AL­LE­GA­TIONS OF COVERUP

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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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