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Opinion A deferred prosecution agreement is not what you think it is

Yves Boisvert is a columnist for La Presse.

A few months ago, Via Rail awarded a $989-million contract to Siemens to provide the 32 trainsets that will replace its fleet for Canada’s busiest rail corridor – representing at least a tacit endorsement from this Crown corporation of Canada for the German multinational. And why not? It is one of the world’s largest electrical engineering companies, after all.

But just a decade ago, this might have been far more controversial. In 2006, Siemens was accused of organizing a global system of corruption, paying more than US$1.4-billion in bribes to government officials around the world. In the end, it agreed to a deferred prosecution agreement (DPA) with German prosecutors: Charges against the corporation were dropped in exchange for an agreement to pay a 395-million fine, overhaul its management, and allow its operations to be closely monitored. In the United States, the company paid fines of US$450-million to the Department of Justice and US$350-million to the Securities and Exchange Commission.

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Indeed, this deal was only one of the roughly 20 to 40 DPAs that are negotiated every year in the United States. Officials there see it as an efficient tool to “impose reforms, impose compliance controls, and impose all sorts of behavioral change” in the corporate world. Many European countries have adopted the same practices, including Britain and the Netherlands. The same rules were incorporated into Canada’s criminal law, too, and 13 years later, it’s clear that this DPA was enough for Canadians to believe that Siemens had rehabilitated itself.

But when a Canadian company such as Quebec engineering firm SNC-Lavalin tries to negotiate such an agreement, it’s as if we’re talking about corruption of the highest degree. And now, pundits are acting as if Justin Trudeau’s government is operating like John A. Macdonald’s during the Pacific Scandal, which saw MPs accepting bribes from businesses hoping to build Canada’s transnational railway.

We do not know the exact legal reasons for the decision to pursue criminal charges for SNC-Lavalin instead of a DPA, only that then-justice minister and attorney-general Jody Wilson-Raybould backed up the director of the Public Prosecution Service of Canada (PPSC) in that pursuit. We do know, however, Ms. Wilson-Raybould felt pressed by the Prime Minister’s Office to reverse that decision.

Never mind that the law permits this, nor that we’ve only heard from two witnesses. Some commentators have already concluded that she was the victim of undue pressure, if not a grave assault against her constitutional independence. Andrew Scheer has even claimed that this represents a criminal attempt to obstruct justice.

It does not.

A DPA is not a way to get a crooked company off the hook: It is a way to make sure it is rehabilitated, watched, and financially punished for what it did. All of that must be judicially approved and monitored. Should one of the long list of conditions be not respected, then criminal prosecution would continue, since it is only deferred as long as the terms are complied with. Individuals involved in any scheme, too, are personally prosecuted in a criminal court. In other words, DPAs aren’t soft on corruption – they’re ways to ensure a company has cleaned up and pays the public for its misdeeds.

The dominant narrative outside Quebec is that the Liberals are trying to save a corrupt Quebec company for partisan reasons. Granted, the fact that the Prime Minister is an MP for a Quebec riding, as he himself allegedly noted, is not a legal argument. But being from Montreal does give Mr. Trudeau a better sense of what SNC-Lavalin represents to this country, just as Stephen Harper did with our oil and gas industry. But more importantly, most of SNC-Lavalin’s Canadian staff, which had nothing to do with the alleged misdeeds from its executives, actually work and live outside Quebec. Trying to use legal tools to protect strategic economic corporations from bankruptcy or foreign takeover, especially one that’s woven into cities across the country, is not in itself unprincipled.

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Some pundits-turned-legal experts have decided SNC-Lavalin did not meet all the required conditions for a DPA. Without details from the PPSC, that may well be true. Maybe the independence of the A-G is harmed by conversations to convince her to legally change her mind on an issue. Maybe the people who pressed Ms. Wilson-Raybould went too far.

But until we hear from other witnesses, can we cut the grandstanding? This is not the Canadian Pacific Railway scandal. In fact, if there must be a train-related lesson to take from all this, it’s the telling fact that we’re letting a company rocked by massive scandal build our next generation of trains – with nary a peep. Forgetting that would only let the conversation around SNC-Lavalin go off the rails.

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