A STINGING RULING AGAINST SNC-LAVALIN MAKES CLEAR THE IMPORTANCE OF THE ATTORNEY GENERAL’S INDEPENDENCE AND THE NEED FOR PROSECUTORS TO OPERATE FREE OF POLITICAL INTERFERENCE.
Federal court’s stinging decision backs prosecutor
Scorecard: Director of Public Prosecutions (DPP) Kathleen Roussel and deposed attorney general Jody Wilson-Raybould, who so resolutely backed her, 1, SNC-Lavalin 0.
That’s the bottom line of a stinging Federal Court of Canada decision released Friday.
It’s a major victory for the DPP and Wilson-Raybould, affirming the importance and need both for the attorney general’s independence and the obligation of prosecutors to operate, and here Federal Court Judge Catherine Kane quoted from an earlier Supreme Court of Canada decision, “without fear of judicial or political interference …”
The 89-page decision granted Roussel’s motion to strike (or dismiss) SNC-Lavalin’s application for judicial review of Roussel’s decision not to grant the global engineering and construction company a deferred prosecution agreement, or DPA.
As the country knows well by now, it was Roussel’s decision last Sept. 4 (reiterated to SNC on Oct. 9) to continue prosecuting SNCLavalin on fraud and bribery charges and not invite the company to the negotiating table to work out a deal that led to the imbroglio that has enveloped the office of Prime Minister Justin Trudeau.
It was that decision the company sought to overturn at the Federal Court; it also wanted Roussel to be ordered to invite SNC to the table.
SNC had been lobbying for DPAs to be brought to Canada since 2015, just months after the company was charged by the RCMP with bribing a foreign public official (under the Corruption of Foreign Public Officials Act) and fraud (under the Criminal Code of Canada) and a few months before the Trudeau government was elected.
The great advantage of DPAs to troubled companies is that it spares them the possibility of a criminal conviction and thus the potential of being “debarred” from applying for getting lucrative federal government work.
The RCMP alleges that between 2001 and 2011, SNC-Lavalin and two of its wholly owned subsidiaries paid almost $48 million to Libyan public officials to influence government decisions on contracts.
Happily enough for SNC, the government held consultations in late 2017 and the following year quietly introduced the necessary Criminal Code amendments at the bottom of a huge budget implementation bill.
Unhappily for SNC, the legislation specifically says that where a company is alleged to have breached the Corruption of Foreign Officials Act, as SNC is, “the prosecutor is not to consider the national economic interest” in making her decision.
In other words, the “protecting Canadian jobs” mantra adopted by the PM, Clerk of the Privy Council Michael Wernick and the PM’s former principal secretary, Gerry Butts, as justification for pressuring Wilson-Raybould to overrule Roussel and invite SNC to the table, is verboten by law in the current case. Either someone in the government was asleep at the switch when the legislation was written — it appears to have been written for SNC and yet quickly excluded it by dint of the bribery-of-foreign-officials prohibition — or, far more likely, the government never imagined an AG would put principle over the crass political #MeFirst interests of Team Liberal.
Gents, meet Mesdames Roussel and Wilson-Raybould.
In any case, at the heart of the matter before Justice Kane was SNC’s argument that when Roussel (and later, JWR) made her decision, it was of an administrative nature, not an exercise of prosecutorial discretion.
This, Kane determined, is not so at all.
Deciding to continue with the prosecution of SNC was clearly Roussel using her discretion, and it is settled law that prosecutorial discretion is not subject to judicial review except in rare cases, and further, that it goes far and wide and includes all manner of things — from the decision to pursue a dangerous offender application to the decision to negotiate a plea to the decision to launch an appeal.
If it wasn’t, as lawyers for Roussel argued, “the administration of criminal law would be paralyzed.”
Again, Kane quoted from some of the well-settled law, among the cases a Supreme Court decision that says the “quasi-judicial function of the attorney general cannot be subjected to interference from parties who are not as competent to consider the various factors in making a decision to prosecute …” and an Ontario Court of Appeal decision that says, “if the attorney general must give a hearing to anyone who might be affected every time he proposes to exercise the discretion conferred upon him by virtue of his office the administration of criminal justice would come to a standstill.”
It’s a smart and cogent decision, and the judge obviously seriously considered the arguments of SNC lawyers.
But in the end, though the bar to dismiss a judicial review application is high, Roussel’s lawyers met it, and the judge struck the application and awarded the DPP her costs.
As Roussel’s lawyers noted, the act creating her office was meant “to be at arm’s length from the government.”
They pointed to excerpts from the Parliamentary debates “where the government (the Stephen Harper government, of course) explained that the purpose of the DPP Act is to ensure that there is no appearance of political interference with the attorney general in the role of prosecutor …”
Justin Trudeau, Gerry Butts, Michael Wernick et al were trying to interfere with the DPP.
As Jeffrey Ayotte and Mike Gunsolus, lawyers from Peterborough, Ont., said in an internal discussion paper last week (they sent me a copy and gave me the OK to use it), “it appears Mr. Trudeau may have committed the offence of ‘counselling to commit an offence not committed’ when he encouraged Ms. Wilson-Raybould to consider the national economic interest …”