Within the past week, rulings by Quebec judges in two separate cases have further blighted the efforts of Canadian prosecutors in their pursuit of alleged foreign corruption by Canadian engineering and construction firm SNC-Lavalin. Both rulings involved determinations that there had been unreasonable delays in bringing the cases to trial.
First, on February 15, Quebec Superior Court Justice Guy Cournoyer stayed proceedings in an obstruction-of-justice case against a former SNC-Lavalin executive vice president, Sami Bebawi, and Bebawi’s tax lawyer, Constantine Kyres. That case involves allegations that Bebawi and Kyres had offered a CDN $10 million bribe to have another former SNL-Lavalin executive change his testimony in a separate fraud and corruption case against Bebawi.
Second, on February 19, Quebec Superior Court Justice Patricia Campagnone stayed proceedings in a fraud and bribery case against former SNC-Lavalin vice president and controller Stéphane Roy. That case involves allegations of fraud and bribing a foreign public official in relation to SNC-Lavalin’s business with the regime of the late Libyan Prime Minister, Moammar Gadhafi.
In both cases, the basis for the justices’ rulings was the 2016 Canadian Supreme Court decision in R. v. Jordan. That decision, which criticized “the culture of complacency towards delay that has pervaded the criminal justice system in recent years,” established a new framework for compliance with subsection 11(b) of the Canadian Charter of Rights and Freedoms, which requires a person charged with an offense “to be tried within a reasonable time.” Jordan established a presumptive ceiling of 30 months between laying of charges and the end of trial for Superior Court cases, “beyond which delay becomes presumptively unreasonable.”
In Bebawi’s and Keyes’s case, both defendants were charged in 2014, and the charges were reinstated by direct indictment in May 2018 after proceedings were stayed in February 2018 (due to certain evidence being ruled inadmissible). Trial on the reinstated charges had not begun as of February 2019, and would not have concluded until more than 60 months after charges were laid.
Justice Cournoyer wrote that even after the Jordan decision, the case against Bebawi and Kyres “remained forgotten” for more than 11 months. “The prosecutors,” he observed, “were unable to explain what happened in the year that followed the Jordan decision. . . . The file seemed to have been abandoned like a ship without a captain that is drifting slowly, but inexorably, towards a reef.” He also ruled, according to the Globe and Mail, that “Crown prosecutors did not show that the delays in the case were reasonable.”
In Roy’s case, Roy was also charged in 2014, and his trial was scheduled to begin in late May 2019. Justice Campagnone stated that delays that the prosecution had created were “an example of the culture of complacency that was deplored by the Supreme Court” in Jordan.
The Crown reportedly stated that it would take time to decide whether to appeal Justice Cournoyer’s decision, and that it would study Justice Campagnone’s decision. In the meantime, Bebawi is still scheduled for trial in April 2019, on charges that include fraud and bribery of a public official involving SNC-Lavalin’s engagement with the Gadhafi regime.
Note: These two rulings have been overshadowed by more sensational allegations that officials in the office of Canadian Prime Minister Justin Trudeau sought to pressure then-Attorney General Jody Wilson-Raybould to resolve the corporate-bribery prosecution of SNC-Lavalin with a deferred prosecution agreement. While the long-term effects of these allegations on the administration of Canadian Prime Minister Justin Trudeau are not yet clear, the Jordan rulings in Bebawi’s, Kyres’s, and Roy’s cases should strongly influence Canadian prosecutors’ future decisionmaking about the timing of laying of charges and trial preparation. As appellate courts are unlikely, in the light of Jordan, to overturn the Justices’ rulings in those latter cases, prosecutors can only hope that they will be able to avoid dismissals in other Superior Court cases in which the delays exceeded the Jordan 30-month time limit by fewer than five years.
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