This issue has been widely reported in the news these last weeks. There is still more to learn but at first blush it appears the ethical, transparent, sunny ways that were first promised by the Prime Minister in 2015 have crumbled into the biggest and possibly the most damaging political story since his election.
SNC-Lavalin, one of Canada’s largest engineering and construction companies with 50,000 employees world-wide, had been charged under the Criminal Code and the Corruption of Foreign Public Officials Act in 2015, relating to allegations of corruption and bribery in Libya between 2001 and 2012. SNC employs about 8,000 Canadians (less than half of those in Quebec) and keeps their international head office in Montreal.
Faced with possible criminal charges that would prevent them from bidding on Government of Canada contracts for ten years, SNC promoted the idea of creating a mechanism in Canada’s Criminal Code, similar to that available in the UK and US, that would allow companies in their predicament to pay substantial fines, but avoid criminal conviction, thereby allowing them to continue operating. To be eligible for such a plea bargain, the company would have to demonstrate that it had removed the people in its ranks who were responsible for the criminal acts, and that it had taken actions to prevent these kinds of nefarious activities for the future.
In Canada, this new mechanism in the Criminal Code is called a remediation agreement. It was passed into law in June 2018 and came into effect in September. Remediation agreements are useful in preventing innocent parties like front-line workers and ethical executives from becoming the victims of bad actors within their own company.
The eligibility for a remediation agreement is spelled out in the law and it is rigorous. Of interest is the fact that in coming to a decision on eligibility, the Director is expressly prohibited from considering economic factors (jobs, employment, investment). On September 4th, the Director of Public Prosecutions, a department-head under the Attorney General of Canada, advised her boss, Jody Wilson-Raybould, that she would not be inviting SNC-Lavalin to undertake a remediation agreement. She had concluded that the company was not eligible.
The AG can tell the Director of Public Prosecutions to proceed with such an invitation regardless of the Director’s position and if an AG does so, they must publish their rationale in the Canadian Gazette. In other words, such a decision by the AG is required to be made public.
After receiving the Director’s decision, Ms. Wilson-Raybould took time to do her own due diligence on the matter and eventually concluded that the Director’s decision was the right one; that SNC-Lavalin, in this case, should not be offered a remediation agreement.
A story in the Globe and Mail on February 7th indicated, from anonymous sources, that Wilson-Raybould, had been pressured to change her mind on this issue. Since that time, media stories and commentary has been abounding. This has become the biggest political story of this government’s term and generally, perhaps the most controversial since the Liberal sponsorship scandal in the early 2000’s.
So, what is supposed happen here?
The separation of Canada’s judicial system from its political branch is enshrined in our Constitution and is the bedrock upon which our democracy functions. Judicial proceedings, like those of the Director of Public Prosecutions and the Attorney General must be free of political influence except where the law specifically permits ministerial discretion. In those cases, the public expects such Ministers to be open and to explain any intervention they might make in this regards.
I am sure that I share the view of many of you, in being more than intrigued by the stark testimony of former Attorney General Jody Wilson-Raybould on the SNC-Lavalin affair. She explained how, as Attorney General, she was on the receiving end of consistent and sustained pressure from the highest officials of the government, including the Prime Minister himself – to reverse her decision regarding the SNC-Lavalin issue.
In her appearance before the Justice Committee, I believe Ms. Wilson-Raybould acted with integrity and great poise to defend the independence of her office and ensure the consideration of this issue was rightly and only within the boundaries the law prescribes. It was a unique look into the way senior Ministers of the government deliberate on such important and complicated issues. When you consider that the pressure on the AG came from close members of her own political family, you have a measure of how principled and honourable she was, in defending her obligations in law. I am sure that future generations of Canadian law and political science classes will take note of these events and her steadfast defence of these legal principles.
My leader, Hon. Andrew Scheer, is calling on Prime Minister Justin Trudeau to resign, citing that his actions have resulted in losing the moral authority to govern. The NDP and Green Party are calling on the government to launch a public inquiry. The Justice Committee is planning to have more witnesses and the return of others, to learn more of the facts in this case. The Conflict of Interest and Ethics Commissioner is looking into the matter as well, to see if there were any contraventions of the Conflict of Interest Code or the Conflict of Interest Act, as it pertains to MP’s and Public Office Holders. The Commissioner can report his findings to Parliament.
I believe that our independent justice institutions remain strong and intact and we are all grateful to a very principled Attorney General for defending what appears to be a sound decision, even in the face of unrelenting pressure from her colleagues in Parliament.
M.P. Simcoe North