What’s in a bribe? Ontario Court of Appeal provides new guidance on mens rea under Corruption of Foreign Public Officials Act

Canada Publication September 15, 2021

The Ontario Court of Appeal’s decision in R v Barra1  is an appeal from the 2019 convictions of two former employees implicated in the Cryptometrics foreign bribery case. On appeal, the court overturned the convictions, ordered a new trial, and clarified the mens rea for bribery under the Corruption of Foreign Public Officials Act (the CFPOA).


Background 

In 2019, Robert Barra and Shailesh Govindia were convicted of bribery contrary to section 3(1)(b) of the CFPOA. Mr. Barra was the co-CEO of Cryptometrics US, an American biometrics company seeking to supply facial recognition software to Air India via its Canadian subsidiary. Mr. Govindia was the CEO of Emerging Markets Group Holdings Ltd., a third-party consulting company that assisted Cryptometrics in the sale. Mr. Barra and several of his associates were alleged to have bribed Air India officials and the Indian Minister of Civil Aviation, in an attempt to secure the contract. Mr. Govindia was alleged to have participated in one of the bribes. 

We previously reported on the Ontario Court of Appeal’s decision to uphold Mr. Karigar’s conviction, as part of the same alleged bribery scheme.

The Ontario Court of Appeal

The Ontario Court of Appeal’s decision is significant for two key reasons: 

  • First, this decision is the first comment on mistrials as a remedy to late disclosure in CFPOA prosecutions.
  • Second, the court provided clarification on mens rea for bribery under the CFPOA.

When is a mistrial appropriate following late or non-disclosure?

Mr. Barra and Mr. Govindia appealed their convictions on a number of grounds, including that the trial judge erred by failing to declare a mistrial in the wake of late Crown disclosure. After closing of the defence’s evidence, the Crown gave notice of its intent to call former Cryptometrics executive Dario Berini to introduce reply evidence. The Crown then disclosed, in four separate batches, communications between the Crown and Mr. Berini that took place before Mr. Barra and Mr. Govindia were required to elect whether they would call evidence in defence. This disclosure “dribbled out” and only became available to the defence following specific requests. The Crown did not dispute that the appellants’ right to timely disclosure had been violated, but denied that the violation impaired their ability to make a full answer and defence.

The court held that an accused must establish, on a balance of probabilities, that the right to make full answer and defence was violated. Further, for a mistrial to be an appropriate remedy, the accused must show a “reasonable possibility” that the non-disclosure affected the outcome or overall fairness of the trial. For example, the accused could argue the untimely or non-disclosed Crown evidence foreclosed “reasonably possible” defence strategies or “reasonably possible” avenues of investigation. 

The court found that the delayed disclosure revealed an “extraordinary” ongoing relationship between Mr. Berini and senior Crown counsel, such that Mr. Berini was “no ordinary prosecution witness” but rather a “team player.” The Crown’s failure to provide timely disclosure of Mr. Berini’s involvement in the case satisfied the court that there was a reasonable possibility the late disclosure impacted the appellants’ strategic decisions at trial – including whether they would lead evidence in response – and thus compromised trial fairness. The court allowed the appeal on this basis, and ordered a new trial. 

What is the mens rea for bribery under the CFPOA?

At trial, the trial judge had found that Mr. Barra did not know Air India was established to perform a function on behalf of the state of India, and he therefore lacked the necessary mens rea to bribe certain Air India officials. 

The Crown requested that the Court of Appeal clarify this issue because in its view, the accused need not be aware that the recipient of a bribe was a “foreign public official,” as defined in the CFPOA; the Crown argued this would permit wrongdoers to use an erroneous view of the law as a defence. 

The court disagreed with the Crown’s argument and clarified that an accused must have knowledge of the “official” character of the person to whom the bribe is offered. Thus, to form the necessary mens rea for bribery under the CFPOA, the accused must know that the individual being offered the bribe has the characteristics described in the CFPOA definition of “foreign public official,” namely: 

  • a person who holds a legislative, administrative or judicial position of a foreign state; 
  • a person who performs public duties or functions for a foreign state, including a person employed by a board, commission, corporation or other body established to perform a function on behalf of a foreign state; or 
  • 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. 

If the person offered the bribe is employed by a corporation, then 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. The accused need not know that this is how the CFPOA defines a foreign public official, nor that bribing this person is illegal.

Key takeaways

While not determinative of the appeal, the court’s clarification of the mental element of bribery is a significant development. To date, there have been very few prosecutions under the CFPOA and this clarification of mens rea offers some guidance to those involved in future prosecutions. To secure a conviction for bribery, prosecutors will need to establish, beyond a reasonable doubt, that an accused had knowledge of the “official” character of the person to whom the bribe was offered.

The authors wish to thank articling student Alexander Carden for his help in preparing this legal update.


Footnotes

1   R v Barra, 2021 ONCA 568.



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