'DPAs may be good public policy, but not in every case. Sometimes, prosecutions of companies, as well as individuals, should be pursued.'

Last month, Yanaï Elbaz, a former senior manager at Montreal’s McGill University Health Centre, pleaded guilty to four criminal charges, including receiving a bribe in conjunction with the awarding of a $1.3-billion contract to a group led SNC-Lavalin Inc. to build McGill’s new hospital.

Elbaz admitted to receiving $10 million in bribes and, in return, to supplying SNC-Lavalin with insider information that allowed the Quebec construction and engineering giant to adjust its proposal and ultimately win the bid. The hospital is also suing Elbaz for $930 million in damages.

In July, Riadh Ben Aissa, who once served as a vice-president of SNC-Lavalin and a rainmaker for contracts at home and abroad, pleaded guilty to one of the charges he was facing in the same case after serving jail time in Switzerland for fraud, corruption and money-laundering for the company’s activities in Libya. And in February, Pierre Duhaime, SNC-Lavalin’s former chief executive officer, the man who was in charge of the company, is scheduled to stand trial on his own series of criminal charges involving the McGill hospital.

Just last year, Michel Fournier, the former president of the Federal Bridge Corp., a Crown corporation, pleaded guilty to accepting $2.3 million in bribes from SNC-Lavalin for influence in awarding the company a $127-million contract to replace the deck of the Jacques Cartier Bridge in Montreal. SNC-Lavalin itself wasn’t charged in that case.

Still to come is a trial of SNC-Lavalin itself, sometime in 2019. Prosecutors in the case allege the company paid millions of dollars in bribes to public officials in Libya over a decade ending in 2011 to land contracts with the regime of Moammar Gadhafi.

Yet despite this continuing spate of court cases involving a company in which bribery and corruption was long a mainstay of its business, SNC-Lavalin is asking the government and Canadians to basically forget about it all, pay a fine, and act as if it had all been a bad dream.

SNC-Lavalin argues that all these corruption and bribery cases are just ancient history, and that since the scandals began breaking out in 2012, it has cleaned house, got rid of all the bad apples, and built a “world-class ethics and compliance framework.”

Yet despite these claims, the company has been attempting to duck criminal charges for years, using political influence and threats to do so. In 2014, Robert Card, the American brought in to turn the place around, warned that if the company were charged criminally, its future would be threatened and it could be forced to close down. The company could be sold, broken up, and 5,000 jobs lost, he argued.

Thankfully, prosecutors weren’t intimidated, and charges were finally laid in 2015.

Then, SNC-Lavalin began lobbying for Canada to adopt deferred prosecution agreements as part of its anti-corruption legal framework. These agreements allow companies to fess up to corruption practices abroad, institute a series of internal changes, and pay a large fine, all without formally admitting guilt.

Deferred prosecution agreements (DPAs) have become popular in the U.S., because they avoid the time and effort involved in taking these complex cases to trial, and end up filling government coffers with hundreds of millions of dollars in fines. Other countries, including Australia and the U.K., have adopted these agreements to assure more companies are punished for wrongdoing.

Canada has had a particularly weak record in prosecuting foreign bribery, and has been criticized internationally for its approach. For that reason, DPAs have been promoted as an important addition to the anti-corruption arsenal.

The big benefit of a DPA to companies like SNC-Lavalin is that by not being found guilty of corruption or other criminal charges, it won’t have to face automatic debarment from future government contracts for its past deeds.

Ottawa acceded to the pressure to institute the DPAs earlier this year with the passage of special legislation in the budget bill. Talks began with SNC-Lavalin, but, in October, the Public Prosecution Service decided against a negotiated settlement and said it was going to proceed with the trial.

SNC-Lavalin’s stock price dropped as investors worried the company could be vulnerable to a sale or breakup. The company then tried to amp up the political pressure once again, this time taking out a full-page ad in the Globe and Mail pleading for a break.

It argued that “the people who have committed wrongdoing should be prosecuted: Only one individual has charges against him regarding our criminal charges.” Cute. It’s as if only a low-level clerk was involved in the whole shameful affair. The criminal charges against SNC-Lavalin relate to Libya, and it’s true only one ex-SNC-Lavalin executive is still facing charges in that case. But there’s no mention of the fact that Duhaime, the former CEO, the man once in charge of the whole company, is still facing fraud, conspiracy and other criminal charges in connection with the separate McGill hospital bribery case.

SNC-Lavalin then complains that employees and investors are suffering, and that a court case would be a “waste of taxpayers’ money and resources.” Coming from a company that ripped off taxpayers for years through bribery and corruption, it’s a bit rich.

DPAs may be good public policy, but not in every case. Sometimes, prosecutions of companies, as well as individuals, should be pursued.

In the end, if SNC-Lavalin believes it’s innocent of the criminal charges, it should fight them in court, as other Canadians do. Or it should plead guilty, pay a fine and take the consequences. Otherwise, what’s the point of anti-corruption laws and debarment rules if the worst perpetrators are just too big to prosecute?

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