Tue. Sep 17th, 2019

What you need to know about the SNC-Lavalin affair

9 min read

On Aug. 14, Ethics Commissioner Mario Dion released his report into the SNC-Lavalin affair, the political scandal that has led to the ouster of two cabinet ministers, the resignation of one of the prime minister’s key aides and opposition calls for Prime Minister Justin Trudeau to step down.

The scandal all centres on one key question: did the prime minister, someone in his office or other government officials try to pressure Jody Wilson-Raybould when she was attorney general to step in and resolve the corruption and fraud case against SNC-Lavalin Group Inc. in an effort to spare the Montreal-based engineering giant from criminal prosecution?

Trudeau has repeatedly denied any inappropriate actions on his part or senior figures in his administration. But Dion found that the prime minister had “directly and through his senior officials used various means to exert influence” over Wilson-Raybould. Those actions, said Dion, violated Section 9 of the Conflict of Interest Act.

The scandal has, so far, led to the cabinet resignations of Wilson-Raybould and former treasury board president Jane Philpott, who were both booted out of caucus and now sit as independent MPs. 

There have been other political ramifications. Trudeau’s principal secretary Gerald Butts resigned from his role, as did Michael Wernick, who stepped down as clerk of Privy Council. Meanwhile, in the wake of Dion’s report, the RCMP has indicated it is “examining this matter” — just weeks before a federal election.

Here is what you need to know about the ongoing scandal:

Federal Ethics Commissioner Mario Dion released a report about the SNC-Lavalin affair, finding Prime Minister Justin Trudeau was guilty of violating the Conflict of Interest Act. (Adrian Wyld/Canadian Press)

What is SNC’s role in this scandal?

SNC-Lavalin faces charges of fraud and corruption in connection with nearly $48 million in payments made to Libyan government officials between 2001 and 2011. If convicted, the company could be blocked from competing for federal government contracts for a decade.

SNC-Lavalin had hoped that its fraud and corruption charges could be resolved with what’s known as a deferred prosecution agreement (DPA), which would spare the company a trial and possible criminal conviction. The company had lobbied federal officials for such an outcome, according to the Globe and Mail.

But in October, the Public Prosecution Service of Canada determined SNC had not met the criteria for a DPA. The company was ordered to stand trial in May.

What is a deferred prosecution agreement?

Last year, the Trudeau government amended the Criminal Code to establish remediation agreements, also known as deferred prosecution agreements.

This amendment, which SNC-Lavalin had lobbied the government to introduce, would allow companies accused of certain economic offences — such as bribery, fraud and corruption — to be spared criminal charges.

Instead, these companies could admit wrongdoing and pay a financial penalty. Part of the reasoning behind the amendment, according to the Criminal Code, was to “reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing.”

In the case of SNC-Lavalin, which employs nearly 9,000 Canadians across the country, the concern has been that a successful criminal prosecution against the company could cost many jobs and damage the economy, particularly in Quebec.

However, the section of the Criminal Code that lays out the conditions for remediation agreements states that the prosecutor, when considering such an agreement, must not factor in the “national economic interest” or “the potential effect on relations with a state other than Canada.”

Wilson-Raybould appears at the House of Commons Justice Committee on Parliament Hill in Ottawa in mid-August. (Sean Kilpatrick/Canadian Press)

What was the nature of the alleged pressure?

On Feb. 27, Wilson-Raybould appeared before the justice committee, where she said that for four months from September to December 2018, she “experienced a consistent and sustained effort by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the attorney general of Canada in an inappropriate effort to secure a deferred prosecution agreement (DPA) with SNC-Lavalin.”

She said this included in-person conversations, telephone calls, emails and text messages, and those in-person conversations included one with the prime minister. 

