May, 2007, file photo of former Nortel CEO Frank Dunn.
Ontario Crown prosecutors are expected to drop four of the charges facing three former Nortel Networks Corp. executives accused of fraud for misstating the company's financial results between 2000 and 2004.
Defence lawyer Brian Greenspan, whose firm is representing former Nortel corporate controller Michael Gollogly, said lawyers have been notified by the Crown that a new indictment will be filed in court on Thursday eliminating four of the seven charges against each of the men.
The amendment will come just days before the start of the trial into one of Canada's highest-profile accounting frauds centred on the country's once-largest telecom company. The technology giant filed for bankruptcy protection in 2009 and its assets have since been wound up and sold.
In addition to Mr. Gollogly, the case involves former Nortel chief executive Frank Dunn and former chief financial officer Douglas Beatty, who were charged in 2008 with manipulating Nortel's financial statements between 2000 and 2004 to trigger bonus payments for returning the company to profitability.
The amended charges will see the three men still face two counts each of fraud and one count of falsifying financial documents, Mr. Greenspan said. But a charge related to omitting "a material fact" from financial documents and three counts related to "circulating or publishing a false statement or account" are expected to be dropped.
The amendments eliminate charges that were similar to the remaining counts, but leave the core fraud allegations intact. Fraud charges carry a maximum penalty of 14 years under the Criminal Code.
A spokesman for the Ontario Attorney-General's office said the Crown would not comment on the case.
The trial is to begin Monday in Ontario Superior Court, but defence lawyers have requested a pre-trial hearing on Thursday to seek detailed disclosure from the Crown of "particulars" in the case, which refers to a detailed account of what is being alleged in the case.
Mr. Greenspan said lawyers especially want to know which documents are being cited as fraudulent, because Nortel has turned over four million documents in the case and it is unclear which are the subject of the allegations.
The trial will centre on a controversial period in Nortel's history when it was facing declining sales following a broader "tech-bubble" crash. It had reported large losses in 2001 and 2002, and had launched a major restructuring effort.
To spur improvements, executives had the opportunity to earn an unusual "return-to-profitability bonus" if they posted a profit for even a single quarter of a year. The bonuses were triggered in mid-2003 when Nortel reported a slim profit, and the three accused were paid more than $5-million under the plan.
Mr. Dunn and other executives were fired in 2004 following an internal investigation that raised questions about the company's financial reporting. Nortel subsequently announced a series of restatements of its financial results dating back to 2000.
Mr. Greenspan said he strongly disagrees with news reports that have suggested the alleged fraud caused the collapse of Nortel years later. He said the case focuses on actions in 2002 and 2003, and the Crown has not alleged they caused Nortel's bankruptcy filing in 2009.
"It's preposterous … That's not even the allegation," he said.
Lawyer David Porter, representing Mr. Dunn; and lawyer Greg Lafontaine, representing Mr. Beatty, did not respond to requests for comment. The accused have previously denied all the allegations.
The three men have elected a trial by judge alone. Mr. Justice Frank Marrocco, one of the Ontario court's most experienced judges in securities matters, will preside.
Before becoming a judge in 2005, he was hired by the Ontario Securities Commission to take over its prosecution of former Bre-X Minerals Ltd. chief geologist John Felderhof following the departure of the OSC's previous prosecutor, Jay Naster.
Judge Marrocco's highest-profile case was his defence of fugitive convicted killer Lawrencia "Bambi" Bambenek, who broke out of a U.S. jail where she was serving a life sentence for murdering her husband's ex-wife and fled to Canada. Then a lawyer in private practice, he represented Ms. Bambenek in her fight against deportation or extradition to the United States, during which she claimed she had been framed. The case was made into a TV movie, Woman on the Run; Broadway veteran Victor Garber, co-star of the TV show Alias, played Judge Marrocco in the film.
The prosecution team is led by veteran Crown attorney Sandy Tse. He led the 2008 prosecution of junior hockey coach and NHL agent David Frost, who was found not guilty of sexual exploitation of two teenaged players and their girlfriends in the 1990s.
Mr. Tse has been assisted by Crown attorney Robert Hubbard, who led the successful prosecution of Livent Inc. executives Garth Drabinsky and Myron Gottlieb. They are currently serving prison sentences of five years and four years, respectively, after being found guilty of systematically misstating the theatre company's financial records in the 1990s.
Janet McFarland