OTTAWA — Canada’s top public prosecutor is staunchly defending her prosecution of Quebec engineering giant SNC-Lavalin on corruption charges, saying her office must remain independent from political interference and judicial supervision.
As a political storm rages over whether the Prime Minister’s Office pressured former attorney-general Jody Wilson-Raybould to cut SNC-Lavalin some slack, a judicial battle to force the Crown’s hand is also unfolding.
The company wants the Federal Court to order Kathleen Roussel, the director of public prosecutions and deputy attorney general, to issue “an invitation to negotiate” a mediation deal — one that would spare it from a trial that could lead to a potentially business-killing corporate criminal conviction.
But Roussel is resisting the high-profile effort to change her mind about prosecuting the Quebec company.
In Federal Court documents obtained by the Star, Roussel responds to SNC-Lavalin, saying that it has no legal right or entitlement to any deal; that prosecutors are independent with broad discretion on how to proceed with charges; and that under the Constitution, prosecutors are free from political or judicial interference.
In an Oct. 9 letter to Iacobucci and McNamara, Roussel rejected the company’s written pleas and request for an in-person meeting with them and SNC-Lavalin CEO Neil Bruce, saying a remediation agreement “is not appropriate in this case.”
She does not say why in the letter, a copy of which is in the court record.
SNC-Lavalin then went to Federal Court seeking judicial review of her decision.
The company says Roussel is required by law to consider the public interest in a mediated settlement that would spare it a conviction.
It argues Roussel did not provide the company any reasons for her refusal, which it called unreasonable, “incoherent,” and threatening the livelihoods of many thousands of employees, customers and pensioners who did not engage in wrongdoing.
That’s because if found guilty, the company would be barred from bidding on government contracts for a decade.
SNC-Lavalin essentially argues it is too big to fail.
It has launched an all-out effort, lobbying the Trudeau government, Opposition leader Andrew Scheer, and others to plead its case, and now wants a Federal Court judge to weigh in.
But in her reply, Roussel tackles the issue head-on.
She says the law passed last year allowing for what is called “deferred prosecution agreements” (a new regime that was stuffed into an omnibus budget bill) is explicit about what factors prosecutors must not consider in corruption cases:
“The prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved” where an organization is charged under the Corruption of Foreign Public Officials Act, as in SNC-Lavalin’s case.
In other words, the the director of public prosecutions is arguing that, while the law sets out other criteria Roussel could consider when weighing the public interest, she’s not allowed by law to consider whether a company is too big to fail.
The company, on the other hand, says it has complied with all the law’s prerequisites for entering into negotiations that could see it pay a heavy fine but avoid a criminal conviction:
It says it has overhauled its ethics and corporate governance regime, under the guidance of independent monitors. It has had a “complete turn-over of the SNC-Lavalin’s senior management and board of directors.”
It says it has fired “senior officers who could be considered as having been even remotely associated with the activities in question,” instituted anti-corruption training of its employees and made “permanent transformative changes” to its business practices.
It says the RCMP has levied criminal charges against only one individual regarding the same allegations, who SNC-Lavalin says left the company seven years ago. The company says it has sued that employee civilly for “a massive related embezzlement.”
And it refers to the “extremely negative,” “unfair” and “dramatic consequences” on the company and its employees if it were eventually convicted and subsequently forbidden from bidding on contracts, especially in a business environment where its unnamed competitors “can and have availed themselves of deferred prosecution agreements in other jurisdictions.”
SNC-Lavalin notes the alternative to a negotiated agreement (that it says could allow the Crown to directly monitor the company for a “reasonable period”) is “a long, expensive and contentious criminal proceeding” whose outcome is uncertain for both sides.
But Roussel is unswayed.
In a written arguments on her behalf, she says a court may only intervene where there is evidence of “egregious” misconduct by Crown attorneys that amounts to an abuse of process.
Otherwise, she says, it is not up to the court to second-guess whether the decisions made everyday across the country by prosecutors are reasonable because it could lead to “paralysis” of the system.
The written brief also takes a strong stand against any political interference in prosecutorial decisions, saying it “could erode the integrity of our system of prosecution.”
Allegations of political interference made for blockbuster headlines recently when the Globe and Mail reported that former attorney-general Wilson-Raybould was shuffled out of her job after she refused pressure by unnamed senior PMO officials to direct Roussel to cut a deal with SNC-Lavalin.
Prime Minister Justin Trudeau denies anyone in his office “directed” Wilson-Raybould “to take any decision whatsoever.” Over the weekend, senior government officials have reportedly defended “robust” discussion on the matter, and denied any pressure was exerted on the former justice minister.
But Roussel makes clear her office must be immune from political pressure.
Her brief says the 2006 law that created her office explicitly states that the director of public prosecutions “is an independent organization, separate from the department of justice, and its objectives are to be carried out in a non-partisan manner.”
The director’s written brief filed by lawyers David Migicovsky and Andrew Lenz says although the attorney-general (formerly Wilson-Raybould, now David Lametti) has power to direct the director of public prosecutions, “in the exercise of these powers he (the attorney general) is not subject to direction by his ministerial colleagues or to control and supervision by the courts.”
Migicovsky said in an interview Sunday that SNC-Lavalin’s challenge of Roussel’s decision was heard by Federal Court judge Catherine Kane on Feb. 1 in Montreal. Kane has not yet rendered her decision.
The Star has not received answers to requests for comment sent to Roussel’s office, or from lawyers for SNC-Lavalin.
Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamacc