COYNE: LAVALIN CHAT OUT OF BOUNDS.
SNC-Lavalin discussion was out of bounds
Consider solicitor-client privilege officially waived. The prime minister has spent the last several days disclosing, line by tendentious line, the contents of his discussions with the former attorney general in September of last year. First we were informed that he “never directed” Jody Wilson-Raybould to put a stop to the criminal prosecution of SNC-Lavalin. Next, that he told her “the decision” was “hers alone” to make. Only latterly did we learn that this was in response to a question from her: are you directing me?
If he is permitted to discuss their conversation, plainly so is she. Perhaps, indeed, that is what the prime minister anticipates. The strategy would appear to be to reduce the whole business to the murky ambiguities of private conversations. (Maybe she thought she was being pressured, but I didn’t think I was pressuring her!)
And yet this is something of a red herring. It doesn’t much matter whether she was directed or pressured or badgered or cajoled, if the action being discussed was out of bounds to begin with.
Suppose, that is, the prime minister did no more than politely ask whether she might consider — though of course it’s entirely up to you — prevailing upon the director of public prosecutions to set aside fraud and corruption charges against the Quebec construction giant in favour of the newly minted alternative of a remediation agreement. That would still be highly improper. Because she would have been asked to do something she could not legally do. And if she could, the DPP could not legally act as ordered.
Let’s take the last point first. The director of public prosecutions, Kathleen Roussel, it has been widely reported, decided not to offer SNC-Lavalin the remediation agreement it had so feverishly, and successfully, lobbied for. But in fact she may have had no choice. The relevant provision (sect. 715.3) of the Criminal Code sets out a long list of “conditions” that must be present and “factors” prosecutors must consider before they can even enter negotiations on such an agreement; another list sets out the “mandatory contents” of the agreement itself.
First, prosecutors “must” consider “the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities,” in the service of one of the legislation’s key objectives, “to encourage voluntary disclosure of the wrongdoing.”
But SNC-Lavalin didn’t voluntarily disclose that it allegedly paid bribes of $48 million to Libyan government officials and defrauded various organizations in the country of $130 million. The matter only came to light after a lengthy police investigation.
Second, the agreement must include “the organization’s admission of responsibility” for the alleged offence. Has SNC-Lavalin explicitly admitted corporate responsibility in the Libyan affair? A lawyer friend who has closely followed the case can find no example of it, in any public statement. It has dismissed the charges against it as “without merit,” insisting any alleged crimes were the work of a few rogue executives “who left the company long ago.” Perhaps that weighed heavily in the director’s deliberations.
Finally, there is sect. 715.32 (3) of the Code, under the heading “Factors not to consider.” For offences under section 3 or 4 of the Corruption of Foreign Public Officials Act, it reads — SNC-Lavalin was charged with one count of corruption under sect. 3(1)(b) of the act, along with one count of fraud — “the prosecutor must not consider,” inter alia, “the national economic interest.” (This is not only a matter of domestic law. It is a word for word transposition of our obligations under the OECD Convention on Combating Bribery of Foreign Public Officials.)
So its defenders’ stated rationale for sparing SNC-Lavalin from prosecution — the dire consequences for jobs and the economy should the company be convicted, and presumably collapse — is not only economically suspect (SNC-Lavalin is not the only employer in the construction industry, nor would the work for which it has contracted disappear just because the company did) and morally dubious. It’s expressly precluded in law.
The DPP was not only within her rights, then, to refuse to negotiate a remediation agreement. She would arguably be breaking the law if she did.
Suppose that were not true. Could the attorney general order her to? That, too, is far from clear. Under the law the attorney general is required to sign off on a prosecutor’s decision to negotiate a remediation agreement. But the prosecutor needs no such consent to decline to negotiate; neither is there anything in the law that says the attorney general can order her to.
This is not contradicted, as another lawyer friend points out, by that much-quoted provision in the Director of Public Prosecutions Act — the one obliging the attorney general to make public any order “with respect to the initiation or conduct” of “any specific prosecution.” Whatever limit that places on the AG’s ability to influence the “conduct” of a prosecution, it would seem to grant no power to stop one after it has started, still less to order a remediation agreement be pursued in its place.
If the attorney general can’t instruct the DPP to go easy on SNC-Lavalin, and if the DPP declines to do so on her own, what on earth was there for the prime minister and the attorney general to discuss? This is especially pertinent in light of the general obligation on all public office-holders, as described in the federal Conflict of Interest and Post-Employment Code: that they should not merely obey the law, but “perform their official duties and arrange their private affairs in a manner that will bear the closest scrutiny.”
The public should not be put in the position of having to parse the precise meaning of the prime minister’s words, or those of his staff, to know if they stayed within legal or ethical bounds. Whether they crossed the line, or just tiptoed up to it, isn’t really the issue: they shouldn’t have come anywhere near it.