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In a 2017 consultation paper discussing the prospect of DPAs in Canada (the legislation was passed in 2018), the federal government said such agreements would protect the “blameless,” such as innocent company employees, while enhancing the prospects for prosecuting those who committed the criminal acts inside and outside the company. Obviously, the idea of preventing certain job losses was actually considered at the time to be a benefit of DPAs.

Prosecutors in Canada have already brought charges against individual SNC-Lavalin employees accused of crimes, and the company has reportedly cleaned up its act. Still, prosecutorial independence gives the option to the prosecutors to either offer a DPA or to follow the criminal prosecution route, with the attorney general having the power to agree with the prosecutor or overrule her. A criminal conviction would seem to serve no useful purpose at this point. But it could have a serious impact on the “blameless “described in the government’s consultation paper, because it would prevent the company from bidding on government contracts for as long as 10 years and there could be job losses.

DPAs are available for prosecutors to use, and they are frequently used in the United States. It is, of course, entirely possible that the Public Prosecution Service of Canada had good reasons to not offer one to SNC-Lavalin. It is entirely possible those reasons have nothing to do with the interpretation of the words “national economic interest” as something to do with protecting jobs. But the reasons that prosecutors declined to offer a deal to SNC-Lavalin — and the reason the former attorney general chose not to overrule that decision — have not been revealed. Let’s hope, after so much uproar and scandal, that it was not simply because of a mistaken interpretation of the words “national economic interest.”

Donald Johnston is past Secretary General of the OECD and is a former federal Liberal cabinet minister.