LIBERALS SAY THEY ARE JUST TRYING TO PROTECT JOBS

Criminal Code forbids certain interference

In the last week, the Liberal government have been arguing strongly that their actions on Snc-lavalin were motivated solely by a desire to protect jobs.

“We are always going to stand up for good jobs,” Prime Minister Justin Trudeau said at a Monday press conference in P.E.I. Five times before the House of Commons justice committee on Wednesday, former prime minister adviser Gerald Butts said his actions were motivated by the threat of job losses.

“When 9,000 people’s jobs are at stake, it is a public policy problem of the highest order,” Butts said.

But this point, more than any other, may be bolstering the case that Trudeau and his staff strayed outside the law in pressuring former attorney general Jody WilsonRaybould to defer charges against Snc-lavalin.

Under section 715.32(3) of the Criminal Code, prosecutors are forbidden to consider the “national economic interest” in deciding whether to grant certain deferred prosecution agreements, including the one that was being sought for Snc-lavalin. According to Jody WilsonRaybould’s sworn testimony last Wednesday, she was explicitly told to seek a DPA for Snc-lavalin because of the potential “jobs lost.”

“The prime minister asked me to help out to find a solution here for SNC, citing that if there is no DPA, there would be many jobs lost and that SNC would move from Montreal,” Wilson-raybould said.

The “national economic interests” measure is quite new to the Criminal Code and was introduced by Trudeau’s own government. The specific text comes from the OECD Anti-bribery Convention, which has been signed and ratified by Canada — and for which compliance is monitored by the OECD.

As a result, any contravention of 715.32(3) may not just constitute a breach of a Criminal Code provision, but of Canadian participation in an international agreement that is specifically designed to quash judicial favouritism of a country’s own corporations.

“It does seem remarkably tone-deaf on the part of the government if they really were harping (on Wilson-raybould) to this extent, knowing full well what the law says,” said Jennifer Quaid, an expert on corporate criminal liability at the University of Ottawa.

If the OECD determined that Canada was making prosecutorial decisions for economic reasons “we would risk that Canadian companies would not get the benefit of equivalent provisions in other OECD countries, chiefly the U.S. and the U.K.,” she said.

The section is only meant to govern the actions of prosecutors and doesn’ t prescribe any fines or jail time if the guidelines aren’t followed. If a prosecutor is found to have granted a deferred prosecution agreement due to the “national economic interest,” the worst outcome is that the agree- ment would be invalidated by a judge.

But a case could be made that Trudeau might have strayed into unlawful territory by telling Wilson-raybould to effectively act outside Criminal Code guidelines.

“Knowingly counselling a prosecutor to violate his/ her legal duties could be considered an attempt to obstruct justice, which is an offence under the Criminal Code,” said Gerry Ferguson, a distinguished professor of law at the University of Victoria.

The Criminal Code also sets out possible jail terms for anyone who “contravenes an Act of Parliament.”

“It may not violate the Criminal Code, but it violates the rule of law,” said University of British Columbia law professor Mary Ellen TurpelLafond, noting that WilsonRaybould appears to have been counselled to consider something “explicitly prohibited.”

“You’re trying to influence (Wilson-raybould) to make a decision based on a factor that has already been taken off the table.”

Given its newness, the “national economic interests” provision has never been tested before a court and there are a host of possible defences available to Trudeau and his staff.

“The section outlines what factors a prosecutor cannot consider in mak-

(TRUDEAU) ASKED ME TO HELP FIND OUT A SOLUTION HERE FOR SNC.

ing their decision, but does not cover what information other people can put before them,” said constitutional lawyer Nicolas Rouleau.

Adding to the complication is that the Canadian Minister of Justice and Attorney General is the same person. If Trudeau had been talking about Snc-lavalin job losses to Wilson-raybould the justice minister, nothing unseemly would have been done. It only starts to become questionable if he’s asking WilsonRaybould as the country’s top prosecutor to think about job losses.

It could also be argued that trying to protect jobs isn’t an economic interest so much as a social one. In a recent column in ipolitics, constitutional scholar Errol Mendes wrote that while Snc-lavalin charges cannot be deferred for economic reasons, “the huge personal damage to innocents such as employees from an implosion of the company can legitimately be viewed as a non-economic consideration.”

At the very least, Trudeau could argue that the 3,400 Snc-lavalin jobs in Quebec are a regional concern, and don’t technically qualify as a “national economic interest.”

Quaid calls Trudeau’s action “very odd” given the substance of 715.32(3), but does not see enough grounds for an obstruction of justice charge.

“The sanction here is political, not criminal,” she said. “I could not see a prosecutor wanting to bring those charges to trial.”