Why Wilson-Raybould Was Right

We may not yet know if Jody Wilson-Raybould was pressured by Justin Trudeau or the PMO to let SNC-Lavalin duck a criminal trial, but there is no doubt that is exactly what the company wanted.

Under a so-called “deferred prosecution agreement” (DPA), the prosecutor stays proceedings against the organization, which in turn pays a fine, offers some form of remediation, and agrees to stronger reporting requirements. If the company meets all the terms of a DPA, charges are dropped.

Much has been said about how a reasonable attorney general might opt for the DPA considering all the harm a criminal conviction of the engineering giant might do to the economies of Quebec and Canada.

But if you read the actual language creating the DPA option, it will become clear why Wilson-Raybould and her director of public prosecutions Kathleen Roussel were not only correct in their decision, but required to make it.

When firms are charged under the Corruption of Foreign Public Officials Act, as was SNC-Lavalin…

“The prosecutor,” states the legislation, “must not consider the national economic interest, the potential effect on relations with a state other than Canada, or the identity of the organization or individual involved.”

More on this later. First some background.

The new law was unveiled in 2018 as an amendment to the Criminal Code put forward by then justice minister Jody Wilson-Raybould herself. It was tucked into an omnibus bill to approve the federal budget, you know, the omnibus bills the Liberals hated when Stephen Harper was using them to keep Parliament in the dark.

The amended law, which is dubious at best since there has always been a thing called prosecutorial discretion, made it possible for offending companies to negotiate a non-criminal penalty for a criminal act.

It seemed tailor-made for the situation SNC-Lavalin was facing back in February 2016, when discussions about DPA legislation first began. Perhaps that’s why when the legislation was passed in 2018, it was made retroactive.

A long and winding case

SNC-Lavalin has been charged with fraud and corruption under the Criminal Code and the Corruption of Foreign Officials Act. The company allegedly paid $48 million in bribes to get contracts in Libya, including the Great Man-Made River Dam, Benghazi Airport, and the prison with that Orwellian name, Judicial City. The work represented the kind of Big Moolah that weakens corporate ethics at the knees.

The RCMP laid charges on Feb. 15, 2015 after a lengthy international investigation that also uncovered alleged payments of $160 million to the son of then Libyan dictator Muammar Gaddafi.

The Mounties also exposed a plan to spirit Saadi Gaddafi off to Mexico if things got dicey in Libya. Things got quite dicey. His father was later deposed and murdered, and Saadi went to jail.

A full three and a half years after being charged with fraud and corruption in the Libya case, the Canadian engineering firm found itself exactly where it didn’t want to be — facing a criminal trial.

A preliminary hearing began on Oct. 29, 2018, just 19 days after the company was turned down for a remediation agreement by Wilson-Raybould’s justice department. Quebec judge Claude Leblond will decide if the evidence presented by the RCMP merits a criminal trial. SNC-Lavalin requested and was granted a publication ban on the proceedings.

Of note. The preliminary in this case was originally scheduled for Sept. 10, 2018. But it was postponed until after the activation of the new Criminal Code provision — a development that SNC-Lavalin’s lawyer said “was probably a good thing” in its case. The new law, featuring the deferred prosecution agreement, came into force on Sept. 19, 2018.

The Globe and Mail reported a conversation between Trudeau and Wilson-Raybould on Sept. 17, 2018, just two days before the new law came into effect. Trudeau claims that he told Wilson-Raybould that decisions involving the DPA were hers alone to make.

That is a curious thing to tell an accomplished former Crown prosecutor who probably has a better grasp of the law than the former teacher. On Oct. 10, 2018, federal prosecutors under Wilson-Raybould decided to proceed to trial against SNC-Lavalin.

Past crimes and probes

SNC-Lavalin is the same company whose former CEO, Pierre Duhaime, turned a blind eye to the massive McGill University Hospital fraud involving SNC-Lavalin executives and Harper appointee Arthur Porter. That is called breach of trust.

It took a stunning six years for Quebec prosecutors to get that case to court, which led to Duhaime’s guilty plea and criminal conviction.

Porter, whom Harper appointed to oversee Canada’s spy service, died a fugitive from justice after spending two years in a Panamanian jail.

Porter’s wife Pamela got 33 months in prison after pleading guilty to two counts of money laundering.

Riadh Ben Aissa, a former SNC-Lavalin executive, got 51 months in prison after pleading guilty to using false documents, a plea that saw 15 other charges against him dropped.

By comparison, Duhaime fared much better. The former SNC-Lavalin CEO got 20 months of house arrest, 240 hours of community service, and a court-ordered payment to a victim’s centre of $200,000.

SNC-Lavalin Inc. was also banned by the World Bank for 10-years on any of the projects it financed — a result of the company’s sleazy business practices in obtaining contracts in third-world countries. The same ban would apply in Canada if the company were to be criminally convicted.

Final irony?

SNC-Lavalin, Canada’s great born-again company if you buy the bumph about their ethical resurrection, is now being investigated by the RCMP and Quebec prosecutors for a new scandal from the bad old days — an alleged kickback payment to Michel Fournier, former boss of Canada’s Federal Bridge Corporation.

As reported by the CBC, Fournier has already plead guilty to receiving $2.3 million from an SNC-Lavalin affiliate in order to win a $127 million contract to renovate Montreal’s Jacques Cartier Bridge.

