In my opinion, the more we learn about the SNC-Lavalin affair the more important it becomes to investigate the possibility that Prime Minister Justin Trudeau and others committed criminal offences in the course of protecting SNC-Lavalin from prosecution.
SNC-Lavalin extensively lobbied Trudeau’s government for a remediation agreement (often called a deferred prosecution agreement or DPA) so that the company would not have to face a criminal trial. The director of public prosecutions decided that the case did not warrant a DPA and former attorney general Jody Wilson-Raybould did not reverse that decision.
Trudeau claims that the potential loss of 9,000 jobs was the reason he tried to convince the former attorney general to offer a DPA. However, there seems to be little basis for concluding that this potential would be realized.
On the other hand, there is compelling evidence that possible effects on the Liberal Party’s performance in an upcoming Quebec election were among the concerns that Trudeau asked the attorney general to consider.
The February testimony of the former attorney general at the justice committee is available here.
Among many other things, she testified that she was asked to offer a DPA because of the upcoming Quebec election; the following is taken from her very credible testimony.
One of the first communications to her about a DPA was from the finance minister’s chief of staff to her chief of staff, to the effect that, if SNC-Lavalin does not get a DPA, they would leave Montreal and, “since it’s the Quebec election right now, we can’t have that happen.”
On September 17, 2018, the attorney general met with the prime minister and the clerk of the Privy Council. The clerk said that SNC-Lavalin will likely move to London if they did not get a DPA “and there is an election in Quebec soon.” Then the prime minister jumped in, stressing that there is an election in Quebec and that he is an MP from Quebec.
The law concerning DPAs involves balancing a number of factors.
One factor that the Criminal Code requires prosecutors to consider is whether the organization or any of its representatives were convicted of an offence or sanctioned by a regulatory body for similar acts. SNC-Lavalin has engaged in similar corruption in many countries, including Canada. This should be a serious obstacle to their obtaining a DPA.
An attorney general has the ultimate responsibility of determining whether a DPA should be offered; it is unlawful for anyone to “pressure” her to change her mind.
An attorney general may reconsider her decision any time before the end of the criminal trial, and a prime minister may properly inform an attorney general about new evidence that might justify re-consideration.
However, when former principal secretary to the prime minister, Gerald Butts, offered that “new evidence” justification to the justice committee, MP Murray Rankin asked him, “What new evidence? We haven’t heard of any new evidence.”
Butts replied, “There must have been. I am not aware of any, but there must have been some reason for the DPP [director of public prosecutions] herself to [inaudible].” It is inconceivable that Butts would not have been aware of significant new evidence if any had been presented to the attorney general.
The many meetings with the attorney general did not provide significant new evidence; they simply provided pressure on her to change her decision.
Trudeau’s supporters in the prime minister’s office made repeated suggestions to the attorney general that she seek advice from a former judge. The attorney general said she had done her job and did not need more advice. But they continued to pressure.
They assured the attorney general that, if she changed her decision and was “nervous” about doing so, “we would, of course, line up all kinds of people to write op-eds saying that what she is doing is proper.” Butts testified that this meant that, “We would do our best to support her, whatever decision she chose to make.” In my opinion, what they really meant is, “Offer a DPA, even though you believe it is improper to do so. If others say it is improper, we will line up lots of op-eds to support you.”
When the former attorney general continued to resist what she very reasonably described as “hounding,” Trudeau “shuffled her out” of her position as attorney general. It is hard to believe that the shuffling was not done for the purpose of protecting SNC-Lavalin from facing trial.
What we know about this affair is probably just the tip of a very big iceberg. If a thorough investigation establishes that Trudeau exerted strong pressure on the former attorney general, or that he urged her to consider the effect of a trial on the Liberal Party’s electoral performance, or that he replaced the attorney general because she refused to offer a DPA, then charges should be laid.
The criminal offence of obstructing justice is committed by anyone who “wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding.” Did they?
Moreover, it is an offence to counsel anyone to commit an offence. Did Trudeau counsel people to obstruct justice?
In Canadian law, a conspiracy is an agreement by two or more people to do an unlawful act. Did Trudeau and others conspire to obstruct justice?
Trudeau has denied that he or his colleagues did anything inappropriate.
That raises the possibility that his government (and possibly others) might have similarly protected other large corporations that were facing other kinds of charges. We only found out how they acted to protect SNC-Lavalin because of the unusual integrity and courage of Wilson-Raybould.
A criminal prosecution might help to deter similar conduct by future governments.
Peter Rosenthal is a recently retired lawyer and Adjunct Professor of Law and Professor Emeritus of Mathematics at the University of Toronto.
Photo: Adam Scotti/PMO
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