The Cryptometrics Inc. bribery scandal in Canada has resulted in two more convictions under the Corruption of Foreign Public Officials Act (CFPOA).
Robert Barra, an American citizen, and Shailesh Govindia, a UK national, were both convicted of offenses under the CFPOA in January.
Previously, Nazir Karigar, a Canadian-Indian businessman, was convicted after a trial and sentenced to three years in prison for his role in the same scandal.
The latest convictions were registered after the second ever trial under the CFPOA, even though there was no evidence that a bribe was ever paid to a foreign public official and no contract was awarded by Air India.
The judge held that offense required proof that the accused had knowledge that the potential recipient of the bribes were “foreign public officials” as defined by the CFPOA. After a review of the evidence, the judge held that there was not sufficient evidence that the Air India employee was known by the two accused to be a “foreign public official” but that the government Minister was.
The defense attacked the reliability of a “cooperator” and co-accused, Dario Berini, who tape recorded a conversation of the alleged conspiracy to bribe Air India officials. The trial judge, Justice R.J. Smith, of the Ontario Superior Court of Justice held that the evidence of the co-operator was sufficiently reliable to prove the allegation beyond a reasonable doubt.
Govindia’s also defended the charge at trial on the basis that although it was an “error of professional judgement” to agree to bribe Indian Minister of Civil Aviation Praful Patel, that he was not really serious, and simply he wanted to secure the $500,000 as a consulting fee by dishonest means.
The trial judge said, at paragraph 60:
I do not believe Mr. Govindia’s evidence that he was only pretending to agree to pay a bribe to the minister. I find this evidence, that he confessed to Mr. Barra the following morning at breakfast that the money was all for him and that he was only pretending to agree to pay the bribe of $500,000 to the Indian minister during their tape-recorded meeting, to be completely unbelievable.
The reasons from the trial judge are instructive for those who advise clients on compliance with the CFPOA, Barra was convicted of two offenses, one of agreeing to pay a bribe of $250,000 to a foreign public official, and the second offense of agreeing to pay a bribe of $500,000 through Govindia, to the same Indian Minister of Civil Aviation.
Shailesh Govindia was convicted of one count of agreeing to pay a bribe to a foreign public official under the CFPOA. The punishment and sentencing phase of the trial is yet to be finally resolved at the time of writing.
Norm Keith is a partner with Fasken, in its Toronto office, practicing regulatory, employment and white collar defence litigation and government investigations. He is the author of Canadian Anti-Corruption Law & Compliance (Lexis Nexis, 2nd, 2017). He can be reached at 416-868-7824 or at [email protected].