MUHC fraud trial at risk from outset
Defence expected to invoke Jordan ruling at a pre-trial conference
Crown prosecutors assigned to the major fraud trial of former executives of SNC-Lavalin and the McGill University Health Centre are bracing for the possibility that defence lawyers will petition the court to toss out the case because it has dragged for more than four years.
At a pre-trial conference scheduled for Friday, defence lawyers are expected to invoke the Jordan ruling by the Supreme Court last year, which set strict limits on the wait times for criminal trials.
But a Université de Montréal law professor told the Montreal Gazette he doubts a judge would readily agree to stay the charges, given the complexity of the case and the fact that some of the accused had lived abroad during the proceedings — a factor that contributed to the delays.
Nathalie Kleber, the lawyer in charge of the prosecution, acknowledged in an interview that defence lawyers might use the Jordan ruling on behalf of their clients.
“We don’t know (when the trial will start) because it depends on the motions that will be made by the defence,” Kleber said last week.
“The conference will determine all these questions.”
The alleged MUHC conspiracy has been described by a provincial police detective as the “biggest corruption fraud in the history of Canada.”
Former SNC-Lavalin CEO Pierre Duhaime and Riadh Ben Aïssa, who once served as a vicepresident of the engineering firm’s construction division, are accused of paying $22.5 million in bribes to win the contract to build the $1.3-billion MUHC superhospital.
Yanaï Elbaz, an ex-manager of the MUHC, is accused of fraud, taking bribes and money laundering, among other charges. The late Arthur Porter, the former head of the MUHC, also faced charges but he died in Panama two years ago while contesting extradition to Quebec.
(Nicolas St-Jacques, the lawyer representing Duhaime, declined to discuss the case or his legal strategy. Lawyers for the other accused were not available for comment.)
The issue of unreasonable judicial delays arose last July when the Supreme Court stayed the drug charges against a British Columbia man, Barrett Jordan, because his case took four years to reach trial. The court ruled that Jordan’s constitutional right to a trial within a reasonable time frame had been violated.
The justices also established socalled “numerical ceilings” – or wait times – to counter what they deplored as a “culture of complacency” in the justice system.
A wait time of 18 months was set for provincial court trials from the time of arrest to the anticipated conclusion of a trial. For more serious crimes like murder that are tried in Superior Court, the maximum delay was set for 30 months.
The ruling sent shock waves through justice systems across Canada. In April, a Quebec Superior Court judge stayed a 2012 charge of second-degree murder against a Montreal man, Sivaloganathan Thanabalasingham, because the Crown took too long to prosecute the case.
The Crown has since filed an appeal to have that decision overturned.
It was more than four and a half years ago – on Nov. 28, 2012 – that police arrested Duhaime. Since then, the Crown has faced setbacks, dropping all charges against two men – Jeremy Morris of the Bahamas and St-Clair Martin Armitage of England.
Although Morris had served a passive role as a “nominee director” of one of Porter’s companies in Nassau, the Crown determined he was not involved in the alleged bid-rigging conspiracy.
The Crown later withdrew all charges against St-Clair Martin Armitage, who had worked as a consultant for the MUHC.
But in December 2014, Porter’s wife, Pamela Mattock Porter, pleaded guilty to two counts of money-laundering for her role in the alleged conspiracy.
Stéphane Beaulac, a law professor at U de M, said that just because the defendants have waited considerably longer than the maximum 30-month ceiling imposed by the Supreme Court does not automatically mean their case will be thrown out.
“The onus is on the Crown prosecutor to explain to the satisfaction of the judge that there are circumstances to justify going beyond (the Supreme Court limits) without the proceedings being seen as unreasonably delayed,” Beaulac said.
“Cases for fraud are extremely complicated, and you multiply that by the number of co-accused. So even for a new case like the one we’re talking about, it is very likely that it could be justifiable.”
The proceedings to date have been delayed by multiple requests for publication bans sought by the defence.
The sheer number of defence lawyers involved has sometimes led to postponements in hearings because of scheduling conflicts. Those are factors that a judge will take into consideration, Beaulac suggested.
What’s more, the Supreme Court stipulated that in criminal court proceedings that started before its ruling, judges must apply the new limits with “great flexibility,” Beaulac noted.
Such is the case for the MUHC fraud trial.
Apart from the main proceedings, separate trials are being held for two other accused: Yohann Elbaz, a lawyer and Yanaï Elbaz’s brother; and Stéphane Roy, an exVP of finance at SNC-Lavalin.