary inquiry. This was not done and I am not in- clined to do so," wrote Labrosse. The analysis is similar to what judges in Ontario and oth- er provinces have concluded. A leave application is now be- fore the Supreme Court of Can- ada 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 Vande- beek, a criminal appellate law- yer at Rusonik O'Connor Rob- bins Ross Gorham and Angelini LLP in Toronto. "It is common sense that if there is a preliminary hear- ing it takes more time," says Vandebeek. With a direct in- dictment, she says, maintain- ing the 30-month ceiling for Superior Court effectively gives the Crown more time to delay. "That does not seem appropri- ate," 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 extra- dition requests were forwarded to the foreign states. While the extradition period is a "discrete event" that does not normally count as part of over- all delay, four of the 19 months were attributed to the Crown for "periods of inactivity," Labrosse stated. LT NEWS Andrew Matheson says expectations should not be set too low for the Crown when it comes to establishing complexity to justify delay. 9 TH ANNUAL ABORIGINAL LAW COURSE HIGHLIGHTS • Aboriginal and Consultation Case Law Review, including the Recent Supreme Court of Canada Decisions of Clyde River and Chippewas of the Thames dealing with Regulatory Boards and Consultation • Discussion on the Federal Governments "Principles Respecting the Government of Canada's Relationship with Indigenous Peoples" Boards and Consultation • Best Practices in Consultation • Best Practices for Implementing Agreements with Aboriginal Groups • Urban Indigenous Spaces – Toronto Indigenous District • UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Impact on Resource Developments • Update on Northwest Territories TORONTO • WEBINAR | NOVEMBER 30, 2017 LEXPERT EXECUTIVE PROFESSIONAL DEVELOPMENT PROGRAM Register online at www.lexpert.ca/Aboriginal-Law For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: lexpert.ca/legal-programs • Email: lexpert.questions@thomsonreuters.com DATE & LOCATION Toronto: November 30, 2017 Vantage Venues 150 King St West, 27th Floor, Toronto, ON M5H 1J9 COURSE LEADER Thomas Isaac Cassels Brock & Blackwell LLP USE PROMO CODE EARLYBIRD2017 & SAVE OVER $300* EARLY BIRD ENDS OCT. 25 Untitled-4 1 2017-10-18 10:19 AM It is common sense that if there is a preliminary hearing it takes more time. Breana Vandebeek

• Cover