Snc-lavalin and the off-ramp

Excerpted from “L’affaire Snc-lavalin: The Public Law Principles,” from the blog of Craig Forcese, professor of law at the University of Ottawa.

The reason for this AG/ prose cu tori al independence is straightforward: the role of the AG and prosecutors is to act in the public interest, not in the interest of whoever is in the PMO. They must, therefore, not be under the thumb of the political executive, and indeed must be insulated from political pressures that would, for instance, leave some people favoured in the criminal justice system, and others targeted. A core ingredient of the “rule of law” is that “there is, in short, one law for all.” We do not have one criminal law for the powerful and influential, and another one for everyone else. ...

A final point relates to the fact that at issue was the prosecutors’ unwillingness to enter into a remediation agreement negotiation. Some on Twitter Law School have suggested this fact relaxes the traditional strictures on Ag/prosecutorial independence.

I do not see how that could be. First, a remediation agreement is, essentially, an offramp from a prosecution for corporate economic crimes. It is simply impossible to imagine that use of the off-ramp may be a politicized exercise, while only driving down the highway is protected by independence. That would mean, in effect, there is no independence: the off-ramp would be available to the politically-favoured companies, who never have to take a ride down Highway Prosecution if they had friends in high places. We would have, in effect, two Criminal Codes: the Code for corporate friends, and the Code for everyone else. That would do considerable violence to the rule of law. ...

I would resist, therefore, any assertion that prosecutorial independence is unavailable where a prosecutor acts under Part XXII.1 of the Criminal Code (the “Remediation Agreements” section). At any rate: the Code itself does not anticipate politicking. Section 715.32 places the discretionary decision on whether to enter into a remediation agreement negotiations in the hands of the prosecutor, whose decision to negotiate would be approved by the AG. In this context, because of the Director of Public Prosecutions Act, the AG should be read as the “director of public prosecutions.” (Put another way, unless the AG proactively intervenes under the express powers to do so in that Director of Public Prosecutions Act, noted above, he or she is not personally involved in this decision.)

The Code sets out (in considerable detail) the factors the prosecutor is to consider in exercising their discretion. This is a fettered discretion. And even if there were no constitutional conventions of independence applicable here, prosecutors would still err if they were to depart from the language of the Code and contemplate political variables like “heavy pressure,” “urge” or “attempts to press” from the PMO. Specifically, if they did not enjoy prosecutorial independence, they would be fully subject to administrative law discipline. And that discipline would preclude abuses of discretion. While administrative law “standards of review” are a muddled mess, it would still be an unreasonable exercise of discretion to act based on improper considerations not anticipated by the statute. In sum, even if the prosecutor were stripped of independence for Part XXII.1 purposes, we are still talking about a legal error, were he or she responsive to political pressure.