Not looking good for the accused... From online Star
‘A fraud on us’: Judge challenges the defence ahead of fall verdict in $300M St. Mike’s hospital construction trial
The defence argues no one has suggested John Aquino and Vas Georgiou didn’t breach the rules — rather that the rules routinely get broken in the world of high-stakes public procurement.
Two men charged with defrauding the public during the competition for a major renovation contract at Toronto’s downtown St. Michael’s Hospital will have to wait until the fall to hear the verdict.
But the trial judge has made it clear he wasn’t impressed with how they operated.
“The public invested a fortune in this procurement in order that it could sustain any scrutiny, and because of the conduct of the accused, we have effectively lost our money — that is a fraud on us,” Justice Peter Bawden told lawyers as they gathered for the final time on Thursday.
Vas Georgiou, 60, the former chief administrative officer of St. Mike’s, and John Aquino, 52, president of Bondfield, once a major player in the Ontario construction industry, have both pleaded not guilty to fraud that allegedly took place from 2012 to 2015.
The trial that began last fall resumed for a single-day hearing after prosecutors and defence lawyers filed “voluminous” written submissions on their respective positions.
Crown attorneys Rachel Young and Ellen Weis allege Georgiou and Aquino made a “mockery” of safeguards put in place to ensure the winner of the $300 million contract was fair, open and transparent by communicating with each other during the procurement process with a secret phone and secret email account, paid for by Bondfield.
“This hotline provided a direct and nearly exclusive line of communication between the two men during the request for proposals stage,” the prosecutors wrote in their court filings. Emails and call logs and Georgiou’s own testimony establish that they used this phone and email to communicate about the competition and how to improve Bondfield’s chances of success in it.
“These actions — to favour Bondfield in a dishonest manner — amount to fraud.”
Defence lawyer Peter Brauti, who represents Georgiou, and Aquino’s lawyer, Alan Gold, admit their clients broke certain procurement rules that were commonplace in the industry. But they argue that doesn’t equate with acts of dishonesty or fraud. Nor did their rule-breaking lead to any risk of financial deprivation.
“Mr. Georgiou’s intentions were always to act in the best interests of SMH,” they wrote. “The prosecution has refused to acknowledge that most large-scale business projects often require a practical approach in order to achieve the best possible result. Relationships are important. Partnerships get formed. Socialization occurs. Bottles of wine are given during the holidays. Charity events are attended. And informal discussions occur to get the best possible product across the finish line.”
The lawyers say “there appears to be only one significant factual issue” that could give rise to an issue of possible favouritism — communications between the two men over the long May weekend as the competition drew to a close. But by then, Bondfield was the only viable proponent left competing for the redevelopment project.
At the outset of last week’s hearing, Bawden told the lawyers he was taking an “unorthodox approach” by giving them a “last chance” to convince him of their positions. He then gave an overview of how he perceives the evidence, including testimony of hospital executives, Bondfield employees, and Georgiou’s former colleagues at Infrastructure Ontario. Georgiou took the stand while Aquino did not testify.
Bawden singled out what he considers the most persuasive piece of evidence in the prosecution’s case: Georgiou’s secret phone.
And while the judge said he saw no evidence “of a payoff,” he understands Georgiou’s motivation.
“He was hired to get this deal done, and he wanted to get the deal done,” said the judge. He noted Georgiou signed off on acknowledgements denying that he had any conflicts, despite having personal and business dealings with Aquino.
The judge told Brauti his client is in “a very, very deep hole on deceit, I don’t think you can raise a doubt on that score.”
Georgiou “put his thumb on the scale,” Bawden said, and he’s “not allowed to do that.”
After Bawden finished what Brauti characterized as a “monologue,” the defence lawyer reminded the judge that the defence never suggested their clients didn’t breach the rules.
He pointed out that when Georgiou told Aquino on the phone to “bid low,” that was something all the proponents bidding for the contract were being told.
"They knew that low bid wins once you are applying, that was the message being sent to all of them,” Brauti told Bawden.
“No, it’s different when you’re talking to someone privately,” the judge responded.
Judgment is set for Oct. 7.
en.wikipedia.org
