A judge dismisses Quebec firm’s latest attempt to halt its criminal corruption trial,
Firm had fought decision to reject mediation on bribery and fraud charges
In a ringing endorsement of the independence of Canada’s attorney general and the public prosecution service, a Federal Court judge on Friday dismissed SNC-Lavalin’s latest attempt to halt its criminal corruption trial.
“The independence of the attorney general is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched,” wrote Justice Catherine Kane.
“The principle of independence requires that the attorney general act independently of political pressures from government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review,” she said.
Kane, who was a former justice department lawyer before being named to the federal court, pointed to several rulings by the Supreme Court of Canada that has long upheld prosecutorial discretion as a broad power and a constitutional principle.
It cannot be second-guessed by courts or political actors, unless there is evidence of an “abuse of process,” which was not argued by SNC-Lavalin, she observed.
“Courts have no supervisory role with respect to decisions made by prosecutors in the exercise of their discretion,” Kane wrote in her 89-page ruling.
The decision is a blow to SNCLavalin Inc.
The Quebec engineering and construction company had challenged a Sept. 4 decision by Kathleen Roussel, the director of public prosecutions, to reject a mediated settlement of bribery and fraud charges under a brand new law.
Her decision was backed by former attorney general Jody Wilson-Raybould.
SNC-Lavalin is at the heart of a political scandal in Ottawa after Wilson-Raybould revealed she resisted pressure by the prime minister and his officials to halt the criminal proceedings and direct prosecutors to cut a deal with the company.
In theory, the ruling, if it is not appealed, means a trial of the Quebec engineering and construction giant — now in the preliminary inquiry stages — will go ahead.
However, it is possible that SNC-Lavalin might still get what it wants even without appealing.
Prime Minister Justin Trudeau replaced Wilson-Raybould in January with a Mon- treal MP, David Lametti, as attorney general, and an attorney general has the power to overrule the director of public prosecutions — as long as reasons are published.
Lametti has said that under the 2018 law that created the new legal regime creating remediation agreements in cases of white-collar crime, “that possibility does exist.”
Also called deferred prosecution agreements, or DPAs, the deals allow criminal proceedings to be halted, with no conviction registered, in exchange for an admission of wrongdoing, a hefty fine, and outside oversight of a company’s ethical compliance.
Lametti’s spokesperson, Celia Canon, declined comment Friday.
A spokesperson for the prosecution service said neither Roussel nor the organization would comment on the ruling.
SNC-Lavalin did not indicate Friday whether it would appeal, however through a spokesperson it expressed “disappointment.”
Company spokesperson Nicolas Ryan said SNC-Lavalin had hoped its court challenge of a Sept. 4 decision “would elicit the reasons for the decision taken by” Roussel.
“Our objective was to negotiate a remediation agreement that would have been both in the public interest and in the interest of our innocent stakeholders: our employees, customers, shareholders and pensioners.
“SNC-Lavalin will vigorously defend itself against the charges in court if no remediation agreement is possible.”
SNC-Lavalin faces two charges of bribery and fraud connected to payments made between 2001 and 2011 to the Libyan regime of Moammar Gadhafi. The company was charged in 2015.
But Justice Kane made clear neither the criminal code nor jurisprudence requires prosecutors to provide reasons for why they do or don’t pursue charges, stay proceedings or seek alternative measures to criminal trials.
“The law is clear that prosecutorial discretion is not subject to judicial review, except for abuse of process,” Kane wrote in an 89-page ruling.
Trudeau, in Iqaluit, was asked if he still believes a DPA or deferred prosecution agreement is the right way to address the criminal case.
“As I’ve said from the very beginning, our government will always look to try and protect jobs, to create good jobs, to create a growing economy that works for the middle class,” the prime minister said.
“But in this specific question of the DPA that is the attorney general’s to make. That is what I have been consistent on for many months, and the attorney general will make that decision.”
The court ruling is a big boost to opposition critics of the Trudeau government’s attempt to sway Wilson-Raybould into granting the company’s wish to avoid a criminal conviction.
The Conservative party leapt on the ruling, saying “if the Liberals wanted a second legal opinion, the Federal Court just gave them one.”
SNC-Lavalin has said it could move the company’s headquarters out of Canada if convicted and barred from federal contracts.
Kane dismissed SNC-Lavalin’s arguments, and ruled the federal prosecution service is not an administrative body, and deferred prosecution agreements or DPAs are not a “parallel process” to a criminal prosecution.