An Ontario Superior Court judge has ruled that a 44-month delay is not unreasonable in a corruption case, even when the Crown opts to proceed by a direct indictment and thereby forgo a preliminary inquiry.

Robert Barra and Shailesh Govinda are accused of having been part of an unsuccessful scheme to bribe Air India officials into awarding its company, CryptoMetrics Inc., and its Canadian subsidiary a multi-million dollar biometrics contract.

This investigation and prosecution is linked to the first ever prosecution under the CFPOA to go to trial in Canada (the others were resolved through a plea bargain). In R v Karigar, Nazir Karigar, a CryptoMetrics Inc. agent, was found guilty under the CFPOA and sentenced to three years in prison. His conviction was upheld by the Ontario Court of Appeal in July 2017.

In October 2017, Justice M. Labrosse in R v Barra and Govinda concluded that the presumptive ceiling of 30 months – established in the Supreme Court decision R v Jordan – continued to apply to matters proceeding in Ontario’s Superior Court of Justice but that exceptional circumstances could justify a total delay above this ceiling.

In assessing these exceptional circumstances, the Court evaluated discrete events – such as the extradition from the U.S and the U.K. of the co-accused – and the complexity of a multi-jurisdictional prosecution, including the volume of the Crown’s disclosure comprising of more than 2,800 documents and 30,000 pages. Furthermore, the charges were laid under the Corruption of Foreign Public Officials Act (CFPOA), Canada’s anti-bribery legislation, for which very little case law exists to guide the Crown.

In coming to its conclusion, the Court in Barra and Govinda found that the net delay for the accused fell under 30 months and was therefore under the applicable ceiling. Notwithstanding, the complexity of the case would likely have justified a longer delay had one been applicable.

In white collar cases and cross-border prosecutions, it is not uncommon for disclosure to be in the tens of thousands of documents. As a result, clients should be aware that the Jordan ceiling can be interpreted generously and that companies seeking to rely on a 30 month ceiling as a reasonable time to have the Crown advance its case may not be able to do so when there are exceptional circumstances that may justify a longer delay.