Justice John Major in Ottawa Sept 18, 2007.JONATHAN HAYWARD/The Canadian Press
Retired judge John Major said it was only “logical” for SNC-Lavalin to seek the involvement of three former Supreme Court justices in its efforts to persuade prosecutors to negotiate a settlement with the company, instead of pursuing a criminal trial on fraud and bribery charges.
In an interview with The Globe and Mail, the retired Supreme Court justice said the law allowing the Crown to enter into a remediation agreement came into effect only last year, and that it was normal for SNC-Lavalin to seek outside expertise once its application for such a deal was rejected.
The company hired Mr. Major in November to prepare a legal opinion on the fact that prosecutors did not provide the company with a full rationale for the decision not to enter into a deferred prosecution agreement (DPA). According to court filings by SNC-Lavalin, it received a sense of the Crown’s reasoning for the rejection − including the “gravity” of the alleged corruption allegations − but not the full rationale.
“Nobody knows why SNC was turned down," Mr. Major said of the legal opinion that he provided to the company. “My opinion is they deserve an answer, it’s that simple.”
SNC-Lavalin’s legal counsel, Frank Iacobucci, who hired Mr. Major, is also a former Supreme Court justice. According to a report this week by Ethics Commissioner Mario Dion, Mr. Iacobucci provided a separate legal opinion on the “legitimacy” of an intervention in the case by then-attorney-general Jody Wilson-Raybould.
Mr. Iacobucci also contacted the former chief justice of the Supreme Court, Beverley McLachlin, after Ms. Wilson-Raybould declined to overturn the decision of the Crown on the DPA. In his report, Mr. Dion said SNC wanted Ms. McLachlin “to preside over a settlement conference between the Director of Public Prosecutions and SNC-Lavalin over the ongoing legal matters.”
Ms. McLachlin said through a spokesperson that she will not comment on the Ethics Commissioner’s report. Earlier this year, she said in a statement that she was never hired to prepare a legal opinion on the SNC-Lavalin criminal prosecution and did not offer any legal advice to Ms. Wilson-Raybould on the matter.
According to the Ethics Commissioner, the legal opinions written by Mr. Iacobucci and Mr. Major were provided to members of the Prime Minister’s Office and other senior Liberal ministers and staffers. Ms. Wilson-Raybould did not see them.
Mr. Major said the high stakes of the case – with millions of dollars and thousands of jobs in play – help to explain why SNC-Lavalin sought the involvement of three retired Supreme Court justices.
“[Former Supreme Court justices] have seen a lot of cases, so they are in a pretty good position to give an opinion and I don’t think there is anything particularly sinister,” Mr. Major said. “It’s just that on matters, clients are sometimes looking for the best opinion they can get. … It seems kind of logical that you might like the opinion of somebody who practised and has heard a lot of cases, to get their impression.”
Mr. Major added that in his view, a DPA increased the possibility that the government would obtain a substantial financial payout from SNC-Lavalin.
“They could likely get a bigger settlement than a court might impose by way of a fine,” he said.
NDP MP Charlie Angus sharply criticized the lobbying campaign by SNC-Lavalin, which used its extensive contacts in the worlds of business and politics to seek to overturn the decision of prosecutors. Mr. Angus added that the reliance on former Supreme Court justices was emblematic of the company’s “enormous political power.”
“How can Canadians feel that there is one rule of law for everyone," he said in a Globe interview.
Mr. Angus has written to the Commissioner of Lobbying, Nancy Bélanger, to seek a full investigation into the numerous contacts between officials at SNC-Lavalin and in the government that are laid out in Mr. Dion’s report.
“Canadians need to know that our lobbying system is not being systematically abused by the biggest and best-connected companies in Canada,” Mr. Angus said in his letter.
A spokeswoman for the company, Daniela Pizzuto, said SNC followed all rules as part of its lobbying campaign.
“As we’ve reiterated on several occasions, our lobbying activities are a matter of public record,” she said.