OTTAWA—A deal to allow SNC-Lavalin to avoid criminal liability could still be on the table amid a furor over whether the Trudeau government tried to meddle in the prosecution of SNC-Lavalin, the Star has learned.

“My understanding is when criminal proceedings are ongoing that that option is always available,” Public Services and Procurement Minister Carla Qualtrough said in an interview.

The requirement to continually assess the strength of the prosecution case, evidence, witnesses, and changing circumstances are “an ongoing obligation” within the DPA (deferred prosecution agreement) regime, as in any prosecution, she said.

Qualtrough, a lawyer, is the minister for federal procurement and shares responsibility for the government’s corporate integrity reforms.

She underlined that she is not the attorney general and the definitive opinion would have to come from David Lametti, Jody Wilson-Raybould’s successor and a Quebec MP, but said her understanding is that it is remains open to the attorney general to intervene.

“If you think of a criminal trial, maybe a prosecutor said no (to a deal) because he or she thought the evidence was really strong and then finds out two months later it’s less strong, maybe a witness doesn’t come through,” said Qualtrough. “So there’s always an option for both the prosecutor and the attorney general as long as the criminal proceedings are still underway to exercise that option of pursuing a DPA. So the decision isn’t final,” she said. “It’s kind of revisitable.”

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Wilson-Raybould was shuffled out of the job as attorney general, she says, after she resisted political pressure from the prime minister and others to revisit the decision made by Kathleen Roussel, the director of public prosecutions, not to negotiate a deal with SNC-Lavalin.

Roussel rejected a so-called “deferred prosecution agreement” for SNC-Lavalin on Sept. 4.

Wilson-Raybould says she did her own review of Roussel’s refusal and backed her move completely.

The former attorney general refused when challenged by Liberal MPs to say what the lead prosecutor’s reasons, or hers, were. She cited the preliminary inquiry now underway in which SNC-Lavalin faces bribery and fraud charges, and the company’s court challenge of the prosecutor’s decision not to negotiate a deal.

Wilson-Raybould says she told the prime minister she would not intervene, and that he should refrain from pressuring her to do so.

“These are not cabinet decisions,” she told the justice committee on Wednesday.

Lametti’s office refused to say whether Lametti feels the option is still on the table. “It would be inappropriate for Minister Lametti to comment on this as two court proceedings relative to this issue are pending before the courts,” said spokesperson Celia Canon in an email.

But Qualtrough’s comments reflect a sentiment expressed by Liberal MPs who challenged Wilson-Raybould at the justice committee.

Randy Boissonnault asked the former attorney general to agree that prosecutors must assess reasonable prospects for conviction as well as the public interest, and “the AG should have an open mind to new information coming in all the time. And really, the decision is never final because it’s still active?”

Wilson-Raybould refused to discuss “any of the situations, scenarios, conversations about the national interest with respect to SNC-Lavalin” citing the ongoing two court cases.

Qualtrough pointed to safeguards built into the regime that ensure fairness and transparency if a DPA were to be offered.

If an attorney general decides to intervene, the decision or “directive” must be published in the Canada Gazette, the government’s official record of decisions. Qualtrough said that is really important because if the reasons are public-interest-based “from a fairness point of view you would have to substantiate why you were doing this.”

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Wilson-Raybould left little doubt Wednesday she suspects the government might still move to intervene in the prosecution.

SNC-Lavalin has pleaded not guilty to charges of making illicit payments to the Ghaddaffi regime in Libya between 2001 and 2011. The preliminary inquiry into the charges started Oct. 29 and will resume April 1.

SNC-Lavalin is trying to avoid the prospect of being debarred or banned from bidding on federal contracts for a 10-year period as is currently the policy.

With files from Bruce Campion-Smith

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