WE DESERVE ANSWERS IN SNC-LAVALIN AFFAIR
No company should be treated as too big to fail, Kerry-Lynne Findlay writes.
The drama unfolding in Ottawa has all the Netflix-worthy elements of a classic Canadian deception: big money at stake, a big Montreal-based company that operates in 50 countries, controversial dealings involving big contracts in India, Libya, Canada and elsewhere, and the federal Liberals yet again favouring special corporate interests to feather their own political nest.
Worldwide, Canada is held in high regard, due in large part to generations of goodwill, upholding the ideals of human dignity, our unique British and French legal heritage, and enforcement of the rule of law. The rule of law means there is one law for all and no one is favoured, especially the powerful and influential at the expense of everyone else.
Canada’s well-deserved reputation is now in jeopardy, as Quebec engineering firm SNC-Lavalin, accused of criminal wrongdoing, appears to be receiving special treatment from the Trudeau government.
Now, the news is swirling about the resignation from cabinet of former justice minister and attorney general Jody Wilson-Raybould. Prime Minister Justin Trudeau said recently: “The government of Canada did its job and to the clear public standards expected of it.”
But Canadians have questions. What are those standards? What are the criminal charges against SNC-Lavalin? What is a remediation agreement? Why do the Conservative and NDP members on the House of Commons Standing Committee on Justice want to hear testimony from all involved under oath? Why is Opposition leader Andrew Scheer demanding disclosure of information and preservation of documents?
As an experienced lawyer and former cabinet minister, I can provide answers to some of these questions. The larger questions, however, must be answered by Trudeau, his cabinet colleagues and his staff.
The standards have been set by the Supreme Court of Canada. Attorneys general must act independently of political pressures when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.
Justice Marc Rosenberg further summarized them in the “Shawcross” doctrine. Prosecution decisions taken by an attorney general require her to take into account the public interest, allow for her consultation with cabinet colleagues (cov- ered by cabinet confidentiality in any event), but draws the line at taking cabinet or prime minister direction, and specifically does not allow government to put any pressure on an attorney general for political reasons.
The criminal charges against SNC-Lavalin and many of its executives go back several years and have included paying up to $160 million in bribes to government officials to obtain contracts in Libya. Similar previous charges were brought regarding a project in Bangladesh. Several company executives and implicated Canadian public servants have already been convicted or pled guilty to corruption offences.
In 2015, charges were laid against the company, and it has publicly claimed the resulting loss of billions of dollars in contracts and share value. If convicted, the company could face a 10-year ban on winning any federal government contracts and a similar ban on any projects financed through the World Bank. What is a remediation agreement? First, although it is now law, I have seen little comment on how this legislation was passed a mere five months ago. When this legislation came into force as part of an omnibus bill, many in Ottawa referred to it as the “SNC-Lavalin bill.”
For the first time, prosecutors may enter into formal agreements with organizations that self-report wrongdoing or stand accused of having committed crimes, as an alternative to prosecution.
These crimes can be serious, such as bribery, money laundering, theft, forgery or fraud. Criminal prosecution is suspended pending agreedupon terms and can result in all charges being stayed.
Published reports assert that SNC-Lavalin had been forcefully lobbying for this change in Canada’s criminal law, which by September 2018 was achieved. In October 2018, however, federal prosecutors told SNC-Lavalin that Canada would not negotiate a remediation agreement with it. The company has sought a judicial review of that decision, keeping all issues alive.
In this context, reports recently surfaced of the Trudeau government “heavily pressuring ” Wilson-Raybould to drop the criminal prosecution in favour of a remediation agreement that could see all charges dropped.
Only those involved know what took place. Was “heavy pressure” applied? What was the nature of that heavy pressure? Who applied the heavy pressure? In what context?
Heavy pressure brought on the attorney general by the PM, or anyone on his behalf, to reverse the prosecution’s earlier decision for political gain would certainly breach the Shawcross doctrine.
Why is this a political issue? SNC-Lavalin employs approximately 9,000 Canadians and is seen by some as one of those companies that is too big to fail. But no company is too big to fail.
If a company fails due to its own corrupt dealings as proven, or pled guilty to, in a fair court process, other employers will come forward to do the work at hand. Indeed, SNC-Lavalin operates in a very competitive industry.
There is no doubt the changes to Canada’s criminal law by the federal Liberal government could benefit the company, but once federal prosecutors refused to offer a remediation agreement, other than judicial review, its only option is for the prosecution to change its mind.
The only person with the authority to direct the prosecution to change its mind is the attorney general.
Canadians deserve answers to this government chaos.
Western Canadians deserve answers as to why the Trudeau government stood by as vibrant, jobcreating, ethical companies in the West were allowed to implode, losing tens of thousands of jobs, while special attention was reserved for a company under criminal suspicion with a long history of questionable business practices, but with close ties to the Liberal government.
The prime minister must answer.
Kerry-Lynne Findlay is a Surrey lawyer and former Canadian Human Rights Tribunal judge who served as parliamentary secretary to the minister of justice from 2011 to 2013. She was the Conservative candidate in the South Surrey-White Rock federal byelection in December.
There is much to show that (Matthew) Begbie was by the standards of his time a man of progressive views and quite sympathetic to First Nations people. In future, delete references to him as a ‘hanging judge.’ Anders Ourom, letter writer
Ethical companies in the West were allowed to implode ... while special attention was reserved for a company under criminal suspicion with a long history of questionable ... practices.