Sunny ways turn cloudy

Did Justin Trudeau attempt to influence then Justice Minister Jody Wilson-Raybould to intervene in the prosecution of SNC-Lavalin for corporate wrongdoing, as alleged in a Globe and Mail article in early February? Is that why she was shuffled from her high-profile Cabinet position as Minister of Justice and Attorney General to the much less visible position as Minister of Veterans’ Affairs? Why did Gerald Butts, the Prime Minister’s principal secretary resign? What are we to make of Privy Council Clerk Michael Wernick’s comments to the House of Commons Committee on Justice and Human Rights? Will Wilson-Raybould, no longer a member of Cabinet, testify before the Justice Committee? Which cabinet minister(s) said those nasty things about her?

There is enough intrigue and potential malfeasance here to form the basis of a political drama mini-series to rival House of Cards.

We don’t have answers to many of these questions yet, and we may never have answers to some of them. We do know that this scandal could cost Trudeau’s Liberals the next election. Given the lack of the NDP’s electoral strength, Canadians could be looking at a Conservative government in another few months. Not a cheerful prospect.

There are many moving parts to this story – too many for one column – so I am going to focus on just one of them for now and return to some of the bigger pieces when, perhaps, we know more.

Deferred prosecution agreements

I have to admit that, until a couple of weeks ago, I didn’t know much about deferred prosecution agreements (DPAs), and I bet the same is true for many of you.

Our ignorance can be forgiven: DPAs only came into force in Canada in September 2018.

They are, for all intents and purposes, the corporate equivalent to a plea bargain or diversion in more mundane criminal cases. If a situation of corporate wrongdoing meets the necessary legal requirements for a DPA, a remediation agreement is negotiated between the prosecution and the accused corporation. The remediation agreement (think diversion agreement in the context of criminal proceedings against mere mortals) can require the corporation to pay fines, undertake activities to remedy whatever wrong it has done, implement enhanced reporting requirements and/or institute third-party oversight of its activities.

The idea is that this will allow the corporation to avoid criminal prosecution while making it a better corporate citizen, just as diversion is supposed to encourage people to take accountability for what they have done, improve their behaviour in the future, become better individual citizens and avoid a criminal conviction.

Conditions apply

In order for a DPA to be considered, there must be a reasonable prospect of conviction; the corporation’s activities cannot have caused serious bodily harm or death and cannot have been carried out in connection with criminal or terrorist organizations; the negotiated agreement must be in the public interest, and, importantly, the federal Attorney General must consent.

Further, the corporation must accept responsibility for its wrongdoing and stop doing it; pay a financial penalty; relinquish any benefit it gained from the wrongdoing; implement or enhance its compliance measures and make appropriate reparation.

Pros and cons of DPAs

Just as plea bargaining and diversion can be positive, there are arguments to be made in favour of DPAs. In the worlds of both corporate and individual wrongdoing, there is often greater benefit to society when the wrongdoer acknowledges and takes responsibility for what they have done, makes tangible commitments – with oversight mechanisms put in place – not to do it again and takes steps to make amends for what they have done than simply finding the wrongdoer guilty and imposing a punishment.

A DPA may make it more likely that the corporation can continue to operate, keep paying its employees and its suppliers and generally having a positive impact on the community or communities where it operates.

But, individual wrongdoers can be skilled at saying the right things and promising to change with no intention of following through on those promises, and the same is true of some corporations. Not everyone comes to the remediation table with clean hands.

DPAs and SNC-Lavalin

SNC-Lavalin, a Montreal-based corporation providing engineering, procurement and construction services in various industries, has a long history of corporate wrongdoing, having faced scandals, allegations and charges related to bribery, fraud, forgery and kickbacks for decades, both domestically and internationally. It also has close ties to the Liberal party in Quebec and federally, and lobbied strenuously for the introduction of DPAs in Canada. Its hands are not exactly clean.

When Privy Council Clerk Michael Wernick spoke to the House of Commons Standing Committee on Justice and Human Rights with respect to the current scandal, he noted that he had advised then Justice Minister Wilson-Raybould in December that the Prime Minister and some of her colleagues were “quite anxious” about the possible consequences for SNC-Lavalin employees and suppliers in the event of a criminal prosecution leading to a conviction (one result of a conviction would be that the corporation would be barred from bidding on federal contracts for 10 years). Wernick said that he warned her about the dire economic consequences of a criminal prosecution and also mentioned the option of a DPA.

It is his opinion that this did not amount to attempting to influence Wilson-Raybould:

“I think the matter may come down to the ethics commissioner’s view on a conversation between two people, between what was said and what was received.”

This claim seems a little spurious and self-serving, given the power accorded to his position.

It is anticipated that Wilson-Raybould will appear before the Justice Committee this week. Whether or not her lawyer, former Supreme Court Justice Thomas Cromwell, will advise her that solicitor-client privilege prevents her from talking about conversations she may have had with the PM about the SNC-Lavalin prosecution remains to be seen.

In the meantime, the Liberals, and the PM in particular, must be longing for a return to those sunny ways of 2015.

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