ALLEGATIONS OF COVERUP
Deferred prosecution agreements and remediation are two terms being bandied about in discussions regarding the SNC-Lavalin/Jody Wilson-Raybould scandal over the past week.Many commentators have been almost as critical about these legal tools to hold corporate criminals accountable as they have been on Prime Minister Justin Trudeau’s handling of this affair.Last week, it was alleged that the Prime Minister’s Office improperly pressured Wilson-Raybould to urge the director of public prosecutions to help SNC-Lavalin avoid a traditional prosecution through the courts. If found guilty, the engineering giant could be banned from bidding on federal contracts for 10 years.Wilson-Raybould refused to comply and the opposition and media speculate that is why she was demoted from her post as Canada’s first Indigenous justice minister and attorney general to minister of veterans affairs. Wilson-Raybould resigned from cabinet on Tuesday and is seeking legal counsel on what she can publicly discuss.Critics have been saying that deferred prosecution agreements, DPAs, are little more than “get-out-of-jail-free-cards” or an example of the federal Liberal government pandering to Quebec-based SNC-Lavalin simply to help shady friends avoid going to prison.But corporate law experts say the federal government’s establishment of DPAs, which came into force in Canada on Sept. 19, 2018, was long overdue and much needed.One of the best defences of DPAs, says Lawrence Ritchie, a partner at Toronto law firm Osler, is to protect the employees and shareholders of a large corporation from being punished for the actions of a single individual. In light of the fact that the United States and the United Kingdom both have had these prosecutorial tools at their disposal for years, Canada was at a disadvantage.In the case of SNC-Lavalin — which has a history of corporate criminality and corruption — its 8,600 Canadian employees, many of them considered among the most skilled engineers in the world, don’t deserve to lose their jobs because one of the executives allegedly bribed Libyan officials to win lucrative contracts in that country.“This is not a get-out-ofjail-free card in any way,” said Ritchie.“On the contrary. There are huge reputational risks associated with being investigated and admitting to wrongdoing, which is a precondition to this kind of agreement. What this does is it provides an avenue for a relatively prompt resolution of a matter so that the overseers of the corporation in question can get on with serving the shareholders and stakeholders, including the employees, and not be unfairly delivered a corporate death sentence. That outcome not only hurts the wrongdoers but a lot of innocent people who had nothing to do with the wrongdoing,” said Ritchie, who was reached in his Toronto office on Wednesday.“It’s not appropriate in every case, but to have, like we have for so many years in this country, only a binary set of options of either drop the case or proceed to prosecution, DPAs significantly broaden the options before the prosecution and actually ensures that more criminal activity is prosecuted, not less.”Graham Steele, assistant professor of business law in the Rowe School of Business at Dalhousie University in Halifax, said despite the negative publicity that DPAs are getting of late, “they are not an inherently bad thing.”“There are arguments for and against them but, by and large, I would say they are a useful tool for prosecutors to have,” said Steele, who is a Rhodes Scholar, a lawyer and a former finance minister from 2009 to 2012 in Nova Scotia premier Darrell Dexter’s NDP government.“DPAs have been quite successful in the United States because investigating and prosecuting these transnational corruption cases can be incredibly difficult, time consuming and expensive. The main virtue of DPAs is they encourage corporations to come clean rather than lawyering up and digging in for a fight in the criminal court, which may take many years and which the prosecutors may not be able to prove beyond a reasonable doubt,” said Steele. “They’re a good tool to have as long as they’re used in the public interest.”Suggestions that the remediation law was passed under the cover of darkness — buried in a large budget bill — “is not really true,” said Steele.“There was a discussion paper and the people who follow this stuff knew it was there.”Ritchie agrees, saying “there was a broad consultation process” prior to DPAs becoming law. That the federal Liberals are not crowing about that is surprising.Steele says Canada’s model of DPAs leans more closely to that of the U.K. than the U.S.One of the key features in the U.K. model, which was established in 2014, and Canada’s model is that any agreement must be put before a court for approval. That’s not the case in the U.S.“One of the criticisms in the United States is that some of these negotiations can seem a little bit too cosy and deals are being worked out in backrooms, whereas in Canada, it goes before a judge who’s asked to check that all of the conditions have been met and they appear to be in the public interest,” said Steele.Who initiates the discussion about pursuing a DPA is clearly delineated in the Criminal Code, Section 715.32 (1).“The attorney general has to sign off on a DPA, but nowhere in the law is it contemplated that the attorney general would be the one who would initiate the DPA or even lean on the prosecutor to initiate the DPA,” said Steele.“If a prosecutor got that kind of a call they would have to tell the attorney general to ‘buzz off,’ that it is not appropriate for them to call.“Just based on what I’ve seen so far, it sounds like the attorney general knew her role,” added Steele.In other words, DPAs or remediation make for good law. As for how the PMO has treated Wilson-Raybould, that’s another issue entirely.
Prime Minister Justin Trudeau greets Jody Wilson-Raybould as she was sworn in as Veterans Affairs minister on Jan. 14. She resigned earlier this week over the SNC-Lavelin scandal and is seeking legal advice.
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