The year 2019 began with the SNC-Lavalin scandal roiling the political waters and ended with the Montreal-based engineering firm getting the kind of deal it wanted all along.
One, and only one, division of SNC-Lavalin pleaded guilty to a single charge of fraud, and its punishment is no more than a slap on the wrist: a $280-million fine. There are no other sanctions on the company.
Most important, SNC-Lavalin is not barred from bidding on federal government contracts, which was the consequence the company and its supporters most feared from criminal prosecution.
All of this happened through the normal and routine workings of the criminal justice system. SNC-Lavalin’s lawyers reached a plea agreement with federal prosecutors, thus avoiding a trial. And that’s the way most run-of-the-mill criminal cases play out. In the end, the company did not need what is known as a deferred prosecution agreement.
A botched process for amending the criminal code
In 2018, the Trudeau government passed legislation making such agreements possible — with SNC-Lavalin very much in mind.
The purpose of these special arrangements, the legislation candidly states, is to avoid collateral damage to innocent employees and suppliers when a company faces criminal charges. The legislative measure stipulates that if a company in such a predicament accepts sanctions and agrees to a number of stringent conditions, the Crown can put the entire case on the backburner, most likely permanently. In this way, companies could, at least in theory, mend their ways, without the stain of a criminal record.
The government drafted the deferred prosecution provision badly, according to many knowledgeable critics, and passed it not as criminal justice legislation, but as an add-on to the 2018 federal budget. Proceeding in that way meant the House of Commons justice committee never got to give the measure the scrutiny it deserved. Such scrutiny would have included testimony from expert witnesses.
Prior to the 2015 election, the Liberal leader had promised he would never resort to such legislative legerdemain, which was a favourite tactic of the Harper government. In fact, Justin Trudeau pledged to ban the omnibus bill practice outright. Failure to do so was only one of his several broken promises on democratic reform.
As the SNC-Lavalin prosecution proceeded toward a trial, the prime minister and his entourage wanted the then justice minister and attorney general, Jody Wilson-Raybould, to end the matter peremptorily by ordering the federal prosecutor to offer SNC-Lavalin the newly available option of deferred prosecution.
Wilson-Raybould famously refused, arguing that no elected politician should interfere with the judicial process.
The minister then faced intense pressure to change her mind, from a series of high-ranking officials. Chief among those were the prime minister’s most senior political advisor, Gerald Butts, and the head of the federal public service, Michael Wernick.
Wernick even brought up the entirely partisan political matter of pending byelections in Quebec, an odd consideration for a senior civil servant.
When the pressure didn’t work, Trudeau shuffled Wilson-Raybould out of the justice portfolio. At the same time, Ottawa insiders began a whisper campaign against the minister.
She was not a team player, they said. She was difficult and stubborn. She was unqualified and had scant experience. She only got the job because she was an Indigenous person, and did not have the humility to recognize her own limitations and heed the advice of folks who knew better.
It was relentless, and it continues to this day.
Ultimately, the whole matter became public in a very messy way — first with revelations about the pressure campaign in a Globe and Mail news story, then with public testimony from the principal players before the House justice committee.
It quickly became clear that SNC-Lavalin was not the only point of contention between Wilson-Raybould and the Trudeau government. More fundamental than the disagreement over the advisability of using a deferred prosecution agreement in one case was a broad divergence of views on how to deal with judicial conflicts between the federal government and Indigenous communities.
The historic position of the federal justice department is that it vigorously defends the government’s interests in all cases and against all comers, including Indigenous people suing for rights or recognition.
Wilson-Raybould advocated for a different approach. She indicated to justice department lawyers that she did not wish them to fight Indigenous groups on every front. They should favour negotiation rather than litigation, she said.
There is reference in the text messages and emails between Wilson-Raybould and officials such as Gerald Butts to the fact that the minister was getting considerable pushback from people she described as conservatives in her department. She sought greater prime ministerial support, and was frustrated when it was not forthcoming.
A double-talking government
The SNC-Lavalin affair, which cast a shadow over the entire year, highlighted the Trudeau government’s ambiguity, if not outright double talk, on both democratic reform and Indigenous rights.
This is a government that had once promised to reform the electoral system, to reduce the unaccountable power of the prime minister’s office, to make government information more open and transparent, and to ban the use of omnibus legislation.
It did none of that.
The first Trudeau government also pledged to give its highest priority to relations with Indigenous peoples. It did achieve some success there, notably in increasing funding for Indigenous education and changing the assessment process for mega projects to give Indigenous communities more say.
In other ways, however, the Trudeau government found the juggling act between Indigenous demands and the expectations of powerful interests, notably those of big business, to be, at best, awkward.
On the Trans Mountain pipeline, Trudeau’s officials conducted consultations with Indigenous groups that the federal court of appeal found to be so patronizing and meaningless it sent them back to the drawing board.
Government lawyers balked at the human rights tribunal’s order that the government pay $40,000 each to Indigenous children taken from their homes and communities by the child welfare system. And those lawyers had the government’s ear. Now, the government is appealing that ruling in federal court.
Most recently, on Friday, December 20, the U.K.-based Guardian newspaper published a disturbing report that shows how old attitudes and practices with regard to Indigenous people die hard.
The Guardian got its hands on an RCMP memo that talks about using lethal force against members of the Wet’suwet’en First Nation in British Columbia, who have been trying to stop construction of a gas pipeline through their unceded territory.
RCMP senior officers indicate in the memo that they have considered taking the hardest line possible with the Indigenous blockaders. That could include arresting women and children and making use of armed snipers.
As the year comes to an end, a Liberal government that lost its majority shows signs it wants to lower expectations and, you guessed it, focus almost exclusively on the middle class and those working hard to join it.
Others, however, who once invested hope in the Justin Trudeau team — who are neither of the middle class nor aspirants to it — are still here, and do not plan to go away. The re-elected government might, over time, discover that it chooses to ignore them at its peril.
Image: Justin Trudeau/Facebook
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