Dealing with some criminal cases requires basic understanding of international law: professor

Schulich Law professor discusses transnational criminal law issues in Ontario Court of Appeal case

Dealing with some criminal cases requires basic understanding of international law: professor
Robert Currie, professor of international law and international criminal law, Schulich School of Law

A recent case involves both a specific transnational crime and issues that may crop up in more run-of-the-mill cases, says Robert Currie, a professor teaching international law and international criminal law at Dalhousie University’s Schulich School of Law.

The case of R. v. Barra, 2021 ONCA 568 deals with the bribery of public officials in foreign countries, a specific kind of transnational crime, as well as more commonly seen issues, such as the various legal impacts of extradition and Canada’s jurisdiction to prosecute the offence, Currie explains.

“Dealing with these cases successfully, whether you are Crown or defence, involves having a basic understanding of international law so that you know what questions to ask,” Currie says. “We are very quickly heading to a point where the competent practice of criminal law will require this.”

While criminal cases with cross-border aspects have been around for a long time, their frequency is rapidly increasing in the wake of globalization, Currie adds.

In this case, Robert Thomas Barra and Shailesh Hansraj Govindia were appealing their convictions of agreeing to bribe a foreign public official, specifically India’s minister of civil aviation, in breach of s. 3(1) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, for which they were each sentenced to 2.5 years in custody.

The Court of Appeal for Ontario set aside the convictions, allowed the appeal and ordered a new trial on the basis of the erroneous approach adopted in the mistrial application, finding that the trial judge erred in failing to declare a mistrial as the just and appropriate remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms. This finding was based on a reasonable possibility that the delayed disclosure breached the Crown’s disclosure obligations and impacted the overall fairness of the trial process.

The appellate court found, upon applying certain principles to the circumstances of the case, that the trial judge’s focus was too narrow, centering exclusively on the evidentiary value of a particular exhibit 11 instead of on the effects of the delayed disclosure on the outcome of the trial and the integrity of the justice system.

The appellate court rejected the other grounds of appeal, including the application judge’s ruling on s. 11(b) of the Canadian Charter of Rights and Freedoms and the trial judge’s findings on territorial jurisdiction, the principle of specialty, mens rea and conspiracy.

In relation to s. 11(b), the appellate court held that there was no unreasonable delay because the net delay for both appellants was below the 30-month ceiling. The appellate court also found that the trial judge was entitled to find that the alleged conspiracy had a real and substantial connection to Canada and that the extradition application included the actual wording of the conspiracy charge that ultimately appeared as count 1 of the preferred indictment.

The appellate court found no error in relation to mens rea, noting that the trial judge did not find that Barra knew that Air India was formed to fulfill a duty or function on behalf of the state of India. There was no need to address whether, if Barra had shared the belief that Air India was a Crown corporation, it would have been tantamount to knowledge that Air India was established to perform a duty or function of the state.

On conspiracy, the appellate court held that the Crown did not need to prove that the agreement’s parties were directly communicating and or were aware of all the details and the identities of the other alleged co-conspirators.

In a post discussing the case, Currie noted that the decision provides insights on various transnational criminal law issues, including by covering a qualified territorial jurisdiction angle, two different extradition issues and a “purely” transnational criminal law aspect in relation to Canada’s obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

“The OECD’s review mechanism regarding compliance with the Convention has not always been kind to Canada, and the government is no doubt frustrated that this case is going back for a new trial (barring an SCC appeal),” Currie wrote in the post.

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