Wilson-Raybould claims that 11 people from the PMO, the Privy Council Office and the office of the minister of Finance pressured her. (Adrian Wyld/Canadian Press)

“Within these conversations, there were express statements regarding the necessity of interference in the SNC-Lavalin matter, the potential of consequences and veiled threats if a DPA was not made available to SNC,” she said.​

In his report, Dion found four significant attempts by Trudeau and staff to influence Wilson-Raybould, through tactics he found “troubling.” Those included:

  • Trudeau and the then-privy council clerk’s meeting with Wilson-Raybould.
  • Attempts to have Wilson-Raybould intervene in the judicial review of the director of public prosecutions’ decision regarding SNC-Lavalin.
  • The PMO pressing Wilson-Raybould to seek outside counsel, preferably Beverley McLachlin, the former chief justice of the Supreme Court of Canada.
  • The then-privy council clerk’s phone call with Wilson-Raybould, telling her that a solution was needed.

What’s alleged about the PM?

In a conversation with Trudeau on Sept. 17, 2018, and with the clerk of the Privy Council Michael Wernick in attendance, Wilson-Raybould claimed the prime minister told her they need to find a solution for SNC. She said he told her many jobs would be lost without a DPA, and that the company would move from Montreal, that an election was coming up in Quebec and that he was an MP for that province.

“I was quite taken aback. My response — and I remember this vividly as well — was to ask the prime minister a direct question while looking him in the eye. I asked: “Are you politically interfering with my role, my decision as the attorney general? I would strongly advise against it.

“The prime minister said, “No, no, no – we just need to find a solution.”

Wilson-Raybould said she told Trudeau she had done her due diligence and made up her mind on SNC and was not going to interfere with the decision of the director.

She also claimed that when she learned from the prime minister on Jan. 7 that she was going to be shuffled out of her role as attorney general, she told him she believed it was because of the SNC matter. She said that was denied.

In his report, Dion said the evidence showed there were many ways in which Trudeau, “either directly or through the actions of those under his direction, sought to influence the attorney general.

“The authority of the prime minister and his office was used to circumvent, undermine and ultimately attempt to discredit the decision of the director of public prosecutions as well as the authority of” Raybould,  Dion wrote.

Trudeau contravened Section 9 of the Conflict of Interest Act through a series of “flagrant attempts to influence” Wilson‑Raybould to reach an agreement with SNC-Lavalin to avoid criminal prosecution. That section of the code prohibits any official responsible for high level decision-making in government from seeking to influence the decision of another person to “improperly further another person’s private interests.”

Who else does Wilson-Raybould allege pressured her?

Wilson-Raybould claims that 11 people from the PMO, the Privy Council Office and the office of the minister of Finance pressured her. 

Along with the prime minister, those individuals include Trudeau’s chief of staff Katie Telford, his then-principal secretary Butts, PMO staffers Mathieu Bouchard and Elder Marques, Finance Minister Bill Morneau, Morneau’s chief of staff Ben Chin and then clerk of the Privy Council Wernick.

Wilson-Raybould also said that in a Dec. 5 meeting with Butts, she told him she “needed everybody to stop talking” to her about SNC, that she had made up her mind and that further engagements would be inappropriate.

So what if government tried to influence its own AG?

The attorney general is supposed to be an independent, non-partisan role, and the most important part of that non-partisan role is the oversight of federal prosecutions. This independence is a trait not shared by other cabinet roles.

“The role of the AG and prosecutors is to act in the public interest, not in the interest of whoever is in the PMO,” University of Ottawa law professor Craig Forcese wrote in his blog. “They must, therefore, not be under the thumb of the political executive, and indeed must be insulated from political pressures that would, for instance, leave some people favoured in the criminal justice system, and others targeted.”

SNC-Lavalin faces charges of fraud and corruption in connection with nearly $48 million in alleged payments made to Libyan government officials between 2001 and 2011. (CBC)

This means that while cabinet ministers and the prime minister can consult with the attorney general, they cannot instruct or pressure the attorney general to make any specific decision regarding criminal cases.

