Criminal Law

Secrecy trips up feds in SNC-Lavalin affair: Rosen

By AdvocateDaily.com Staff

Secrecy has been the downfall of the federal government in its approach to the SNC-Lavalin affair, Toronto criminal lawyer John Rosen tells AdvocateDaily.com.

The case, which revolves around the prosecution of the Quebec-based engineering firm related to its dealings in Libya, and the pending charges under the Corruption of Foreign Public Officials Act (CFPOA), has descended into a scandal over allegations former attorney general Jody Wilson-Raybould was improperly pressured by the Prime Minister's Office to intervene in the criminal proceedings, and whether her subsequent removal from the post was a punishment for failing to do so.

“From the government’s perspective, the reason it’s been so badly handled is that they didn’t do it in a transparent way,” says Rosen, founder of Rosen & Company Barristers.

According to news reports, the firm wanted to settle the charges via a "remediation agreement,” a plea-bargain style mechanism that allows a company to pay fines and accept blame while avoiding a criminal conviction for alleged misdeeds.

Otherwise, in the event of a conviction under the CFPOA, SNC-Lavalin, with a staff of more than 50,000 employees, faces a 10-year ban from bidding on government contracts that it claims may well put its financial future in doubt.

In testimony before Parliament, the country’s top public servant, Michael Wernick, said a lively debate ensued in cabinet over whether Wilson-Raybould should instruct the director of public prosecutions to negotiate a remediation agreement, stressing that no legal lines were crossed and that the final decision was Wilson-Raybould’s to make.

“We don’t exactly know what happened, but, by keeping all the discussions behind closed doors, it makes it look like the attorney general was demoted because she wouldn’t toe the party line,” Rosen says. “What bothers me is that they could have gone about it in a more upfront way.

“Let the public know cabinet’s rationale for either accepting or rejecting a remediation agreement and see if they agree. Don’t be afraid to govern, and don’t be afraid of the electorate,” he adds.

Despite the existence of principles of prosecutorial independence, there’s no separating politics from the legal process, says Rosen, who notes, for example, that a decision to directly indict in criminal proceedings is a political one, and so is a decision to settle by way of a plea bargain.”

“The attorney general sits in cabinet, and I don’t see why it’s inappropriate for cabinet to debate and decide these matters from a political perspective. When it comes to remediation agreements specifically, the Criminal Code requires the attorney general to bless any proposed arrangement reached between prosecutors and defendants.”

The SNC-Lavalin case is complicated by specific carveouts in the Criminal Code concerning convictions under the CFPOA, which prevent prosecutors from considering the national economic interest when deciding on whether to enter into a remediation agreement.

Still, Rosen says that shouldn’t rule out the possibility of an agreement entirely.

“Given the balancing factors, why shouldn’t the attorney general, in consultation with cabinet, decide as a matter of government policy whether the negotiation of a remediation agreement is appropriate in a specific case.”

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