Justice system may offer twist in SNC scandal
Charges could get dropped over excessive delays
The SNC-Lavalin affair has dragged just about every opinion imaginable out into the public square, on topics as diverse as corporate greed, reconciliation with First Nations, sexism, prosecutorial independence and Quebec’s relations with the Rest of Canada. But in the debate over continuing with the prosecution of SNC-Lavalin versus offering it a deferred prosecution agreement (DPA), one obvious question has gone mostly unasked: Why are we going after SNCLavalin for its Libya-related transgressions at all, as opposed to the individuals who committed them?
The primary concern among DPA supporters is that innocent people’s jobs not be impacted. There are 9,000 of those jobs at stake, we have heard (though CBC News helpfully tore the claim to shreds). Those supporters insist Lavalin has cleaned house since its various corruption shenanigans both at home and abroad.
“Under (CEO Neil) Bruce, SNC had essentially become a new company,” Eric Reguly wrote in Report on Business Magazine last year. “The top management had been entirely replaced, as had the board of directors.” Bruce’s predecessor, Robert Card, instituted “a top-to-bottom ethics and compliance fix-it job, which included banning the company from doing business in countries that occupied the bottom ranks of Transparency International’s corruption rankings.”
These are precisely the sorts of things companies are supposed to do to earn a DPA. (Bruce was “enraged” when it wasn’t forthcoming, Reguly reported.) And since they’ve (supposedly) done them, one might even ask why bother with the DPA? The presumably gigantic fine it would entail is less a penalty than being barred from bidding on federal contracts for 10 years, which Lavalin faces with a criminal conviction. But it’s still punishing a (supposedly) squeaky-clean company for a bunch of stuff done by human beings who aren’t there anymore.
Corporate personhood may be a useful fiction, but it’s a fiction nonetheless: SNC-Lavalin couldn’t bribe Moammar Ghadafi or buy his son a sexy night on the town in Montreal, or do anything else, by itself. Human beings had to.
There is an interesting body of legal scholarship on the relative merits of charging companies as corporate entities and charging the people who work for those companies who do the dastardly deeds. Most seem to think both, ultimately, are important. There is a “tendency for corporate penalties to fall most heavily on the least culpable,” Georgetown law professor John Coffee argues in a widely quoted 1981 paper: you can argue stockholders don’t deserve their ill-gotten equity, but it’s much harder to argue rankand-file employees and, ultimately, consumers deserve to pay for corporate malfeasance.
On the other hand, University of Michigan law professor David Uhlmann argues in a 2016 paper, “criminal prosecution of corporations upholds the rule of law, validates the choices of law-abiding companies, and promotes accountability. … When corporations face no consequences for their criminal behavior, we minimize their lawlessness, and increase cynicism about the outsized influence of corporations.”
No kidding. And in a country like Canada, not to say a province like Quebec, it’s safe to say these lines of accountability and trust get severely tangled. Once a government deems any company “too big to fail,” whether it’s because of political donations or connections, or because its pension plan is heavily invested, or because it has acquired a creepy semi-sacred status among otherwise normal people — or indeed, because of an alleged 9,000 jobs — all these nice theories about the rule of law break down. That’s what we’ve been witnessing.
But there’s an even bigger breakdown going on that’s received far less attention. Employees allegedly behind Lavalin’s Libyan capers were criminally charged as well. Between them, former vicepresident Sami Bebawi and former controller Stéphane Roy faced charges including defrauding the Libyan state, money laundering, violating UN sanctions, bribing Saadi Gadhafi — Moammar’s soccer-playing, Montreal-enjoying third son — and trying to extract him from Libya once it all kicked off in 2011.
Those charges were laid in February 2014. Last month, some against Bebawi and all against Roy were dismissed because the Crown didn’t manage to bring them to trial in five blessed years. In a scathing decision, Judge Patricia Compagnone characterized the Crown’s behaviour as a perfect illustration of the “culture of complacency” and the “culture of delays” the Supreme Court had assailed in its landmark 2016 Jordan decision, which established empirical standards for the Charter right “to be tried within a reasonable time.”
It is an ever-more-curious mystery that Canada’s comprehensively screwed-up justice system never rises to the level of political crisis. In the first year after the Jordan decision alone, some 200 cases were thrown out on grounds of excessive delays. Some of the accused make the Friends of Moammar look like saints. They include alleged murderers, child molesters and drunk drivers.
The charges against SNCLavalin were laid in February 2015. More than four years later, we’re still fighting over whether to pursue them — and not, it must be said, in a way that makes us look like a terribly serious country. How nauseatingly fitting it would be if a court threw the case out before the feds even got a chance to decide what to do with it.