A frenzy of lobbying

Now SNC-Lavalin’s latest mess has crashed onto the centre stage of Canadian politics in an election year. The company has importuned the Liberals for a break in this case. According to the CBC, the company relentlessly lobbied federal officials on the subject of justice and law enforcement since 2016.

Targets of their lobbying included Francois-Philippe Champagne, now Infrastructure minister, and top officials from Global Affairs Canada, Export Development Canada, Public Services and Procurement Canada, the Privy Council Office and of course the PMO.

The Globe and Mail reported that lobbyists for SNC-Lavalin visited officials in the PMO 14 times, including 12 visits with principal secretary Gerald Butts and the PM’s senior Quebec advisor, Mathieu Bouchard.

After those sessions, there was even a one-on-one meeting between Wilson-Raybould and Butts at the Chateau Laurier in Ottawa on Dec. 5, 2018.

Butts says he told the minister to seek the advice of the Clerk of the Privy Council. Canadians have yet to hear Wilson-Raybould’s recollections of the meeting.

Was the PM’s principal secretary talking about the SNC-Lavalin case? If so, that would be strange. Wilson-Raybould’s director of public prosecutions had decided to proceed to trial with the company weeks earlier.

Upholding the law

As a source close to the story told me on background, “All this talk about pressure. The proof of the case is in the demotion. They wanted her to give SNC a pass. She refused, as is her right. But then they demoted her, which sends a message: Do as we want or you will be punished. All the rest is fog.”

An interesting speculation. But this much is inarguable. SNC-Lavalin lurched and lobbied, kicking and screaming in its attempt to avoid criminal prosecution in the Libya affair. Despite ceaseless pressuring, they lost their prolonged bid to get a free pass through the normal criminal justice system. Or at least they have for now.

It is worth saying that director of public prosecutions Roussel was not exercising animus against the company with her decision not to enter into a deferred prosecution agreement with SNC-Lavalin. As noted earlier in this piece, she was following the very law the company wanted to invoke. It states, in part:

“Despite paragraph (2) (i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada, or the identity of the organization or individual involved.”

In addition to criminal charges, that is exactly the charge SNC-Lavalin is facing, which is why the company’s request for a judicial review of this matter by the Federal Court should go nowhere. Roussel made the right call — and so did Wilson-Raybould.

In shuffling out his former justice minister, Trudeau did not.

It is widely believed that the prime minister demoted Wilson-Raybould. What no one knows for sure is why, despite the PM’s latest explanation that Scott Brison’s sudden resignation from cabinet was the only reason Wilson-Raybould was moved.

Though it is a matter of optics rather than documented evidence, the timing is seriously suspicious. The minister was demoted just months after Roussel’s decision to proceed to trial against SNC-Lavalin rather than negotiate a DPA. To regular people, that looks a lot like payback.

And then there is the telling comment of Canada’s new justice minister, Quebecker David Lametti, that the SNC-Lavalin case is still under consideration.

Lametti told several news agencies, including the Globe and Canadian Press, that he could still intervene in the SNC-Lavalin case. As “a final step” he could even issue a directive to prosecutors to do a negotiated settlement of the matter.

My question is this: Since the director of public prosecutions has already made her decision under the law, and the Prosecution Service was designed back in 2006 to be independent of political interference, why is the matter still under consideration?

Isn’t it true that the director has the power to make “binding and final decisions to prosecute offences”? If not, then all we are left with is politics. That’s why it is so tempting to conclude that Wilson-Raybould simply didn’t give the PM and her colleagues the decision they wanted — and paid the price.

SNC-Lavalin is all about jobs, cash, and billions in support from Export Development Canada. With 8,500 Canadian employees, and worth around $10 billion on the market, it is in one respect like the crooked investment banks in the U.S. back in 2008, too big to fail. That could have been what Wilson-Raybould was reminded of in all those “discussions” that the government said were perfectly normal.

And in a way they are. It is true that an attorney general can direct their director of public prosecutions, but that is an extremely rare occurrence. In the United Kingdom, for example, it has been done, but almost always in the name of national security.

As for an attorney general discussing a case with cabinet colleagues, that too is understandably and properly done from time to time. But only if the conversations amount to information exchange, not pressuring. When an AG acts, they act alone, free of government or policy direction. As for the director of public prosecutions, aside from the AG, they are not answerable to any politician.

The last word in this vital matter of cabinet colleagues assisting a sitting attorney general on a case goes to a long gone politician who died at the age of 101, Sir Hartley Shawcross.

Shawcross was the attorney general of England back in 1951, and gave the world the Shawcross Principle, laying out how the relationship between the AG, the director of public prosecutions, and cabinet ought to work. All federal and provincial attorneys general in Canada have since adopted his doctrine. On the precise issue of how cabinet can properly interact with an AG, this is what Shawcross had to say:

“The assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the attorney general, and he is not to be put, and is not put, under pressure by his colleagues in the matter.”

We need to know what happened to Wilson-Raybould, honest to Sir Hartley we do.

Mr. Prime Minister, it is one thing to move a senior cabinet minister, quite another to demote them. The question stands: why did you demote Canada’s first Indigenous justice minister?

If you won’t answer that question with something other than a flimsy process explanation, then at least waive the solicitor/client privilege in this matter so that Wilson-Raybould can tell Canadians herself what really happened.

You can reach Tyee writer Michael Harris here.