Unpacking the issues fuelling the SNC-Lavalin drama
Can the attorney general intervene in criminal cases? What’s a DPA? Here’s a primer
OTTAWA — Was it direction, or pressure, or nothing at all?
That was a central question in the drama — some would say scandal — that broke out on Parliament Hill this week. The Liberal government was broadsided by allegations that officials in the Prime Minister’s Office, after repeated lobbying by SNC-Lavalin, tried to convince former attorney general Jody Wilson-Raybould to strike a mediation deal instead of pursuing fraud and corruption charges against the Quebec- based engineering giant.
Justin Trudeau was accused by the opposition of suspiciously “legalistic” denials after he repeatedly stated that neither he nor anyone in his office “directed” Wilson-Raybould to intervene in the case.
He repeatedly refused to answer whether there were attempts to influence or pressure her — although Wilson-Raybould’s replacement in the portfolio, along with other Liberal MPs, have since said there was no pressure or influence from political operatives in Trudeau’s office.
Why should you care? To quote from the kiss-off letter that Wilson-Raybould wrote last month when she was reassigned to Veterans’ Affairs: “It is a pillar of our democracy that our system of justice be free from even the perception of political interference.”
There’s a lot to unpack here, so let’s get up to speed. Can the attorney general intervene in federal cases? Yes. Under the Director of Public Prosecutions Act, the attorney general can take over the Crown’s prosecution of criminal cases and direct the federal government’s top prosecutor — the aptly named director of the Prosecution Service of Canada — on how to conduct a case. The act says this is allowed if the attorney general thinks the proceedings at hand “raise questions of public interest.”
But if the attorney general decides to intervene in this way, she must publish her rationale for doing so in the Canada Gazette, a publication that outlines recent actions of the federal government. What about political interference? The government’s accountability rules are clear: prosecutions should be free from “political control, direction and influence.”
There is some room, however, for the attorney general to consult with the prime minister and other cabinet members before intervening in a prosecution, “depending on the complexity or sensitivity of a case,” according to the privy council’s rules for “Open and Accountable Government.”
But the key element is that it’s up to the attorney general to start the consultations, said Ian Brodie, who served as chief of staff to former prime minister Stephen Harper.
“It starts with her. She makes the final decision. There’s nothing in there about the prime minister directing her or anybody else picking up the phone and suggesting she might want to think about something,” Brodie said.
“Any suggestion that there was political interference or political pressure brought to bear on a prosecution decision, that’s got to be answered definitively, right away,” he said.
Gerry Ferguson, a professor at the University of Victoria who wrote a book on global corruption law, said there is a centuries-old tradition that the attorney general’s role as the government’s chief prosecutor needs to be independent from her position as a member of the executive branch at the cabinet table. As such, “it is improper for any other minister to attempt to influence the attorney general in her first role,” he said by email Friday. So what’s the deal with SNC-Lavalin? The multinational corporation faces a slew of corruption and fraud charges that the RCMP laid in 2015. The company is alleged to have doled out millions in bribes to officials in Libya to secure work on government contracts.
In recent months, the company has sought a so-called “deferred prosecution agreement” with the Crown. Such an agreement would halt the criminal trial against the company, and see SNCLavalin agree to a series of conditions that could include the payment of fines and co-operating with authorities.
But in October, the company revealed that government prosecutors decided not to offer a DPA in this case. Since then, it has filed a judicial appeal in federal court, while SNC-Lavalin president Neil Bruce wrote a public letter that said the firm will continue to push for a mediated solution to avoid a criminal trial.
The company has met with government officials nine times in the last six months to discuss “justice and law enforcement,” according to the federal lobbyist registry. Why does SNC-Lavalin want a DPA? The Liberal government introduced DPAs in a 582-page budget bill last year, after it held consultations about the proposal in the fall of 2017.
They have been available in the United States since 1992 and the United Kingdom since 2014.
Ferguson pointed out that DPAs allow companies to avoid convictions, even if they have to agree to facts that could have supported a conviction, as well as to pay financial penalties. That is significant because a conviction for fraud or corruption would bar SNC-Lavalin from bidding on government contracts for 10 years.
Peter MacKay, a former Conservative justice minister, said the Stephen Harper government contemplated introducing DPAs as well. He said the agreements can lead to tough penalties for a company, while avoiding the consequences a criminal conviction would have — including the prohibition from government contracts.
“That’s a death knell for a company,” he said.
Canada’s DPA law came into force in September. But so far, no companies have reached such an agreement with federal prosecutors.