Prime Minister Justin Trudeau’s government remains in hot water over SNC-Lavalin. Even anti-bribery officials from the Organisation for Economic Co-operation and Development (OECD) are “concerned” and watching the situation.
But the controversy has resulted in some misinterpretations of the legal mechanism at its heart: Deferred prosecution agreements, known as DPAs.
Jody Wilson-Raybould is a career prosecutor who has devoted her life to justice. It’s reassuring that the former attorney general testified nothing illegal happened on the SNC-Lavalin file, yet she provided details of 10 instances she described as “consistent and sustained effort” of “inappropriate pressure” to “politically interfere” with her prosecutorial independence in the matter.
In recent days, Wilson-Raybould has also said the SNC-Lavalin affair has served as a “wake-up call” that’s inspired her to push to ensure there’s respect for the rule of law and prosecutorial independence.
Prosecutorial independence is an unassailable tenet of Canadian democracy, as is judicial independence. Any attempt to wilfully interfere in either would be grave.
But it’s important to understand how the new DPA regime works.
Will not open the floodgates
The raison d'être of Canada’s new DPA law is to fight corporate impunity. The law was passed in 2018, after years of discussion and a months-long public consultation in 2017 in which more than 340 stakeholders participated, including those from SNC-Lavalin.
In 2015, the Globe and Mail — which broke the news of Wilson-Raybould’s allegations — argued that Canada needed a DPA regime to efficiently fight corporate crime and keep in step with other OECD countries.
In Canada, a DPA regime has been supported because of the following downsides of prosecution:
- Corporate convictions are difficult to achieve.
- Corporate prosecutions go on for years, are expensive to taxpayers and have uncertain outcomes.
- When corporations are fighting charges or are convicted, too often innocent parties end up disproportionately suffering by losing jobs or pensions or contracts.
- Canada can lose out economically if a corporation is prevented from bidding on domestic or international contracts or goes bankrupt.
These criteria must be balanced against the nature of the crimes, the impact upon victims and the public interest in fighting corporate crime.
Avoiding lengthy trials
Canada’s DPA regime seeks to avoid lengthy trials and skip ahead to an admission of guilt by the corporation. Ideally, the corporation voluntarily discloses wrongdoing. Then a series of steps follow.
First, a prosecutor decides if it’s appropriate to invite the corporation to negotiate a DPA. Second, the attorney general must approve the DPA. Third, Canada is unique in that it requires court approval of the DPA and also allows the court to impose any conditions it deems fit, including amending the terms of the agreement. In making its decision, the court weighs factors including public interest, impact on victims and innocent parties.
The court approval safeguard in Canada — not to mention the prerequisite attorney general approval — is aimed at preventing any concerns corporations are flouting the law.
If a DPA is approved, the accused corporation admits guilt, pays hefty fines in proportion to the crime (in the tens of millions in some cases), pays the Crown’s costs, forfeits gains from the crimes, makes reparations to victims, including those overseas, and agrees to strict new corporate governance rules to be reviewed by an independent monitor.
If the corporation violates the DPA, prosecution is back on the table — hence the word deferred — and the corporation faces a criminal trial.
A DPA is never available, however, if the prosecutor believes the corporation’s alleged crimes resulted in death, serious bodily harm or terrorism. Furthermore, if the corporation is charged under Section 3 of the Foreign Corrupt Officials Act (FCOA), the prosecutor cannot consider the national economic interest in deciding whether to negotiate a DPA.
Undoubtedly, the director of the Public Prosecution Service of Canada and the attorney general would have considered all the above factors. And ultimately, as attorney general, Wilson-Raybould had the final say on whether to negotiate a DPA.
Gerald Butts, Trudeau’s former principal secretary, testified that the PMO believed that the final decision was the attorney general’s, and that there was no intention to interfere.
But Butts added that he and others believed Wilson-Raybould could change her mind up until conviction. This assertion was ridiculed by commentators, yet the DPA legislation supports that interpretation.
The new legislation clearly states that if a DPA is negotiated, then the prosecutor can stay any ongoing proceedings. In other words, if a criminal trial has already started, the prosecutor can intervene, halt or defer it due to the DPA.
Butts also testified the Department of Justice had suggested an outside opinion should be pursued, which is how the names of retired Supreme Court Justices arose amid the controversy.
Butts’ testimony, in short, was that there was no intention to interfere, but only to ensure that no stones had been left unturned in this new DPA environment, which is why a “second opinion” was suggested.
Given that they were dealing with Wilson-Raybould, a one-time prosecutor and the justice minister who ushered in the new DPA legislation, it’s unfortunate no one in the PMO stopped to think that she might fully understand the law.
‘Strongly advise against it’
Wilson-Raybould testified that during a conversation in September 2018 when Trudeau reportedly mentioned the upcoming Quebec election, she asked him directly if he was interfering with her decision as attorney general, and if so she would “strongly advise against.”
It’s not implausible that a politician would look to help their constituents, and that a prime minister would seek to protect the national economic interest, regardless of party.
Subsequently, there has been clarification from the PMO that the concern in September and throughout the fall was for Canada’s national economic interests, including jobs and revenues.
Trudeau’s caucus, and ultimately Canadians, will decide his political fate as the SNC-Lavalin saga continues. But unless some new evidence is unveiled, it seems that the PMO and staff genuinely believed they were not interfering.
In the meantime, there are some broader questions for Canadians to contemplate.
Despite the national economic interest, if we are serious about stamping out corporate crime, is it time we stopped giving corporations options rarely available to individuals?
It may also be time to revisit the wisdom of having one person hold the attorney general portfolio, which requires vigilant independence from political concerns, and the job of justice minister, which requires by necessity a cabinet team player with political concerns.
This story has been updated to clarify that Canadian courts must approve all deferred prosecution agreements, but the court can impose any conditions on the DPA that it deems fit — including amending its terms. At this time, other OECD countries that use DPAs have more limited roles for courts.