SNC-Lavalin chose to fight the charges in government, rather than court. They did so, we may conclude, because they were given reason to believe it would work

At last the Liberal government has that outside legal opinion it was seeking. A federal court judge has ruled the director of public prosecutions’ decision to bring SNC-Lavalin to trial on charges of fraud and corruption, rather than to negotiate a “remediation agreement” as the company preferred, was a proper exercise of her prosecutorial discretion.

By extension she has endorsed the former attorney general’s refusal to overrule that decision. For the flipside of prosecutorial discretion is prosecutorial independence, hallowed by centuries of common law and, as the judge wrote, “essential and fundamental to the criminal justice system.”

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There’s a reason no attorney general has ever overridden a DPP’s decision in a specific prosecution. It is the same reason the office of the DPP was set up in the first place: to insulate such decisions, so far as possible, from political interference.

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Only in the most exceptional circumstances was it envisaged that the attorney general would overrule her — otherwise what’s the point of the DPP? And in no circumstances is the attorney general’s authority to be compromised — not by direct orders, not by veiled threats or by pressure of any kind, even in the guise of an endlessly repeated suggestion that she seek an outside opinion.

As it happens there are plenty of reasons to think the DPP, Kathleen Roussel, not only had the right to make the decision she did, but was right to do so. A reading of the relevant sections of the Criminal Code suggests that SNC-Lavalin was ineligible for a remediation agreement on multiple grounds: because of the severity of the crimes of which it is accused; because it has not admitted corporate responsibility; because it did not voluntarily disclose its alleged wrongdoing; because the chief argument for waving all these away, WHAT ABOUT THE JOBZ, is expressly precluded from consideration.

As such it would have been quite improper for Jody Wilson-Raybould, the former attorney general, to order her to do what the law forbids. But even if you disagree with their decisions, you are not the DPP, or the AG: as a matter of law — as a matter of constitutional principle — it is their call to make, each in their separate capacity.

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So there are two layers of insulation protecting prosecutorial discretion. Astonishingly, the prime minister’s people appear to have tried to penetrate both. We have heard much of the many entreaties to the AG to lean on the DPP, by the prime minister, his principal secretary, his chief of staff, the clerk of the Privy Council, the finance minister, and his chief of staff, among others. Much less has been written about their repeated efforts, according to the former attorney general, to get at the director of public prosecutions without her.

For example, she testified to the Commons justice committee that in a phone call with her chief of staff, Elder Marques and Mathieu Bouchard, advisers to the prime minister, said “they hear that our deputy (justice) minister … thinks we can get the (Public Prosecution Service of Canada) to say ‘we think we should get some outside advice on this.’ ”

Photo by Gary Clement/National Post

In another call, “they raised the idea of an ‘informal reach out’ to the DPP. My COS (chief of staff) said that she knew I was not comfortable with it, as it looked like and probably did constitute political interference. They asked whether that was true if it wasn’t the AG herself, but if it was her staff or the DM.” The deputy minister, for her part, “said that Finance had told her that they want to make sure that Kathleen understands the impact if we do nothing in this case.”

And not just the DPP. The prime minister’s people seem to have reached down even further into the prosecutorial ranks. Bouchard allegedly told her chief of staff he understood “that the individual Crown prosecutor wants to negotiate an agreement, but the director does not.” As Wilson-Raybould mused to the committee, “I can’t help but wonder why he would bring that up. How he would know that. How he garnered that information.”

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Indeed. It is one thing for the AG to personally instruct the DPP in the manner the law prescribes: by a written directive, published in the Canada Gazette. “Informal reach outs” by political staff to the DPP and to other prosecutors are just wildly out of bounds.

The impression left is of a mass swarming of the attorney general’s office and that of the PPSC. If so it would mirror SNC-Lavalin’s swarming of the upper reaches of government. We have heard much, again, of the many visits by lobbyists to various ministers and other officials, all of them recorded in the lobbyist registry. We are only lately hearing about rather more direct, and unregistered interventions.

There are two layers of insulation protecting prosecutorial discretion. Astonishingly, Trudeau’s people appear to have tried to penetrate both

One is an extraordinary phone call from the chairman of SNC-Lavalin, Kevin Lynch, to the clerk of the Privy Council, Michael Wernick, on Oct. 15. The phone call was extraordinary in two respects. One, Lynch is a former clerk himself, hired as chairman in 2017, by which time the company’s assault on Ottawa was well under way. Two, Wernick, by his own account, had to explain to the former clerk that “he would have to go through the attorney general and the director of public prosecutions through his counsel.”

Then there is the letter from the company president, Neil Bruce, to the prime minister, dated the same day, complaining of the company’s inability to make the prosecutor see things their way. Why, she had even declined to meet with the former Supreme Court judge, Frank Iacobucci, whom the company had retained as counsel, the man Wernick pointedly described to Wilson-Raybould as “no shrinking violet.”

It says a great deal that the company’s response to being charged with serious crimes was not to fight the charges in court, but to fight them in government: to lobby the politicians, to attempt to intimidate the prosecutors, to arrange calls between old civil service chums. They did so, it is logical to conclude, because they thought it would work — because they were given reason to believe it would work.