Court delays mean former federal researcher in Sask., accused of fraud and breach of trust, walks free
Alexander Quon | CBC News | Posted: April 20, 2023 10:00 AM | Last Updated: April 20, 2023
Yantai Gan was set for trial May 1, but a Court of King's Bench judge has ruled the prosecution took too long
A former federal researcher accused of fraud and breach of trust has had all charges stayed after a judge ruled that his right to a trial in a reasonable time had been violated.
The prosecution of Yantai Gan, 67, fell apart after a Jan. 12 hearing at Saskatchewan's Court of King's Bench in Swift Current.
That's when Justice Timothy Keene ruled that the prosecution had exceeded the amount of time allowed under the Supreme Court's Jordan decision.
The Jordan decision sets a hard limit on the amount of time that can elapse between when charges are issued and a trial begins: 18 months if the case is being heard in provincial court or 30 months if its being heard in superior court.
Keene calculated that the Crown's prosecution would exceed the 30 month limit by 14 days.
"In my view, Jordan sets a hard cap and even if this appears a close call, I must find in favour of the applicant, and not the Crown," Keene said, according to a transcript of the judge's oral decision. The ruling was first reported by The Western Producer.
The court's decision was welcomed by Brian Pfefferle and Mark Brayford, who represented Gan in court.
"We are pleased that the Crown did not decide to appeal this decision, which we felt was legally correct," Pfefferle said in a statement on Wednesday.
Allegations of working with foreign universities, companies
Gan was a research scientist at Agriculture and Agri-Food Canada's Swift Current Research and Development Centre when he was arrested and released in November 2019.
He was charged with breach of trust by a public officer, fraud over $5,000 and possession of the proceeds of crime over $5,000, after a 21-month investigation by the RCMP's national security enforcement team.
That team typically deals with espionage, sabotage, threatening acts or releasing classified information, according to an RCMP webpage.
Court documents previously reviewed by CBC indicate that Gan was alleged to have entered into an unauthorized, contractual relationship while receiving money with the Gansu Agricultural University in China.
He was also alleged to have not disclosed the relationship to his employer, and failed to disclose that he received remuneration from China for that relationship.
Gan was alleged to have recruited for and organized an international research collaboration for Gansu Agricultural University and made one or more "travel requests or expense claims that were false in whole or in part," according to the court documents.
Gan is also alleged to have entered into an unauthorized relationship with Barilla America, a subsidiary of Italy's largest food producer. The documents describe Gan as having received out $24,000 from Barilla America and failed to disclose that to his employer.
The indictment claimed Gan made false expense claims to the University of Saskatchewan and also failed to adhere to his employer's ethics code and failed to disclose a conflict of interest.
Gan was also charged with defrauding the public of money exceeding $5,000 and possession of the proceeds of crime over $5,000.
The 67-year-old began working with the federal agriculture department in February 1999, but was no longer employed after his arrest in 2019.
Gan was taken into custody in December 2021 and was set to appear for a jury trial on May 1 before the judicial stay was issued.
Pfefferle described Gan as a highly regarded scientist who has now retired from all active employment.
"It was always our position that this was an employment law issue and not a criminal or quasi-criminal matter," Pfefferle said.
COVID-19 plays a role in delay
In total, 42 months and 8 days passed between the charges being laid and the date set for Gan's trial.
In the judge's calculation, five and half months were subtracted from the total as a result of a delay to the preliminary hearing, while six months were subtracted as a result of effects of COVID-19 on the justice system.
That left 30 and a half months, which exceeded the limit by the Jordan decision.
One of the issues disputed by the Crown and Defence was a six-week period where an RCMP corporal was not able to access his secure computer system and prepare disclosure for the Crown, who would then provide it to the defence.
The officer was sent home as part of the force's COVID-19 policy.
The Crown argued that the six-week time period should have been subtracted from total time as it was an "exceptional circumstance" that the RCMP did not cause and could not have done anything about.
The defence disagreed, saying that the disclosure work should have been done beforehand or prioritized much earlier.
Keene ultimately sided with the defence, saying the delay was a private workplace policy and that RCMP should have found a way to facilitate the work as other organizations, such as schools or hospital, did during the COVID pandemic.
"I cannot simply call this an exceptional circumstance because of COVID-19. And with respect, COVID-19 did not always become a free pass," Keene said.
The RCMP did not immediately respond to request for comment.
Crown Prosecutor Wade McBride was not available for an interview on Wednesday, citing effects of the ongoing strike by public servants, but provided CBC with a transcript of the judge's oral decision.
Corrections:- A previous version of this story stated the Crown argued that the six-month time period should have been substracted. In fact, the Crown argued that the six-week time period should have been subtracted. April 20, 2023 3:58 PM