Court quashes SNC Bid to Avoid criminal trial

FEDERAL COURT STRIKES DOWN SNC-LAVALIN’S BID FOR REMEDIATION AGREEMENT

The Federal Court of Canada had rejected SNC-Lavalin’s request to overrule the director of public prosecutions and allow the Quebec engineering firm to avoid a criminal trial.

On Friday, the court ruled that the prosecutor’s decision not to negotiate a remediation agreement with the company “clearly falls within the ambit of prosecutorial discretion” and that SNCLavalin’s bid to have it overturned had “no reasonable prospect of success.”

The ruling comes as the government reels from allegations that Prime Minister Justin Trudeau and officials in his office inappropriately pressured former attorney general Jody Wilson-Raybould to order the director of public prosecutions to negotiate a deferred prosecution agreement (DPA) with SNC-Lavalin, out of concern for the company’s 9,000 Canadian jobs and for the Liberals’ re-election prospects. Wilson-Raybould refused, and was shuffled out of the Justice portfolio and into Veterans Affairs in January. She resigned from cabinet last month, and has since detailed to a parliamentary justice committee what she called a “consistent and sustained effort by many people within the government” to make her change her mind.

Trudeau insists no inappropriate pressure was applied, and that he believed Wilson-Raybould was open to hearing new arguments about the decision even after she’d made up her mind not to intervene with public prosecutor Kathleen Roussel.

“As I’ve said from the very beginning, our government will always look to try and protect jobs … but in the specific question of a DPA, that is the attorney general’s decision to make,” he told reporters in Iqaluit on Friday.

Asked why he didn’t apologize to Wilson-Raybould, Trudeau said: “I do regret it happened, clearly, and I have made a commitment to learn from it.”

It is still possible the company could get a deferred prosecution agreement. Attorney General David Lametti, who replaced WilsonRaybould in January, has not ruled out the possibility that he might overrule the director of public prosecutions.

In her decision Friday, Justice Catherine Kane ruled that prosecutors’ decisions are only subject to judicial review in cases of abuse of process, which SNC-Lavalin was not alleging. “The decision at issue — whether to invite an organization to enter into negotiations for a remediation agreement — clearly falls within the ambit of prosecutorial discretion and the nature of decisions that prosecutors are regularly called to make in criminal proceedings,” she wrote.

Jennifer Quaid, an assistant professor of law at the University of Ottawa, said the ruling is what she’d expected. “Any other decision would have been legally like a bombshell,” she said.

SNC-Lavalin filed an application for judicial review in October, 10 days after receiving a letter from the Public Prosecution Service stating that “an invitation to negotiate a remediation agreement is not appropriate in this case.” The company argued in part that Roussel’s decision was “based on an unreasonable exercise of her discretion,” and that the company was “in the dark” as to why a remediation agreement wasn’t on the table. The public prosecutor argued the application “was bereft of any possibility of success and should be struck.”

The government introduced remediation agreements as part of the 2018 budget. They are intended to hold companies accountable for economic crimes without making innocent employees and pensioners suffer the consequences of a criminal trial.

SNC-Lavalin is charged with offering Libyan government officials $48 million in bribes between 2001 and 2011, and would face a 10-year ban on federal contracts if convicted.

Roussel first told the company on Sept. 4 that there would be no remediation agreement. Her Oct. 9 letter to SNC-Lavalin makes clear that the company contacted her four times after that to provide further information, but that her decision remained unchanged. This point was central to the testimony of former principal secretary Gerald Butts and Privy Council Clerk Michael Wernick before the justice committee this week. They suggested that WilsonRaybould should have been willing to revisit her decision based on new evidence. The information Wilson-Raybould and Roussel used to make their decisions has not been made public.