SNC-Lavalin's fight for remediation grinds on

OTTAWA — The SNC-Lavalin affair may have largely disappeared from the political scene, but the battle is quietly raging on in the Federal Court of Appeal between the company and the federal prosecution service.

The Montreal-based engineering firm filed a stack of paperwork in court on Nov. 26 and has another submission due Dec. 20 as the two sides head toward a hearing on whether SNC-Lavalin can put new evidence before the court.

SNC-Lavalin is attempting to use the new evidence to argue that Director of Public Prosecutions Kathleen Roussel conducted an abuse of process in declining to offer the company a chance at a remediation agreement — a measure that would allow SNC-Lavalin to avoid a trial on fraud and bribery charges, and instead admit wrongdoing and negotiate compliance conditions such as a fine.

The company did not allege an abuse of process in its original application to Federal Court, which was tossed by Justice Catherine Kane last March. Kane ruled that Roussel's decision to proceed to trial was proper use of her prosecutorial discretion that's not subject to the court's review — unless there was an abuse of process.

SNC-Lavalin filed an appeal and wants to introduce evidence gathered by the House of Commons justice committee last year, when former attorney general Jody Wilson-Raybould and other key government figures gave public testimony.

Public Prosecutions has filed its own motion asking the court to reject the new evidence, arguing SNC-Lavalin's case is based on speculation and a misunderstanding of the attorney general's role in criminal prosecutions.

The heart of the issue now before the appeal court is the relationship between the elected attorney general and federal prosecutors. In particular, SNCLavalin's argument hinges on whether Roussel wrongfully withheld information from Wilson-Raybould, who agreed with Roussel's decision to take SNC to trial.

In the Nov. 26 court submission, SNC-Lavalin argued Roussel was required to keep Wilson-Raybould fully informed as part of the “checks and balances” built into the legislation governing the federal prosecution service. “The DPP is a creature of statute whose prosecutorial discretion is not unfettered,” the submission said.

Key to the argument is that Roussel wrote Wilson-Raybould a briefing outlining her decision on Sept. 4, 2018. SNC-Lavalin now alleges — based on the justice committee testimony — that Roussel failed to keep WilsonRaybould updated after this, despite agreeing to let SNC-Lavalin submit more information. The company sent that additional information on Sept. 7 and Sept. 17, but was told by Roussel on Oct. 9 that there was still no remediation agreement in the offing.

“The Appellants respectfully submit that the DPP's actions constitute an abuse of process in two ways,” the submission says. “First, by not keeping the former Attorney General appraised of material developments, the DPP circumvented the ‘checks and balances' of the Director of Public Prosecutions Act and shielded her ‘decision' of September 4 from oversight. Second, the DPP's actions demonstrate that she was not dealing with the Appellants in good faith, and had no intention of fairly considering their submissions despite having agreed on September 5 to receive them.”

The DPP, in documents filed last May, argued SNC-Lavalin's allegations in the appeal “purport to be facts but are largely based on speculation and assumption,” and at any rate would not have changed the Federal Court's ruling.

This argument is based on a misapprehension of the role of the attorney general

On the specific allegation that Roussel was required to keep providing information to Wilson-Raybould and wrongfully withheld it, the DPP argued SNC-Lavalin is simply wrong about the attorney general's role.

Unless the attorney general has issued public notice that they are taking over a case or issuing a direction, the DPP makes decisions independently and “the Attorney General does not have a role in specific prosecutions,” the DPP wrote.

Filing deadlines for more submissions have now been set out through March 2020, and could still be extended.