Canada has been making unflattering international headlines of late. Not since the folks at South Park came up with their Blame Canada song has our country looked this bad.
The scandal surrounding alleged interference by Justin Trudeau and his entourage to secure a non-trial settlement for SNC-Lavalin on fraud and bribery charges has changed perceptions of our politics and our Prime Minister abroad, and not in a good way. Instead of winning kudos for peace, order and good government, we’re getting warned that we need to pull up our socks.
The Organization for Economic Co-operation and Development, which normally praises our country, recently sought to remind Mr. Trudeau that the OECD’s Anti-Bribery Convention, of which Canada is a signatory, “requires prosecutorial independence in foreign bribery cases.” Concerns over job losses from a conviction of SNC-Lavalin are “are not good enough to justify interference with prosecutorial autonomy,” the OECD’s top anti-bribery official said.
A Transparency International report released last fall blasted Canada for its weak enforcement of its own anti-corruption laws. “We’ve fallen behind and need to play catch-up on a number of anti-corruption fronts,” the organization’s executive director for Canada, Alesia Nahirny, said then. “The inadequacies in our enforcement system can no longer be ignored.”
If this is indeed the case, it’s important to ask why. It certainly cannot be the result of lazy prosecutors or a lack of will on their part to pursue those who contravene the Corruption of Foreign Public Officials Act. More likely, it stems from a lack of resources and the sheer complexity of mounting a case involving white-collar crimes committed abroad.
Our legal and judicial system moves at a snail’s pace. This forces prosecutors to spend an inordinate amount of time on a small number of cases. They must, as a result, pick their battles. It can often mean forgoing the prosecution of lesser, or less easily provable, crimes.
Canada is not unique in this respect. We are, however, one of the last major global economies to provide prosecutors with more flexible anti-corruption tools in the form of deferred prosecution agreements. The fact that this country has yet to conclude a DPA with any defendant makes us an outlier among developed countries.
How much of an outlier? In a study released last week, the OECD noted that 78 per cent of the 890 foreign bribery cases concluded since the 1999 creation of the organization’s Anti-Bribery Convention have involved non-trial resolutions, mostly in the form of DPAs. The latter allow an accused company to avoid a trial and conviction by paying a large fine and undertaking a court-supervised house-cleaning to improve corporate governance and root out corruption within its ranks. In the United States, the study noted, fully 96 per cent of all foreign bribery prosecutions since 1999 have involved non-trial resolutions.
“To the extent that non-trial resolutions save time and free up resources, law enforcement authorities can use fewer resources to resolve more cases,” the OECD study concluded. “This may potentially increase the pace of enforcement investigations and ultimately the number of enforcement actions. Shorter proceedings also maximize prosecutors’ chances of completing an enforcement action before cases become time barred in countries where the prosecution itself, including appeals, must be finally concluded within the limitations period.”
If justice delayed is justice denied, surely the public interest is better served by a degree of expediency on the part of prosecutors. Canada’s director of public prosecutions brought charges against SNC-Lavalin more than four years ago for alleged crimes committed starting 18 years ago. No trial date has been set. It could be years before the case goes to court.
In the meantime, the clock is ticking. Two former SNC-Lavalin officials have already seen fraud and bribery charges against them dropped because of unreasonable delays, according to criteria set by the Supreme Court of Canada in its 2016 R v. Jordan decision. Indeed, prosecutors have very little to show for the exorbitant amount of resources expended on corruption charges involving SNC-Lavalin. The company’s former chief executive pleaded guilty to one count of breach of trust. He received a 20-month suspended sentence, avoiding a single day in prison.
It remains a mystery, then, as to why Director of Public Prosecutions Kathleen Roussel refused to enter negotiations with SNC-Lavalin to conclude a deferred prosecution agreement. She surely had her reasons. But the longer this case drags on, the worse Canada will look.