Wilson-Raybould herself testified that it is appropriate for cabinet colleagues to draw to the attorney general’s attention what they see as important policy considerations that are relevant to decisions about how a prosecution will proceed.

“What is not appropriate is pressing the attorney general on matters that she or he cannot take into account, such as partisan political considerations; continuing to urge the attorney general to [change] her or his mind for months after the decision has been made; or suggesting that a collision with the prime minister on these matters should be avoided.”

The ethics commissioner said that he believed Trudeau misunderstood the distinction — the dual role of justice minister and attorney general — and that they must remain independent of cabinet when exercising their prosecutorial discretion.

Can the AG overrule a decision from the director of public prosecutions?

Yes. The director works “under and on behalf” of the attorney general, who can issue directives regarding specific prosecutions.

Section 10 of the DPP Act says the attorney general can issue directives “on the initiation or conduct of any specific prosecution and with respect to prosecutions generally.”

Indeed, there very well be a situation where “there is disagreement between the DPP and the attorney general as to whether to proceed with certain types of prosecutions,” according to the Public Prosecution Service of Canada website.

However, in those cases, when the attorney general has issued a directive, those directives are to be made in writing, and made public by being published in the Canada Gazette, the official newspaper of the Government of Canada.

What’s been the response to the allegations from the prime minister?

When the story first appeared, Trudeau said the allegations in the Globe story “are false” and insisted that neither he nor any of his staff “directed” Wilson-Raybould to intervene in the case.

He has since denied accusations that he or his staff subjected her to improper political pressure, insisting he and his staff “always acted appropriately and professionally.” 

He admitted he had asked Wilson-Raybould to revisit her decision on the file, and whether she would be open to such a review. Trudeau claimed she was willing to do so, contradicting her testimony. He also said he wished Wilson-Raybould had told him that she felt contacts from his officials amounted to inappropriate pressure.

Trudeau has also acknowledged that during his Sept. 17 meeting with Wilson-Raybould, he pointed out that he was the MP for Papineau, a riding in Quebec — where SNC-Lavalin is based — but denied he raised that point for partisan interests.

Instead, the prime minister has always maintained the dealings with Wilson-Raybould were motivated by a desire to protect Canadian jobs. 

He also said while he disagrees with some of Dion’s findings, and that he doesn’t believe he has anything to apologize for, he takes responsibility “for the mistakes that I made.”

Trudeau insists that neither he nor any of his staff ‘directed’ Wilson-Raybould to intervene in the SNC-Lavalin case. (Sean Kilpatrick/Canadian Press)

Are there any potential criminal implications for the PMO?

In the wake of the ethics commissioner’s report, the RCMP said it’s “examining this matter carefully with all available information and will take appropriate actions as required.”

Opposition Leader Andrew Scheer, in a letter to the RCMP, makes note that the Criminal Code states it’s illegal to “obstruct, pervert or defeat the course of justice.” Scheer alleged that the actions of the prime minister would fall within those contours.

Criminal defence lawyer Joseph Neuberger said if there was a genuine attempt by anybody in the PMO, including the prime minister, to speak with the attorney general about ending an investigation or a criminal prosecution of any type, that can amount to obstruction of justice and/or interference with a public official. More specifically, obstructing a public officer or peace officer in the execution of her duty.

He said it would certainly be fair for the PMO or cabinet colleagues to ask the attorney general about the SNC-Lavalin prosecution, including how it was being handled, or even talk about the ramifications of a conviction.

The potential problem, Neuberger said, is if the conversation amounted to an overt or implicit directive to the attorney general.

Wilson-Raybould has said said that despite the pressure she felt, she did not believe what transpired was illegal.

Dion himself suggested there’s not enough evidence to suggest an obstruction of justice.

“The fact that Ms. Wilson-Raybould was not directed to intervene likely prevented the occurrence of actual political interference in the matter but does little to assist Mr. Trudeau,” he wrote.

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