Not quite dead yet, that SNC-Lavalin imbroglio.
The Liberal-dominated justice committee did its best this week, slamming shut the door on any further hearings, least of all God forbid recalling the deposed attorney general Jody Wilson-Raybould.
Prime Minister Justin Trudeau has done his best too, steadily stonewalling opposition and media questions with inane and disingenuous prattle about “standing up for Canadian jobs.”
But the scandal lives, thanks, o cruel irony, to SNC-Lavalin CEO Neil Bruce.
Wednesday, Bruce went on a bit of a media blitz, speaking to reporters from various organizations.
(I tried to be among them, but SNC’s media folks only belatedly answered my two emails, and without addressing the possibility of an interview with Bruce.)
In these various interviews, among other things, Bruce said unequivocally that the company never threatened to move its headquarters (contrary to what the retiring clerk of the privy council Michael Wernick told Wilson-Raybould would happen); has never cited the loss of 9,000 jobs as a reason SNC should get a deferred prosecution agreement or DPA, but nonetheless insisted there’s a public interest for a DPA so those employees aren’t forced to work for U.S. or European firms, and perhaps most curiously, in at least two interviews is reported as saying he still doesn’t understand why SNC wasn’t given a DPA.
Now, I am no lawyer but the Criminal Code section on DPAs, called “remediation agreements” in Canada, is pretty clear.
Under “factors not to consider,” the legislation specifically prohibits the prosecutor (which in this case means Kathleen Roussel, the director of public prosecutions, and her former boss Wilson-Raybould) from considering “the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved” if the organization is alleged to have committed an offence under Section 3 of Canada’s Corruption of Foreign Officials Act.
Section 3 (1) (b) of that act reads as follows: “Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official to any person for the benefit of a foreign public official to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.”
SNC-Lavalin is, unhappily, charged with one count of fraud under the Criminal Code and one count of bribing a foreign public official under paragraph 3 (1) (b) of the Corruption of Foreign Officials Act.
The RCMP laid the charges in February of 2015, alleging the company offered bribes worth almost $48 million “to one or several public officials” of the government of the late Libyan dictator Moammar Gadhafi.
The case has yet to go to trial, with a decision from the preliminary hearing judge expected soon.
Let’s assume the judge throws out the charges, or at least the bribing a foreign public official one.
Well, then and only then would SNC-Lavalin be eligible for a DPA. Until then, it seems the charge precludes the company from being considered.
I note that in her recent decision, wherein she struck down SNC’s application for judicial review of the Roussel/Wilson-Raybould decision, Federal Court Judge Catherine Kane appeared to agree with my feeble analysis, writing that when the Corruption of Foreign Officials Act is involved, “as in this case, the prosecutor is not to consider the national economic interest when forming an opinion that a remediation agreement is in the public interest.”
Thus I’m curious, what the SNC CEO doesn’t understand. (It’s one of the questions I would have asked him.)
In an interview with The Globe and Mail, with Bruce described as “visibly angry,” he said, “Nobody appears to give a crap about whether we fail or not in Canada.
“We want to put this behind us. I mean, we’ve been under this cloud for seven years. No other place in the world would you be under this cloud for seven years … When is this going to end?”
Don’t blame him for being angry, certainly about the length of time it takes a criminal case to move through the courts. Don’t blame SNC for lobbying its pants off, as indeed it did. Don’t disagree that it appears the company has cleaned up its act under his watch, though in fairness, SNC is hardly the corporate equivalent of a first-time young offender deserving of the greatest leniency.
SNC is not at fault for the dizzying effects of its lobbying efforts; that lies solely with the PM, the PMO and senior government officials. The company is not responsible for how those officials interpreted the spectacular pressure to which they were subjected. As Canadians now know all too well, people can experience the same event differently.
Neil Bruce is from Scotland and has the most wonderful accent. He appears to speak plainly. And in that regard at least, how brilliantly he compares to the Canadian PM and most elected officials.
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