Prime Minister Justin Trudeau, in a public statement on Thursday, said an attorney-general’s decision on a prosecution is never final. His former principal secretary, Gerald Butts, and the Clerk of the Privy Council, Michael Wernick, made the same point to the Commons justice committee on Wednesday: A settlement can be offered right up until the end of criminal proceedings.Sean Kilpatrick/The Canadian Press
Prime Minister Justin Trudeau and senior government officials attempted to use a well-known legal principle as justification for political interference in the SNC-Lavalin case, four former attorneys-general and a former deputy attorney-general say.
Mr. Trudeau, in a public statement on Thursday, said an attorney-general’s decision on a prosecution is never final. His former principal secretary, Gerald Butts, and the Clerk of the Privy Council, Michael Wernick, made the same point to the Commons justice committee on Wednesday: A settlement can be offered right up until the end of criminal proceedings.
That testimony raised the question of whether Jody Wilson-Raybould, when she was attorney-general, was obliged to be continually open to arguments for an out-of-court settlement in the case of SNC-Lavalin Group Inc., the Quebec construction giant charged with fraud and corruption, a case that has led to a political earthquake in Ottawa.
Mr. Wernick said new facts deserved consideration – specifically, a falling stock price that put the company at risk of a foreign takeover (the price fell after SNC told shareholders Ottawa had refused to negotiate a settlement) and a visit from the Quebec Premier to federal officials. These new facts changed the risk environment, he said.
The basic legal principle cited by Mr. Trudeau, Mr. Butts and Mr. Wernick is that prosecutors need to keep an open mind until the very end of a prosecution, always ensuring the case is being conducted in the public interest.
“The role of a prosecutor is always to be re-evaluating a case,” Chris Considine, a Victoria lawyer who has served as a special prosecutor, said in an interview. For instance, a case may prove weak; a prosecutor might settle for a guilty plea on a lesser charge, or ask for a stay of proceedings, even late in a trial.
But who prompts a prosecutor’s re-evaluation? On Feb. 7, The Globe and Mail reported that federal officials had put pressure on Ms. Wilson-Raybould to direct federal prosecutors to negotiate an out-of-court settlement known as a remediation or deferred prosecution agreement with SNC-Lavalin. She has since testified at a Commons committee that she came under pressure in more than 20 contacts over a four-month period.
Yes, a remediation agreement can be negotiated at any time, said Jonathan Denis, a former attorney-general of Alberta (2012 to 2015 in a Progressive Conservative government).
“But the bigger issue is, that should always be done independent of political interference or authority,” he said in an interview.
Michael Bryant, a former Ontario attorney-general (2003-2007, in a Liberal government), said it should have been counsel for SNC-Lavalin, not government officials, pressing for a remediation agreement.
“Wernick or anyone from the PMO delivering that message instead of SNC-Lavalin’s counsel, they’re using their cabinet-making power to try and bend her to their will,” he said in an interview.
He cited the case of Vice-Admiral Mark Norman, who is charged with breach of trust, whose lawyers have brought an abuse-of-process motion against federal prosecutors.
“That’s what it looks like when a defendant is of the view that the prosecution has tunnel vision or is proceeding inappropriately,” he said. “You go to court. You bring motions. You send submissions from one counsel to another.”
Bruce MacFarlane, a former deputy attorney-general of Manitoba who also worked for the federal justice department for 20 years, cited Ms. Wilson-Raybould’s testimony that senior officials raised the same arguments several times and his own experience with the delegated authority of attorney-general to decide whether to seek direct indictments and bypass preliminary inquiries.
If officials are recycling the same arguments, he said, “all you’re trying to do is wear me down.”
The new risk environment Mr. Wernick cited is excluded from consideration under the 2018 law that provides for remediation agreements where appropriate, Brian Smith, a former attorney-general of British Columbia (1983-88, in a Social Credit government), said in an interview.
“Those are political considerations. Those are business considerations. It’s all stuff that the statute excludes you from taking into account.”
“It really is quite a ridiculous argument to say that they’re not interfering with her, or with a criminal investigation, because it’s not final,” Mr. Smith said.
Federal officials “were trying to get the AG to do something that was illegal,” Mr. Smith said. “How else can you interpret it? Because there is no way SNC-Lavalin could have met the criteria.” Prosecutors may consider other charges laid against company officials in deciding whether to negotiate a remediation agreement. Mr. Smith cited criminal and Elections Act charges laid against company officials in Canada, outside of the events in Libya that led to fraud and corruption charges.
When he was attorney-general, Mr. Smith said, he came under pressure from premier William Vander Zalm to give him information on an investigation of a friend and fundraiser.
“He said, ‘Are you conducting a criminal investigation?’ I said, ‘Well, you don’t want to know that. That could compromise you. We don’t tell people in this country whether there are criminal investigations.’ I explained to him the consequences of doing that – ‘If there was a drug sting operation and you let that slip out over dinner and the whole investigation came to an end, millions of dollars of time were lost, lives were jeopardized, you could be charged with obstruction of justice.’
“He looked at me with those translucent blue eyes. I thought, ‘My gosh, he finally understands it.’ ” But a few days later the premier said of him, “if he was a real minister of justice, he’d do justice” to his friend by shutting down the investigation. Mr. Smith resigned.
Government officials also pressed Ms. Wilson-Raybould to ask for an outside legal opinion from a retired Supreme Court judge such as former chief justice Beverley McLachlin.
The former attorneys-general and deputy attorney-general did not think that was a sound idea.
“It’s a slap in the face,” said Charles Harnick, who was Ontario attorney-general from 1995-1999 in a Progressive Conservative government. “What does that say about the confidence she would have in her prosecution service?”