SNC-Lavalin loses legal bid to avoid criminal prosecution
Federal Court rejects company’s request for review of decision against plea bargain
OTTAWA — The spotlight in the SNC-Lavalin affair has shifted to rookie Justice Minister David Lametti now that a court has rejected the company’s bid to force the public prosecutor to pursue an alternative to criminal proceedings.
In a ruling Friday, the Federal Court of Canada threw out the Montreal engineering giant’s plea for judicial review of a decision by the director of public prosecutions, Kathleen Roussel, to not invite the company to negotiate a remediation agreement.
Remediation agreements are a new legal tool in corporate-corruption cases that force a company to pay stiff restitution but avoid the risk of a criminal conviction that could threaten its financial viability and hurt innocent employees, shareholders and suppliers.
SNC-Lavalin faces accusations it paid bribes to get government business in Libya — a criminal case that has triggered a political storm and cost Prime Minister Justin Trudeau two cabinet ministers and his most trusted adviser.
Lametti’s predecessor as justice minister and attorney general, Jody Wilson-Raybould, has accused Trudeau, his staff and bureaucrats of hounding her last fall to use her legal authority to overrule Roussel and direct the prosecutor to negotiate a remediation agreement with SNC-Lavalin. Wilson-Raybould has said the pressure was “inappropriate” but not illegal.
Asked about the court ruling Friday after an event in Iqaluit, Trudeau repeated his mantra that protecting SNC-Lavalin jobs is important but threw the hot potato of whether to order a remediation agreement in this case into Lametti’s lap.
“As I’ve said from the very beginning, that is a decision for the attorney general to make alone,” he said.
Roussel’s office informed SNCLavalin last Sept. 4 and in writing on Oct. 9 that a remediation agreement would be inappropriate in this case. The company asked the Federal Court to order Roussel to negotiate an agreement.
In her ruling Friday, Federal Court Justice Catherine Kane said prosecutorial decision-making is not subject to judicial review, except for cases where there is an abuse of process.
“The decision at issue — whether to invite an organization to enter into negotiations for a remediation agreement — clearly falls within the ambit of prosecutorial discretion and the nature of decisions that prosecutors are regularly called to make in criminal proceedings,” she wrote.
Wilson-Raybould has said she believes she was shuffled from Justice to Veterans Affairs in January as punishment for refusing to intervene in the case. She resigned from cabinet last month. Close friend and cabinet ally Jane Philpott quit as Treasury Board president this week, citing a loss of confidence in the government’s handling of the SNC-Lavalin affair.
Trudeau tried Thursday to put the political storm behind him, characterizing the rupture with Wilson-Raybould as an “erosion of trust” between her and his office.
Asked Friday why he did not apologize to her or Philpott for his handling of the affair, Trudeau said: “I do regret it happened, clearly, and I have made a commitment to learn from it.”
He said he hadn’t spoken to either ex-minister “in a while” but looks forward to doing so. And he did hold out an olive branch to the former ministers when asked how they can remain in the Liberal caucus and run for the Liberal party in this fall’s election, given their lack of confidence in his leadership.
“I will remind people that we are a party that values diversity of opinions and perspectives . . . . A government and a party that reflects a broad range of perspectives is better able to serve as a strong team.”
For her part, Philpott refused Friday to make any comment on her resignation or her future in the Liberal party. She spoke at an International Women’s Day breakfast at Ottawa city hall, where she began by warning the several hundred attendees they were going to be disappointed if they’d come to hear her talk about the events of the last week.
Conservative Leader Andrew Scheer dodged questions about whether a Tory government would consider instructing Roussel to negotiate a remediation agreement with SNC-Lavalin.
“I can assure you that I would never politically interfere in a criminal court case,” Scheer said after an event in Rosser, Man. “It’s one thing for the government to give different tools to our court system, that happens all the time . . . but then we let the course of justice run its course and we don’t interfere.
“That is a very dark and dangerous path that we do not want to go down as a country.”
The law allows for remediation agreements and permits the attorney general to issue directives to the director of public prosecutions or even to take over a prosecution altogether.
The furor over SNC-Lavalin has engulfed the government for a month and received saturation media coverage, routinely overtaking other Trudeau events and government announcements.
Throughout the political uproar, SNC-Lavalin’s court action has been simmering.
In its Oct. 19 submission to the Federal Court, the company said while the public prosecutor has discretion to decide whether to open negotiations on a remediation agreement, this discretion “is not unfettered and must be exercised reasonably” under the law.
The company said it provided the prosecutor’s office with information showing the objectives of the remediation-agreement law were “easily met,” including details of SNC-Lavalin’s efforts to implement a world-class ethics and compliance program, as well as complete turnovers of the firm’s senior management and board of directors.
The company also cited the “negative impact of the ongoing uncertainty related to the charges” on its business.
In a Jan. 8 response filed with the court, the director of prosecutions said SNC-Lavalin’s argument is “bereft of any possibility of success and should be struck.”
While SNC-Lavalin has the right to be assumed innocent and to a fair trial, it has “no right or entitlement” under common or criminal law to be invited to negotiate a remediation agreement, the director said.
Now that a judge has refused to force the government’s hand, it’s up to Lametti to decide what to do.