LOOKING AT THE WRONG TARGET. CORCORAN

With the resignation of Gerald Butts as his principal secretary, an even tighter circle of implied culpability now surrounds Prime Minister Justin Trudeau. Somebody within the Prime Minister’s Office at one time did something that puts Trudeau and the PMO at the centre of a political manipulation scheme designed to protect one of Canada’s national corporate champions, Snc-lavalin.

But has this two-week-long assault on the PMO focused a little too aggressively on the wrong target? From the moment the story broke about the PMO’S alleged attempt to “pressure” former justice minister and attorney general Jody Wilson-raybould, opposition leaders and media guns lined up outside Trudeau’s office demanding answers.

Throughout, Wilson-raybould has been mostly portrayed as the heroic victim of prime ministerial bullying. But another perspective is in order, one that focuses on Wilson-raybould and what can be fairly described as questionable ministerial decisions regarding Snc-lavalin.

All the facts are not available, especially the role of the former attorney general who, it is alleged, resisted pressure to instruct Canada’s public prosecution service to drop a criminal prosecution against Snc-lavalin and initiate negotiations instead for a Deferred Prosecution Agreement. By her resistance, Wilson-raybould defied the wishes of the Trudeau government and, likely as a result, was later fired from her portfolio.

That’s the main storyline. But why would the former minister have put herself in that position? And why would the Public Prosecution Service of Canada also apparently insist on pursuing the criminal case when it is well-established that doing so threatened the very existence of the company? Under existing integrity laws and regulations, many promulgated by the Harper Conservatives, a company found guilty of corrupt practices in court would face an additional penalty of being barred from bidding on government contracts for up to 10 years.

For a massive engineering-construction company such as Snc-lavalin, a 10-year ban on government work in Canada could put the company out of business. The policy, in this case at least, constitutes a corporate death penalty for wrongs committed by individual executives and managers. Why would Wilson-raybould allow the risk of a death sentence for a corporation that employs 9,000 Canadians and thousands more around the world?

The best legal minds in the country affirm that nobody in government — not the prime minister, not the cabinet, nobody — can even attempt to breach the independence of the attorney general. They can talk to her and try to persuade her to see their position, but they can’t cajole, pressure or direct her. If the PMO or others broke the legal wall between the government and Wilson-raybould as attorney general, then they were engaging in illegal interference.

But even if Trudeau et al. are guilty of attempted interference, thereby technically breaching sacred “rule of law” principles, there remains the issue of why Wilson-raybould might have refused to intervene in the criminal prosecution of Snc-lavalin. There are strong — some might argue overwhelming — political, economic and legal justifications for not proceeding with the prosecutorial death penalty.

The case for abandoning the criminal prosecution was built into federal law last September after Parliament passed amendments to the Criminal Code allowing the public prosecutor — and Wilson-raybould as attorney general — to opt for Deferred Prosecution Agreements, or “remediation agreements” as they’re called in Canada, as a way out of prosecutions for corporations accused of malfeasance.

The purpose of such remediation agreements, widely supported in the legal community and among many academics, is clearly spelled out in the Criminal Code amendments. The objective is “to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.” Other innocents at risk in the Snc-lavalin case include investors, pensioners and clients.

Other sections in the law provide ample support for negotiating a remediation agreement with Snc-lavalin, including a reasonable prospect of conviction at trial. Prosecutors must also be confident that the corporate crime “did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security.” The prosecutor must also be “of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances.” And finally, the attorney general must consent to the negotiation of the agreement.

The Snc-lavalin situation appears to meet many of those considerations for a remediation agreement, along with some others, including the company taking disciplinary action, terminating crooked employees and introducing organizational reforms. It seems reasonable to conclude — based on the company’s statements — that its anticorruption reforms and internal reorganizations at least justify opening the door to begin negotiating a remediation agreement. But Wilson-raybould apparently resisted the suggestion to do so, despite the risk that the prosecution alternative could produce the death of the company.

The minister’s motives and reasoning are unknown. Did she disagree with the legislation her government passed? Does she think Snc-lavalin should be pushed under the bus regardless of the political and economic impacts? Are there other facts available only to the prosecutor’s office and the attorney general? Was it an ideological issue?

Until Wilson-raybould delivers her version of events, there is reason to believe that the Prime Minister’s Office was at least justified in its attempts — illegal or not — to convince her that failing to pursue a legally available remediation agreement would be bad for the company, for Quebec, for Canada and for the Trudeau government.