As we move fully into the second month of the SNC/PMO Scandal, I think that now would be a good time to look ahead and see where this all could lead. After the courts decision on Friday to deny SNC Lavalin’s attempt to overrule the prosecutors and force them to consider a Deferred Prosecution Agreement (DPA), it seems that all roads now go through new Attorney General David Lametti.
But is it as clear cut as that and can Lametti wave his legal wand and give SNC a DPA? Well it’s the details around this that seem to be getting overlooked, which raises a few different points. Our first stop here is looking at the law itself, the “Corruption of Foreign Public Officials Act”, where we look at the new section added around DPA. That says:
(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, 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.https://laws-lois.justice.gc.ca/eng/acts/C-45.2/
In my reading of that, it seems pretty clear that the “Jobs, Jobs, Jobs” argument is a mute one under the law. But you would have to assume that the PMO always knew this fact, so what was their path forward? Ignoring it and trying to instruct the prosecutor to go against the law? It would seem to be that or simply fix the law, a law that I might mention they wrote just the year before. And it seems that fixing the act is not something they are looking at. Another potential roadblock here comes courtesy of University of Ottawa law professor Jennifer Quaid, who pointed out this fact on CPAC last week:
Catch that everyone? According to Quaid’s assessment, the AG only has the right to offer SNC a chance to negotiate a DPA; the AG cannot simply give them one and overrule the whole process. And to top it off, whatever DPA was agreed to would need to be agreed to by the court. Remember on Friday the Federal Court shot down SNC, federal Judge Catherine wrote in her decision that “prosecutorial discretion is not subject to judicial review, except for abuse of power.” Hmmm, that’s an interesting thing to point out at this point in the game. Would the actions of the PMO to date cross that line? That’s up for debate. And that also brings me to a great Twitter thread today from York University law professor and former NDP MP Craig Scott:
Scott makes a great point here about what is appropriate and not when it comes to who can talk to who when and how. As Scott points out, it’s actually the prosecutor who has the duty to review and revisit the case, not the AG. And if SNC’s lawyers are to engage with the prosecutors, they can only do so to bring fresh evidence to the fore; they don’t get to badger “jobs, jobs, jobs” endlessly, they actually have to bring new evidence forward.
On top of that, Scott and University of British Columbia assistant professor Andrew Martin, who specializes in legal ethics, point to big problems with the PMO’s approach to the AG, especially when it comes to why exactly they needed an outside legal opinion. Martin points out that “the only reason to suggest to get an outside opinion is that she’s wrong”, and he’s exactly right; if the PMO agreed with her decision, agreed with her professional judgement, there would be no need to ask for an outside opinion. By asking for that outside opinion, it looks like the PMO was shopping around for a compliant view that could buttress the course of action that they so wanted to take. Folks, that’s just not right.
So going forward it’s clear that there is no clear path ahead for the government when it comes to a DPA for SNC, but going forward though one thing is disturbingly clear; the PMO and the Prime Minister himself feel that they have done nothing wrong here. He and Gerald Butts have said as much, and they saw nothing wrong with pressuring the Attorney General. So if they believe that is fine, shouldn’t we just assume that they are going to do the same to David Lametti now?
It seems that’s all we really can do because the only way we’d find out is for Lametti to blow the whistle on the PM himself, and given his comments on SNC-Lavalin to date, that doesn’t seem to be likely to happen. We will see as things go ahead, but with the few legal options it has before it, it will bear watching what the Prime Minister and the government do next.