I’m a democratic socialist. It’s a condition that may be genetic. “My mother voted for Tommy Douglas in Saskatchewan. So, you could dismiss the following notes on the SNC Lavalin affair and go do something else. But if you’ll indulge me, I’d like to lay out what we know for sure, as opposed to what we think we know, or what we’re being told to know.
First, we know the government brought in deferred prosecution agreements (DPAs) for corporations with an omnibus bill that implemented their 2018 budget. It passed into law on the heels of a full-court press from SNC Lavalin. You can find it in Part XXII.1 of the Criminal Code.
Second, the law lists a number of things the Public Prosecutor (currently Kathleen Roussel) MUST consider when thinking of offering a company a DPA instead of proceeding to court. There are nine, including whether the company has taken disciplinary action against those involved, whether the company has made reparations, and whether the company has been sanctioned by a regulatory body (which SNC Lavalin has).
In deciding whether to offer a company a DPA, the Public Prosecutor must NOT consider “national economic interests.” Or, for that matter, political interests—like votes in Quebec.
After reviewing the law and the facts of the case, Ms Roussel decided SNC Lavalin did not qualify for a DPA. That forces the company into litigation which is due to begin before the Fall election.
Third, if the Attorney General sets aside a decision of the Public Prosecutor, that action must be Gazetted—in other words, made very public. If that had happened, the Liberals would have been open to charges of allowing a corporation (and a major Liberal donor) off the hook for political gain.
Fourth, SNC Lavalin continued to lobby the government and the government lobbied the Attorney General. Lobbying a minister is fair game. Lobbying the Attorney General in order to influence a prosecution is not. And that goes for the Prime Minister, the PM’s Office, and especially the Clerk of the Privy Council Office who is supposed to a non-partisan bureaucrat.
And yet that is exactly what happened—over and over for a full five months before the Globe and Mail broke the story on February 7, 2019.
Not only that, the ‘non-partisan’ Clerk, Michael Wernick, made it clear to the Attorney General in December 2018 that he was delivering the mood and message of the Prime Minister who was apparently so upset that he was prepared get his way “one way or another.” I don’t know about you, but that sounds like a threat: do what I want or else.
Mr Wernick testified at the Justice Committee that he knew way back in September 2018 about the decision of the Public Prosecutor not to offer a DPA to SNC Lavalin, and the Attorney General’s determination not to overturn that decision on principle. And yet, he and Gerald Butts from the Prime Minister’s Office, and the PM himself persisted.
So, as Joe Friday used to say on Dragnet, those are “just the facts, ma’am.”
One last observation. During the 2015 election campaign, Mr Trudeau promised us a new way of doing politics. But the only ones who were truly doing politics differently are now gone from the Liberal caucus.
David McLaren, Neyaashiinigmiing
