The best-laid plans of Snc-lavalin
Lobbied hard, to no avail, to avoid prosecution
Iam a newcomer to the Snc-lavalin/jody Wilson-raybould/prime Minister Justin Trudeau/ Gerald Butts imbroglio, having just returned from a holiday in Florida, where all those weary of being hectored about climate change by the aforementioned Mr. Butts go to change climates.
With that said, some observations.
At the very heart of the matter, of course, are the charges faced by Snclavalin, a Montreal-based global engineering and construction firm with about 50,000 employees worldwide, and two of its wholly owned subsidiaries.
The charges the companies face — as opposed to those some of its former senior executives face or have faced — are bribing a foreign public official (under the Corruption of Foreign Public Officials Act) and fraud (under the Criminal Code of Canada).
The offences are alleged to have occurred between 2001 and 2011 in relation to SNC construction contracts in Libya; the charges were laid on Feb. 19, 2015.
The RCMP alleges the companies paid almost $48 million to Libyan public officials to influence government decisions and allegedly defrauded Libyan organizations of about another $130 million.
Publicly available documents at the Federal Court of Canada and elsewhere make it obvious that Snc-lavalin from virtually the moment the charges were laid was putting if not all, then most, of its eggs in one basket — the hope of what’s often called a “deferred prosecution agreement” (DPA). Former Snclavalin CEO Robert Card mentioned such agreements favourably publicly as early as May of 2015, even though DPAS weren’t even available in Canada at the time.
The company ramped up its lobbying of government officials — the Globe and Mail has reported that in 2017, company representatives met government officials and MPS more than 50 times, including 14 visits with staff in Prime Minister Justin Trudeau’s office.
And happily enough, in the fall of that year, the government launched brief consultations on DPAS, in Canada called “remediation agreements.”
The great advantage of DPAS to corporations is that it allows them to negotiate a resolution to a criminal prosecution without the unpleasantness of an admission of guilt — or the potential “disbarment” from doing business with the federal government for as long as 10 years.
By February of last year, the agreements were in the budget, the Criminal Code amendments were enacted in June and came into effect on Sept. 21.
SNC was all but slavering with eagerness. According to Federal Court documents, the company contacted lawyers at the Public Prosecution Service in April, months before the legislation even passed.
For the next three months, lawyers for SNC said in the documents, the company handed over all sorts of information, significantly that since 2012, when the events in Libya first came to light, Snc-lavalin had implemented “a world-class ethics and compliance program,” completely replaced its senior management and board of directors, and dismissed “senior officers who could be considered as having been even remotely associated” with the unfortunate Libya activities.
It wanted a damn invitation to negotiate a damn remediation agreement.
You can imagine the corporate horror when on Oct. 9 last year, Richard Roy, counsel for the director of prosecutions, Kathleen Roussel, wrote SNC lawyers that Roussel had determined “a remediation agreement is not appropriate in this case” and that she was declining to “issue an invitation.”
That seems fair enough: Generally speaking, one doesn’t badger someone else for an invitation, whether to dinner or anything else. One is either invited, or not.
In the email, Roy reminded them Roussel had made her decision on Sept. 4, as they had been told.
What then was the prime minister doing, as he has acknowledged doing, meeting Wilson-raybould about two weeks later, on Sept. 17? Remember, this was the meeting where the PM has said he told the former attorney general the decision — whether she would in effect overrule prosecutors and instruct Roussel to make the deal — was hers to make.
Regardless, within 10 days of the Oct. 9 email, even as SNC’S preliminary hearing on the charges was under way (it appears to be over, but the judge hasn’t issued a decision yet on whether it will proceed to trial), company lawyers were in Federal Court, seeking judicial review of Roussel’s decision and an order compelling her to invite the company to begin negotiating a remediation agreement.
Lawyers for Roussel have since asked the court to strike the application.
(The argument here is really about whether Roussel has the discretion to make the decision she did, and whether her determination is reviewable.)
There are a couple of telling paragraphs in the SNC factum for the judicial review, wherein the lawyers point out that DPAS — not exactly the same as the Canadian regime, but close — have been around in the United States for almost three decades and in the United Kingdom for five.
“According to various public sources,” the lawyers say, “numerous large, multinational businesses, including various competitors (of Snc-lavalin), have availed themselves of deferred prosecution agreements … in other jurisdictions…”
It’s analogous to the arguments for doping in sport: The other guys are doing it, so we have to in order to be competitive.
How about just doing business in countries where companies aren’t expected to bribe and grease their way to lucrative contracts? How about being a little less global? There’s no conscription, after all, for companies to work in places like Libya.