Perhaps the oddest response to Wednesday’s resolution of the criminal case against SNC-Lavalin Group Inc. came from the federal government.
The decision of the Public Prosecution Service of Canada (PPSC) to allow a subsidiary of the corporation to plead guilty to one count of fraud, and to stay all other charges related to the bribery of the Gadhafi regime in Libya a decade ago, was “made independently by the PPSC,” announced David Lametti, the Minister of Justice and Attorney-General. The Prime Minister agreed. “This process unfolded in an independent way,” he told The Canadian Press.
On the surface, you would think this would not need saying. Of course the decision was made by professional prosecutors independently of political interference. This is Canada. We don’t allow elected politicians to decide who gets prosecuted and who does not in this country; no civilized democracy would. That’s not just a matter of convention: it’s entrenched in law. Why not announce that the judge in the case was unbribed while you’re at it?
But, alas, this is Canada in 2019, a year in which the question of whether prosecutors would be permitted to make decisions independently of political interference was very much placed in doubt, in this very case, and by members of this same government. The same sort of denials, what is more, were issued throughout.
Although the facts are by now beyond dispute – senior officials in the government, led by the Prime Minister, pressed Jody Wilson-Raybould when she was attorney-general to order prosecutors not to take SNC-Lavalin to trial, but to offer it the deferred prosecution agreement (DPA) for which they had already ruled it ineligible. When she refused, she was fired. The Prime Minister and his officials spent months denying the allegations, and when they were confirmed, denied this constituted interference.
Still, because she refused, because she was fired, because she went public, because the Prime Minister and his officials so evidently lied and stonewalled in response, because Ms. Wilson-Raybould and another senior minister, Jane Philpott, resigned from cabinet in protest, because the Prime Minister’s principal secretary and the clerk of the privy council were forced to resign, because the ethics commissioner found the Prime Minister in violation of federal conflict of interest rules and the RCMP began looking into whether the campaign to undermine and circumvent the country’s chief law enforcement officer amounted to obstruction of justice – because the whole thing blew up into such an unholy row, we can have some confidence that the decision was indeed made as the Justice Minister and the Prime Minister describe it: independently.
Because otherwise, people might think SNC-Lavalin got some kind of sweetheart deal. The amount it was fined, $280-million, is probably not out of line, especially considering the lengths to which the company has since gone to clean up its act. But to have accepted a guilty plea from only a subsidiary, not the parent firm, and more especially to have dropped the charge of bribery in a case that was wholly about bribery, looks like lenient treatment.
Does this, as some have claimed, amount to much the same punishment as the corporation might have received in the DPA for which it so strenuously lobbied? Not quite. It is not insignificant, first, that the corporation, even through a subsidiary, admitted and was found guilty of something – a sadly rare occurrence in corporate corruption cases in this country, especially where the offences occurred overseas, notwithstanding our international treaty commitments to crack down on it.
That, more than anything, was why the company had been so desperate for a DPA: to avoid a criminal conviction. And while being convicted of fraud, rather than bribery, may still allow it to bid on federal contracts, it is not as clear that it will be able to avoid sanctions in other countries. For their part, the Prime Minister and the government he leads must now acknowledge that the company on whose behalf they improperly attempted to interfere with federal prosecutors was not just accused of a serious crime, but by its own belated admission, guilty of it.
That is the second and more important sense in which this outcome differs from that which the company and the government so conspicuously desired: not so much in what was decided, but who decided it. It was always open to prosecutors’ discretion to offer a plea deal such as the one the company eventually accepted, as it was to offer a DPA. What was wrong was for either option to be imposed upon prosecutors by the Prime Minister or his officials, directly or through the attorney-general. (She had a highly circumscribed right, never before exercised, to instruct the director of public prosecutions. They had no right to instruct, or press, her.)
It is open to question whether even the terms of this week’s deal would have been available had things unfolded the way the government preferred. The only bargaining lever prosecutors have is the threat of going to trial. Take that away – tell prosecutors they have to negotiate a DPA, that a court case is out of the question – and what leverage remains?
And yet it is still a strange, even puzzling, outcome. If prosecutors offered to settle with SNC-Lavalin on such advantageous terms, say, six months ago, when a DPA seemed off the table, why would the company not have accepted? If, on the other hand, the offer was made more recently – SNC-Lavalin was still filing papers in court as late as Nov. 26 seeking to overturn the prosecutors’ decision – what changed? What, other than the government’s re-election?
Who can say? The prosecutors say there was no interference. The government says there was no interference, although it said there was no interference before. I guess we can take their word for it.