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Criminal convictions tough to get in MFP

|Written By Kirsten McMahon - Law Times

While Justice Denise Bellamy found there was enoughcredible evidence to conclude that former Torontocity councillor Tom Jakobek had taken a $25,000 payoff from computer salesmanDash Domi, among other things, how difficult would it be to come to the sameconclusion in a criminal or civil court?

Kent Roach says an open-ended public inquiry can often complicate subsequent criminal charges.
Kent Roach says an open-ended public inquiry can often complicate subsequent criminal charges.
The $19.2-million inquiry, which lasted over three years, was called to discover why computer leases signed by the city with MFP Financial Services, which were supposed to be worth $43 million, ended up costing almost double that amount.

After Bellamy released her four-volume, 1,123-page report last week, she stressed in a statement that she had no power to find people guilty of criminal acts or liable for civil damages.

However, Toronto Mayor David Miller says he will request that city council ask the OPP for a criminal investigation into the MFP scandal, stating the report "has laid bare damning evidence of how the system allowed rot and corruption to flourish at City Hall."

In a statement, Miller said, "The story told in this report amounts to a conspiracy to defraud the city by placing private gain above public service."

But finding any of the major players in the scandal guilty in criminal court will not be easy for investigators or the prosecution, says one criminology professor.

Kent Roach, a law professor at the University of Toronto who is currently serving on advisory committees for both the Arar inquiry and the Ipperwash inquiry into the killing of Dudley George, says the burden of proof and standards of evidence are much higher in a criminal trial than at a public inquiry.

"To introduce evidence in any criminal trial, the prosecution will have to demonstrate that it was obtained independently of any compelled testimony. So it really depends on what the compelled evidence and compelled testimony was at the inquiry," he says.

"That will have to be a decision that the police and the prosecutors eventually make, whether there is sufficient independently obtained evidence to warrant a reasonable prospect of conviction of any of the individuals that may be involved."

Roach says an open-ended public inquiry can often complicate subsequent criminal charges.

"This is something we saw in Walkerton and we saw in Westray, that holding a public inquiry and compelling testimony [that] was part of the public inquiry process certainly complicates subsequent criminal prosecutions.

"It doesn't make anyone immune from criminal prosecutions but it does put a high burden on the Crown to show this is evidence that would have been available regardless of what was compelled at the public inquiry," Roach says.

"It's clear in terms of going forward with a criminal charge that there has to be a reasonable prospect of conviction, and obviously in making that judgment the prosecutors will have to look at whether the evidence is independently obtained."

Whether the information and evidence found at this inquiry will help find liability in a civil suit remains to be seen, but a suit going to court next month may make this clear.

Back in 2002, when city council voted to stop lease payments after shady details of the deal surfaced, MFP, now Clearlink Capital Corp., launched a civil suit against the city claiming it was owed $14 million in lease payments.

The city then launched a $10-million countersuit, alleging that MFP was guilty of negligent misrepresentation, breach of contract, and breach of fiduciary duty. The city alleged at the inquiry that MFP had used a deliberate bait-and-switch strategy, but Bellamy's report casts doubt on that assertion.

"The city's bait-and-switch allegation casts too wide a net over MFP," Bellamy wrote. "Though Dash Domi may have been capable of other deceptions, he did not have the business sophistication to pull off the sustained and complicated deception necessary for a bait and switch. While MFP certainly has much to answer for in the aftermath of the computer leasing deal, so too does the city."

Clearlink CEO Fraser Berrill says the findings in Bellamy's report will help the company's civil suit.

"We are confident that the city's theory of liability on the part of MFP is largely debunked by the evidence and the characterization of events. We look forward to further confirmation of this at trial," Berrill said in a statement.

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