Errol Mendes is a professor of constitutional and international law at the University of Ottawa, and the president of the International Commission of Jurists, Canada.
In 2018, the Liberal government’s omnibus budget bill slipped in a new legal concept in deferred prosecution agreements that involve “remediation” mechanisms that could allow a company to avoid prosecution when charged with committing a serious criminal offence.
That may not have seemed huge news at the time, but the issue of DPAs are now right in the middle of a national controversy around ethics. The Globe and Mail reported that Justin Trudeau’s office pressed then-attorney-general Jody Wilson-Raybould to consider a DPA for Quebec firm SNC-Lavalin and two subsidiaries, which had been charged with fraud and paying bribes to Moammar Gadhafi’s government. The company has pleaded not guilty, claiming that the bribes in question came from two former employees and were not known or authorized by the company. Mr. Trudeau has called the report “false.”
But by themselves, DPAs are not unethical. It’s how they are used that matters.
Globe editorial: On SNC-Lavalin, Justin Trudeau’s silence isn’t going to help
DPAs have a longer history elsewhere than in Canada. After the conviction and subsequent implosion of Arthur Andersen, one of the top accounting firms in the world, U.S. prosecutors became convinced that the collateral damage to employees, shareholders and other innocent parties necessitated the use of DPAs; since 2000, the U.S. Justice Department has entered into approximately 400 of them. The belief in the United States is that DPAs strengthen compliance and enforcement, while limiting damage to innocent parties.
Britain, meanwhile, established DPAs in 2014, and has only entered into four such agreements. The rarity of their use may be a result of the requirement that such agreements must be concluded under the supervision of a judge who has to be convinced that it is in the interests of justice, and that the terms are fair, reasonable and proportionate. This judicial supervision does not exist in the U.S. scheme for DPAs, but it is in the Canadian legislation.
Opponents fear that DPAs could trigger what is known as “moral hazard,” especially as it relates to criminal corruption, since companies might be less incentivized to avoid criminal corruption if they know a DPA is a likely result. Transparency International Canada, our leading anti-corruption NGO, supported the introduction of DPAs after three years of discussions, but the organization, of which I am a member, did flag concerns.
First, DPAs should be available only to first-time offenders who are co-operative, acknowledge wrongdoing and show remorse through self-imposed compliance systems. Second, the level of pervasiveness of the conduct and level of senior management involved in the misconduct should be taken into account. Finally, the extent of potential effects of conviction on innocent parties should be a factor in deciding whether a DPA is reasonable.
There is little doubt that the conviction of SNC-Lavalin would have tremendous consequences on innocent parties. A 10-year loss of access to procurement contracts in Canada and other places could result in major employment and economic losses in Quebec and beyond – perhaps even endangering the company. There can, however, be debate on whether SNC satisfies the other criteria proposed for Canadian DPAs.
It has been reported, indeed, that there were extensive, intra-governmental discussions on granting a DPA to SNC-Lavalin. Based on such discussions, the minister is allowed by law to issue policy directives to director of public prosecution Kathleen Roussel regarding the case. These would have had to be issued in writing and made public, though, and Ms. Wilson-Raybould did not do so. However, if Ms. Roussel decided, using appropriate principles, that the company should not be offered a DPA, and if this was supported by Ms. Wilson-Raybould, then their decisions should not be subject to pressure from any political source. Such principled decision-making around DPAs should be regarded as a vital part of the rule of law, the independence of the prosecutorial process and Canada’s commitment to combating corruption.
Canadian courts’ subscription to the Britain’s Shawcross doctrine, which sets the limits of political interference on the decisions of an attorney-general who is, in our system, also the justice minister, dictates that while she could consult with cabinet colleagues, those colleagues can only give advice. Any pressure by any government official to persuade the minister to pursue an outcome would be very serious interference with the independence of the attorney-general in the prosecutorial arena. The question now: Did the reported actions of such officials go beyond advice and consultation, and venture into undue pressure? If so, they should be appropriately sanctioned.
But these allegations of serious constitutional violations of the independence of the criminal prosecutorial strategy around SNC-Lavalin must also be based on substantial evidence, proper regard to the history of legislated DPAs, and relevant law and jurisprudence – not on easy political pronouncements or allegations. The integrity of our constitutional order is at stake.