'Defence conduct' largely to blame in delay, Crown argues in money laundering Jordan application
Talal Fouani pleaded guilty 7 months after wife was fatally shot and he was injured
A Calgary man who pleaded guilty to money laundering 18 months ago but still hasn't been sentenced should see his charge tossed because it's taken too long to prosecute, his defence lawyer argued Wednesday.
Talal Fouani, 48, was charged in June 2022 and pleaded guilty on March 17, 2023.
Although he pleaded guilty, Fouani did not admit to the basic facts of the case, a conviction was not entered and a sentencing hearing never took place.
On Wednesday, Fouani's new lawyer argued a Jordan application, which is a hearing where the defence asks a judge to stay charges because the client's Charter rights have been violated due to an unreasonable delay in the prosecution.
The Supreme Court ruled that cases in provincial court should take no longer than 18 months to conclude.
During Wednesday's Jordan hearing, defence lawyer Greg Dunn called the state of the case "very unusual" because of the way Yoav Niv, Fouani's previous lawyer, entered the guilty plea without facts or a conviction.
"It's not a wise and preferred method of entering a guilty plea," said Dunn.
"I've never done it in my 22 years of practice."
'I will not be bullied'
At the time, the Crown wanted basic facts admitted on the record, but Niv refused.
"Unless you have authority to indicate otherwise, there is nothing requiring me to admit facts at the time I plead guilty," Niv wrote in an email to the Crown on March 15, 2023.
"I will not be bullied or unduly pressured to make admissions. If you try to prevent me from pleading guilty on the basis you are alleging, I will have no choice but to file an abuse of process and seek a stay of proceedings."
The state of the case is important because if Justice Greg Stirling finds there is unreasonable delay and prosecution is "pre-verdict," then the remedy is a stay of proceedings.
However, if the judge finds there is unreasonable delay and the prosecution is "post-verdict," then there is either no remedy, or if he accepts the defence position, a reduction in sentence.
'The elephant in the room'
Dunn argued that with no conviction, the presumption of innocence is still alive and the state of the case is pre-verdict.
After his March 2023 plea, the process was interrupted when Fouani's lawyer filed 12 applications, most of which were ultimately abandoned.
There were several instances where Niv applied for publication bans and in-camera hearings that were abandoned and then reactivated down the line.
"Complicating the number of applications filed in these proceedings was the defence conduct which created ambiguity, confusion and further delay," reads part of the Crown's brief on the Jordan application.
'Defence conduct'
During his arguments, Dunn called Niv's conduct "the elephant in the room" but said some of the applications were legitimate and "cannot be regarded as delay solely caused by the defence."
Dunn also argued the applications did not contribute to delays in the proceedings.
After Fouani fired Niv, he hired Dunn who abandoned all but two of the outstanding applications.
Prosecutor Shelley Tkatch argued that the largest chunk of delay on the case is the time between when Fouani fired Niv until today.
Tkatch said that timeframe is solely attributable to defence.
"Most of the delay in this sentencing proceeding was driven by the defence conduct, either by the delays once Mr. Fouani fired his original lawyer, or the increased complexity and time taken for numerous applications, and the changing nature of the eventual sentencing hearing," reads part of the Crown's brief filed in response to Dunn's application.
"[Fouani's] lawyer's communications and actions demonstrated an unwillingness to cooperate and created an apparent expectation that his lawyer's schedule and his personal requirements took precedence over all other considerations."
'Assassination attempt'
Two months after he was charged, Fouani and his spouse were shot as they sat in their vehicle outside their Calgary home.
Nakita Baron died, Fouani survived.
On Wednesday, for the first time, a potential connection between the organized crime charges and the shooting was mentioned in court.
"[Mr. Fouani] was the subject of an assassination attempt," said Dunn.
"He was shot in the head, his wife was murdered; presumably related to these hearings before the court."
ABOUT THE AUTHOR
