The Federal Court of Canada has dismissed a request by SNC-Lavalin to review a federal prosecutor’s decision declining to settle criminal charges against the company out of court.
The Federal Court of Canada has declined to review a federal prosecutor’s decision to proceed with charges of corruption and fraud against SNC-Lavalin Group Inc.
Explaining that such a review had no reasonable chance of success, Federal Court Justice Catherine Kane of Montreal stressed the independence of prosecutors and the attorney-general – an issue at the heart of a political dispute that has shaken Ottawa and led to dramatic hearings at the Commons justice committee.
Under a 2018 federal law, prosecutors may negotiate an out-of-court settlement known as a remediation agreement, with companies that face charges. When Kathleen Roussel, the director of public prosecutions, declined to do so, the Quebec engineering giant went to Federal Court seeking an order to stop the prosecution.
Quoting from a 2002 Supreme Court ruling, Justice Kane said, “The quasi-judicial function of the attorney-general cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution.”
She added that the request for a judicial review “has no reasonable prospect of success in the context of the law and the governing jurisprudence and taking a realistic view.”
She said the reasons courts do not interfere in prosecutors’ decisions include that doing so would bring the justice system to a standstill, and that the courts would compromise their own independence if they supervised prosecutors.
SNC-Lavalin said it is disappointed. “We applied for judicial review in the hopes that such a review would elicit the reasons for the decision taken by the director of public prosecutions not to offer SNC-Lavalin a negotiation of a remediation agreement,” media spokesman Nicolas Ryan said in a statement. “Our objective was to negotiate a remediation agreement that would have been both in the public interest and in the interest of our innocent stakeholders: our employees, customers, shareholders and pensioners. SNC-Lavalin will vigorously defend itself against the charges in court if no remediation agreement is possible.”
In a judicial review, courts look at the fairness of proceedings undertaken by government tribunals and certain officials. But prosecutors’ decisions have long been seen as off limits to such review, except in cases involving abuses of power. SNC-Lavalin did not allege such an abuse.
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Justice Kane’s ruling underscores the constitutional protection given to prosecutors and the attorney-general in exercising their discretion over criminal cases. At hearings of the Commons justice committee in the past two weeks, former attorney-general Jody Wilson-Raybould said she was subjected to inappropriate pressure from Prime Minister Justin Trudeau and senior officials in more than 20 contacts related to her refusal to issue a public directive to Ms. Roussel to negotiate a remediation agreement. Mr. Trudeau, his former principal secretary and the Clerk of the Privy Council have all denied that they acted inappropriately.
The ruling does not foreclose the possibility that SNC-Lavalin will be given a chance to negotiate a remediation agreement, also known as a deferred prosecution agreement (DPA).
Mr. Trudeau said he would not rule out such an agreement for SNC-Lavalin when asked about the Federal Court decision at a news conference in Iqaluit.
“In the specific case of DPA, that is the attorney-general’s decision to make. That is what I have been consistent on for many months, and the attorney-general will make that decision,” he said.
Justice Minister and Attorney-General David Lametti, a Montreal MP who replaced Ms. Wilson-Raybould when she was demoted to Veterans Affairs in January, has said a deferred prosecution is still on the table.
Outside lawyers retained by the director of public prosecutions had opposed a judicial review, calling the decision not to negotiate a remediation agreement a “classic case of prosecutorial discretion.”
Lawyers for SNC-Lavalin argued that decisions on remediation agreements are more akin to an “administrative decision” – that is, to a tribunal ruling – because remediation negotiations go on in parallel with a continuing prosecution.
In court documents filed in the case, SNC-Lavalin said it had made “permanent transformative changes” to its business practices, and “easily met” requirements for settling a federal prosecution out of court.
Sean Fine
Robert Fife