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“The prime minister asked me to help out to find a solution here for SNC, citing that if there is no DPA, there would be many jobs lost and that SNC would move from Montreal,” Wilson-Raybould said.

The “national economic interests” measure is quite new to the Criminal Code and was introduced by Trudeau’s own government. The specific text comes from the OECD Anti-Bribery Convention, which has been signed and ratified by Canada – and for which compliance is monitored by the OECD.

As a result, any contravention of 715.32(3) may not just constitute a breach of a Criminal Code provision, but of Canadian participation in an international agreement that is specifically designed to quash judicial favouritism of a country’s own corporations.

“It does seem remarkably tone deaf on the part of the government if they really were harping (on Wilson-Raybould) to this extent, knowing full well what the law says,” said Jennifer Quaid, an expert on corporate criminal liability at the University of Ottawa.

If the OECD determined that Canada was making prosecutorial decisions for economic reasons “we would risk that Canadian companies would not get the benefit of equivalent provisions in other OECD countries, chiefly the U.S. and the U.K.,” she said.

The section is only meant to govern the actions of prosecutors and doesn’t prescribe any fines or jail time if the guidelines aren’t followed. If a prosecutor is found to have granted a deferred prosecution agreement due to the “national economic interest,” the worst outcome is that the agreement would be invalidated by a judge.

But a case could be made that Trudeau might have strayed into unlawful territory by telling Wilson-Raybould to effectively act outside Criminal Code guidelines.

https://twitter.com/Sheila_Copps/status/1102746697535389696?s=19“Knowingly counselling a prosecutor to violate his/her legal duties could be considered an attempt to obstruct justice, which is an offence under the Criminal Code,” said Gerry Ferguson, a distinguished professor of law at the University of Victoria.

The Criminal Code also sets out possible jail terms for anyone who “contravenes an Act of Parliament.”

“It may not violate the Criminal Code, but it violates the rule of law,” said University of British Columbia law professor Mary Ellen Turpel-Lafond, noting that Wilson-Raybould appears to have been counselled to consider something “explicitly prohibited.”

“You’re trying to influence (Wilson-Raybould) to make a decision based on a factor that has already been taken off the table.”

Given its newness, the “national economic interests” provision has never been tested before a court and there are a host of possible defences available to Trudeau and his staff.

“The section outlines what factors a prosecutor cannot consider in making their decision, but does not cover what information other people can put before them,” said constitutional lawyer Nicolas Rouleau.