A Quebec Superior Court judge rejected two motions filed by former SNC-Lavalin vice-president Sami Bebawi and his tax lawyer in their effort to put an end to the criminal case brought against them alleging they tried to obstruct justice.
In 2014, Bebawi, 72, and his tax attorney, Constantine Kyres, 55, of Town of Mount Royal, were charged with obstructing justice in a case where they were alleged to have offered a $10-million bribe to a key witness in another criminal case. In that case, Bebawi is charged with bribing Libyan government officials in order to secure projects for the engineering firm. Kyres faces an additional extortion charge.
In February, the Crown announced it was placing the obstruction charges filed against both men under a stay of proceedings after a judge ruled that evidence gathered in the investigation had violated attorney-client privilege. However, three months later, the Crown announced, through a statement released by the RCMP, that it was again proceeding with the case through a direct indictment, a process where the prosecution proceeds without a preliminary inquiry, and was thereby “reviving the charges against both accused.”
In reaction, defence lawyers Frank Pappas and Jacques Larochelle filed motions arguing the Crown went back on its word to not proceed with a direct indictment if it lost on the issue of whether the methods used by the RCMP to investigate Kyres constituted a violation of attorney-client privilege. The methods that were used are currently subject to a publication ban and therefore cannot be reported.
The 45-page decision delivered by Superior Court Justice Guy Cournoyer Friday afternoon describes how Bebawi lawyer Larochelle approached Crown prosecutor Jacques Dagenais just before a preliminary inquiry was set to start in September 2017. As the two lawyers spoke in a cubicle next to a courtroom, Larochelle pointed out that they could potentially save a lot of time if they could argue the issue of attorney-client privilege first before hearing all of the evidence the Crown intended to present for the preliminary inquiry.
The matter was still being debated among all lawyers involved in the case as they entered the courtroom. And just before the judge who was scheduled to hear the preliminary inquiry entered the courtroom, Larochelle asked: “Are we going to work for nothing, and if you lose, are you going to deposit a direct indictment?”
According to Cournoyer’s decision, Dagenais clearly replied: “No, no, no.”
The motions filed by both Pappas and Larochelle argued that by filing the direct indictment in May, the Directeur des poursuites criminelles et pénales (DPCP) went back on the word given by Dagenais, one of its members.
Pappas argued it represented an abuse of procedure while Larochelle challenged the constitutionality of the legislation that governs the DPCP. Larochelle argued it represented an “unconstitutional encroachment” on the federal government’s ability to accord power to provinces when it comes to managing cases and questioned the ability of the DPCP to act on its own.
As part of his decision, Cournoyer ruled that the law that governs the DPCP is compatible with a section of the Criminal Code of Canada that covers how provinces prosecute cases.
“In other words, the Loi sur le DPCP establishes a fair equilibrium between the maintenance of ministerial responsibility of the attorney general of Quebec all in favouring the fundamental principal of justice on which the prosecution should act independently of all political and partisan considerations,” Cournoyer wrote.
The case returns to court on Nov. 14.