Canadian Lawyer

Client: Cy Tokmakjian Lawyer: Barry Papazian Country of detention: Cuba B arry Papazian is a founding partner of the Toronto law firm Papazian Heisey Myers. A litigation specialist, he also does arbitration, domestically and internationally. He is the longtime lawyer of transport entrepreneur Cy Tokmakjian and his Concord, Ont.-based Tokmak- jian Group. Over 20 years, Tokmakjian had built one of the largest foreign-trade operations in Cuba, employing 200 people. He had even received a business award from Fidel Castro. But in September 2011, at age 71, the respected businessman suddenly became an accused criminal, swept up in the Com- munist regime's anti-corruption drive. State security seized US$100 million of the company's assets (in bank accounts, offices and inventory). Following a two-week trial in June 2014 before the People's Provincial Tribunal of Havana, Tokmakjian was convicted of bribery, damaging the Cuban economy, illicit economic activity, currency trafficking, fraud and tax evasion. He was sentenced in September 2014 to 15 years in prison. He was expelled to Canada in February 2015 following three years of detention. Papazian says his client's ordeal unfolded in slow motion. "Initially, he was only under house arrest. The seriousness of his situation didn't click in for weeks." Even after charges were laid, Tokmakjian believed the Cubans would realize they had made a mistake, says the lawyer. "Our job was to say, 'yes, but we have to do all our homework.'" To do the homework, Papazian assembled a legal "dream team" within the first two months. He hired a Spanish expert on the Cuban legal system (which is derived from Spain's system) at the international commercial law firm of Bird & Bird in Madrid. As local lawyers, he turned to a small Havana firm (one of a limited number allowed by the Cuban state to act for foreigners). He received advice from a former Cuban attorney general and an English-speaking commercial lawyer at the firm. A Cuban working as a law clerk in Canada gave advice and translated for Papazian on the several trips that he made to Cuba. He consulted frequently with immigration lawyer Lorne Waldman, who discussed raising the case at the UN. "We didn't pursue that for tactical reasons," says Papazian. "We didn't want to escalate matters." He also hired the litigation boutique of Lenczner Slaght Royce Smith Griffin LLP to launch a $200-million civil action in Ontario against the Cuban state. "It didn't go very far; it was partially tactical, because Cuba's sovereign immunity was an issue." Papazian also enlisted Navigator Ltd., the strategy firm, to guide him in Ottawa. "We needed to get to the right people at the highest level of foreign affairs," he says. "Navigator said, 'here's how it works.' I didn't need influence; I needed channels of communication. I was extremely impressed by Foreign Affairs in every way, through the whole affair." He also hired a retired Mountie to run a check on Tok- makjian's operations in Ontario to prove their bona fides. "He had no criminal record, no bankruptcies. Initially, we thought that would impress the Cubans.'' Despite not being a criminal lawyer, Papazian felt com- fortable being "fully involved" in his client's defence, he says, because his business was a legitimate enterprise, not "an off- shore tax situation." Initially, Papazian was hopeful that Tokmakjian's release would come through the Cuban judicial process. "Then I realized that it would require political collaboration, both here and in Cuba. If the Canadian legal system had applied, it would have been a civil rather than a criminal dispute. But the Cuban authorities applied the criminal law." The prosecution and the defence disagreed on the facts and the numbers. "The differences were huge," says Papazian. But there were also procedural issues. No clear separation existed between the judges and the prosecution. Expert reports were filed, but the experts were not allowed to testify. "It was not enough to say this was unfair," he says. "That's the system. You had to respect the system and work within it. There was an avenue to appeal the conviction, which we did. But the advice we received was that an appeal was much more restricted in Cuba than here in terms of potential suc- cess." Meanwhile, negotiations with Cuban officialdom were ongoing — both before and after the trial. "I tried to edu- cate them as to why what happened was alright, from our perspective." But the authorities had little understanding of basic Western economic concepts, according to Papazian. They calculated the corporate taxes owed based on revenues instead of profits. The cost of acquiring goods was not con- sidered. Ultimately, Papazian negotiated directly with Cuban officials from several ministries to gain his client's freedom. He declines to discuss the negotiations, because Tokmakjian and his company had to sign a confidentiality agreement to secure his release. "I brought him back personally. I went there and stayed for five days and I wasn't leaving until I came back with him." Barry Papazian is a partner at the Toronto law firm Papazian Heisey Myers. w w w . C A N A D I A N L a w y e r m a g . c o m J A N U A R Y 2 0 1 7 27

• Cover