As the SNC-Lavalin controversy is inexplicably fumbled, a few facts should be revisited. The apparently unanimous mindset in this country, that enabling an alleged corporate offender to pay a fine rather than have its officers charged criminally is in itself sleazy and a failure of judicial administration, is mistaken. Criminal trials are expensive to the country and prosecutors frequently overestimate the probative value of their evidence. If prosecutors always won, as they effectively do in the United States, where they possess an unlimited ability to extort false inculpatory evidence and give immunity from perjury charges to co-operating witnesses, then the presence of the judge and the processes of a trial would be essentially superfluous. This is the case in the U.S, where about 98 per cent of trials produce convictions, 97 per cent of those without a trial, and most judges are ex-prosecutors. Fortunately, this is not how the Canadian system works.
Also, in the SNC-Lavalin case, we should disregard the prohibition on inducements to do business in foreign countries where commercial practices are markedly less scrupulous than in Canada. There is nothing ethically wrong with bribing officials in Libya, Kerala (a state in India), Bangladesh and elsewhere where such claims have been made by Canadian authorities, either officially or through leaked information to the media. As long as Canadian residents do not enrich themselves by such methods, it is no concern of anyone in this country what methods are used to drum up business elsewhere. If a Canadian company breaks laws in foreign countries, it is up to those countries to prosecute the offending companies. Similarly, the allegation that SNC-Lavalin wrongfully gained something like $130 million in Libya is a matter for the Libyans to deal with.
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This theory that Canadian corporations must go out into the world like eagle scouts and operate in environments that by our standards are profoundly corrupt, and conduct themselves as if they were operating a lemonade stand at the summer fair of a Canadian parish church, is nonsense. Of all the recent episodes that have been raised in the SNC-Lavalin affair, the only one that raises concerns on its face is the question about the Jacques Cartier Bridge renovation in Montreal. If such methods were employed there, they are clearly criminal offences.
The remediation option that was legislated in a budget message last year, which confers on the attorney general of Canada or that minister’s director of prosecutions the right to assess a fine rather than criminal indictments, is entirely sensible and necessary and should not have been portrayed, as it has been, as an escape hatch to enable officials to make a cowardly flight from an inflexible public duty to prosecute. If Canadian citizens or residents are receiving money themselves in a manner that is illegal, that is a suitable subject for prosecution in this country, but of the individuals, not of the company, unless there is very clear evidence of the complicity of senior officers in accord with company policy. We should try to avoid the injustice of having shareholders pay the price of executive misconduct. A good deal more would need to be known about the details of the various controversial transactions in the SNC-Lavalin controversy for a member of the public, even a well-informed journalist, to know what was the best course for prosecutors to follow.
There is nothing wrong with the prime minister or his office requiring the attorney general and senior officials to reveal the evidence to them and to determine whether the request for a fine rather than prosecution is reasonable. If the case is ambiguous, a prosecution would not be appropriate. I believe that if the conduct objected to was acceptable in the country where it occurred and likely necessary to obtain profitable business for the company in the shareholders’ interest, but prosecutors wished to prosecute anyway, it would have been quite acceptable for the prime minister to overrule the attorney general and her officials, explaining exactly the reasons, and it would have been quite appropriate for them to have resigned, having lost the confidence of the head of the government. This scenario would not be illicit political interference in the course of justice; it would be the imposition of reasonable public policy in the national interest. But it is such an explosive area, the prime minister and his inner circle would have to be ready to justify it convincingly on the grounds described.
Where this affair seems to have gone horribly wrong is that the prime minister and his closest advisers seem to have accepted what amounted to a threat by the company to move its head office, with a loss of thousands of jobs, and the prime minister and his closest officials seem to have emphasized the employment issue, which is important, but must not be taken into account in the rightful and equitable selection of legal options by the attorney general. Second, they appear, in effect, to have allowed the government of this country to be blackmailed by a management of a recurringly legally questionable (though distinguished and successful) company. Sovereign governments cannot accept in any circumstances to be blackmailed by their own subjects. In the current dispute over the detention of the Chinese businesswoman whose extradition is sought by the United States, this country was subjected to pressure by the two most powerful nations in the world, and I believe has handled the issue correctly by allowing our laws to operate without interference. But in internal matters, sovereign governments cannot allow their constitutional authority to be undermined or suborned. There is an appearance, and I emphasize that it is only an appearance at this point, that the Trudeau government violated that principle. If that occurred, it was a corrupt act.
The government’s second serious mistake was that the prime minister himself or a designated senior official should have advised the minister of their concerns and stressed that they were not political but legal and were about whether the national interest could be accommodated without compromising the integrity of the legal enforcement system. Instead, Jody Wilson-Raybould and some of her officials seem to have been repeatedly importuned by a motley sequence of officials, some of them supposedly non-political, emphasizing economic and political side-effects. The prime minister, his principal secretary, the clerk of the Privy Council, and others should all have realized that what they were doing was improper, amateurish and politically dangerous.
Finally, none of the principals has played the after-game well. Wilson-Raybould, if she thought she was the subject of unacceptable political influence, should have resigned, and not consented to be shuffled to another ministry. And once the matter had got out of control, every subsequent day has been a missed opportunity by the prime minister to explain a reasonable context for what happened and set the record straight. The prime minister endlessly repeating on autocue his enthusiasm to maintain jobs doesn’t answer the questions that have been raised. Self-serving puffery about his absurd preoccupation with excessive notions of environmental protection (bad public policy in itself) is so irrelevant to the crisis he has provoked that the executive and parliamentary authority of the regime is evaporating.
That is not a process that can go on indefinitely, and if the government’s conduct really was unexceptionable, none of this need have occurred at all. Justin Trudeau can still clean it up, by addressing the real issues: whatever is the right thing for prosecutors to do can still be done, but the government has foolishly straddled a serrated political knife-edge. Disaster looms, but could still be avoided.