A view of the exterior of the SNC Lavalin headquarters in downtown Montreal on Feb. 12, 2019.Dario Ayala/The Globe and Mail
SNC-Lavalin is making a fresh legal bid to avoid criminal prosecution for bribery and fraud charges, saying “new and troubling facts” have emerged from recent parliamentary hearings that bolster its request to enter negotiations on a settlement.
The Montreal-based engineering and construction giant also revealed in documents filed in the Federal Court of Appeal this week that it was given some indication of why its bid for a settlement, also called a deferred-prosecution agreement (DPA), was rejected.
SNC says it was given a “very cursory explanation" for the position taken by Kathleen Roussel, the federal director of public prosecutions including “three factors” that informed her decision not to shelve the prosecution. These include: “the nature and gravity” of the alleged acts, the “degree of involvement of senior officers of the organization” and the fact that "the company did not self-report” the conduct that led to the charges.
In February, Jody Wilson-Raybould told the House of Commons justice committee that as attorney-general she faced “consistent and sustained” political pressure from Prime Minister Justin Trudeau and top officials, including “veiled threats,” on the need to shelve the criminal prosecution of SNC-Lavalin. She has also blamed her removal from the post of justice minister and attorney-general on her unwillingness to consider a negotiated settlement for the company.
Earlier this week, after nearly two months of political tumult, including parliamentary hearings, Mr. Trudeau expelled Ms. Wilson-Raybould from the governing Liberal caucus. He also removed former Treasury Board president Jane Philpott, who had criticized his handling of the SNC prosecution.
SNC-Lavalin’s argument in this appeal is that Ms. Wilson-Raybould, who supported Ms. Roussel’s decision not to enter negotiations on a DPA with the company, did not have all the facts at hand when she made up her mind. SNC contends that she “was apparently unaware” that the company had submitted “additional information” to bolster its case before and after Sept. 16 last year, the date by which the former attorney-general has testified said she had “formed the view … that it was inappropriate for [her]" to overrule Ms. Roussel.
SNC-Lavalin says that on Sept. 4 last year, the company was given a “preliminary indication” that it would not be invited to negotiate a DPA. It was that same day, according to testimony at the justice committee, that Ms. Roussel sent Ms. Wilson-Raybould a special memo, called a Section 13 memorandum, outlining why she had decided not to invite SNC-Lavalin to enter negotiations for a DPA.
It was the next day, Sept. 5, when it was provided with three factors that had influenced Ms. Roussel’s decision.
“Upon being so informed,” SNC-Lavalin’s appeal says, it asked to submit additional information to the director of public prosecutions.
Last month, Federal Court Justice Catherine Kane rejected SNC’s original request for a court review of Ms. Roussel’s decision to proceed with charges of bribery and fraud instead of inviting the company to begin negotiations on a settlement.
Judicial review permits individuals or corporations to challenge the fairness of government conduct. But the courts have long declined to review the decisions of prosecutors, except in cases involving an abuse of power. And SNC-Lavalin did not allege such an abuse when it was before Justice Kane.
In dismissing the company’s request on March 8, Justice Kane stressed that neither the courts nor politicians should interfere with the exercise of prosecutorial discretion.
“To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution.” She said the courts would compromise their own independence if they supervised prosecutors, and they could also bring the justice system to a standstill.
But in its appeal filing this week, the company explains why it is now alleging an abuse of process.
SNC says Ms. Roussel accepted its request on Sept. 5 that it be permitted to submit additional information to support its bid for a deferred prosecution agreement. It provided Ms. Roussel’s office with new information over the days that followed.
However, it says, Ms. Wilson-Raybould seemed to be unaware of the new information, because Ms. Roussel “apparently failed” to tell her about it. SNC cites Ms. Wilson-Raybould’s testimony at the justice committee as its source for these assertions.
This failure to consult Ms. Wilson-Raybould had important consequences, the company argues, in that Ms. Roussel as director of public prosecutions (DPP) is in law accountable to the attorney-general.
“This resulted in the checks and balances regarding the accountability of the DPP … being critically circumvented. This failure lies at the heart of the DPP’s decision-making process in this matter, and constitutes a clear abuse of process.”
Criminal-defence lawyer Solomon Friedman characterized the new SNC-Lavalin legal bid as a “hail-Mary pass."
He said what this appeal “fundamentally misunderstands” is that the prosecution decision was not the attorney-general’s to make.
“The decision was the director of public prosecutions’ to make," Mr. Friedman said. While the attorney-general can take charge of prosecutions or issue direction, the attorney-general "is not the director of public prosecutions’ supervisor.”
Mr. Trudeau declined to discuss the SNC-Lavalin appeal when asked about it at an event in Scarborough, Ont.
Asked whether his government is still considering beginning negotiations on one with SNC-Lavalin, Mr. Trudeau said it will be up to Attorney-General David Lametti to decide whether to intervene.
“[He] has the responsibility to make a determination on whether and how to intervene in matters before the courts and will exercise that in a way that is rigorous and in keeping with the rule of law,” the Prime Minister said.
With a report from Tu Thanh Ha