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Politics OECD says potential job losses not a reason to shelve SNC-Lavalin prosecution

A top anti-bribery official at the Organization for Economic Co-operation and Development says the Canadian government should not use the potential loss of jobs as a reason to shelve the criminal prosecution of Montreal engineering giant SNC-Lavalin Group Inc.

Prime Minister Justin Trudeau and officials, including Canada’s top bureaucrat, have cited job losses and other economic consequences as the motive for pressing former attorney-general Jody Wilson-Raybould to order an out-of-court settlement with SNC-Lavalin.

But the agency in charge of overseeing anti-bribery measures at the Paris-based OECD has expressed concerns about “allegations of political interference” in the criminal prosecution of the Quebec construction and engineering firm in relation to its business activities in Libya.

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Drago Kos, the chair of the OECD Working Group on Bribery in International Business Transactions, told The Globe and Mail on Monday that the decision to prosecute SNC-Lavalin should be left to the director of public prosecutions, Kathleen Roussel, and that potential job losses should not be a consideration in granting an out-of-court settlement.

“We are saying this is not good enough to justify interference with prosecutorial autonomy,” he said in an interview. “This is the decision that the prosecution has to make and the prosecution has to make that decision autonomously.”

Ms. Wilson-Raybould has said Mr. Trudeau and other top officials pressed her to override federal prosecutors and order a settlement, citing the economic consequences of a conviction and political ramifications for the Liberals.

Ms. Wilson-Raybould refused to direct Ms. Roussel to negotiate a deferred prosecution agreement with the company, despite repeated attempts last fall to persuade her to change her mind. In early January, she was replaced as justice minister and attorney-general with Montreal MP David Lametti. The Globe reported on Feb. 7 that Ms. Wilson-Raybould was put under pressure from the Prime Minister’s Office to shelve the prosecution.

In the political fallout, Ms. Wilson-Raybould resigned from cabinet, and Mr. Trudeau’s principal secretary, Gerald Butts, stepped down. Jane Philpott, widely regarded as one of Mr. Trudeau’s most competent ministers, resigned as Treasury Board president after the Prime Minister rejected Ms. Wilson-Raybould’s allegations of inappropriate pressure.

Mr. Trudeau, Clerk of the Privy Council Michael Wernick, and other officials have said they expressed concern about jobs and the possible relocation of SNC-Lavalin’s head office outside Canada, but denied they exerted inappropriate pressure on Ms. Wilson-Raybould.

“There is clearly, in the SNC-Lavalin matter, potential job loss and economic impact on workers, suppliers, pensioners and communities,” Mr. Wernick told the House of Commons justice committee on Feb. 21. Testifying for a second time, on March 6, Mr. Wernick said: “I believe that the impacts on jobs, suppliers, customers, pensioners and communities are a legitimate public-interest consideration.”

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Mr. Lametti has not ruled out a deferred prosecution agreement – a decision Mr. Trudeau said will be left to the new attorney-general.

On Monday, the OECD Working Group on Bribery issued a statement saying it is monitoring the political and legal controversy in Canada, and reminded the government in a letter that it must adhere to prosecutorial independence.

“The OECD Working Group on Bribery is concerned by recent allegations of interference in the prosecution of SNC-Lavalin that are subject to proceedings in the House of Commons Standing Committee on Justice and Human Rights,” the statement said.

Canada is one of 44 countries that signed the OECD Anti-Bribery Convention, which is committed to reducing political corruption and corporate crime in developing countries and encourages sanctions against bribery in international business transactions by companies of member countries.

“As a party to the Anti-Bribery Convention, Canada is fully committed to complying with the convention, which requires prosecutorial independence in foreign bribery cases pursuant to Article 5. In addition, political factors such as a country’s national economic interest and the identity of the alleged perpetrators must not influence foreign bribery investigations and prosecutions,” the OECD said.

Under Canada’s deferred prosecution rules, enacted in 2018, the prosecution service is not allowed to consider national economic interest in deciding whether to settle when a company faces charges under the Corruption of Foreign Public Officials Act. A conviction for SNC-Lavalin could mean a ban of up to 10 years from bidding on federal contracts.

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But in his March 6 testimony, Mr. Wernick said the OECD language used in Canada’s deferred prosecution legislation allows jobs to be part of the decision.

“The phrase ‘national economic interest’ in the legislation is a cut-and-paste from the OECD code on anti-bribery. It is, in my understanding – and you can seek advice on this from experts – to distinguish national economic interest from the interest of other countries. If you’re part of this group in the OECD, you cannot favour or let a company off because it helps France versus Germany, or Germany versus Italy, or Canada versus the United States.”

But the OECD’s Mr. Kos rejected that argument.

“Our task is to monitor the enforcement of the anti-bribery convention and the famous Article 5, which prohibits all countries to deal with [criminal] investigations based on political reasons or reasons of economic interests or the identity of the persons involved. So we are very sensitive to such issues," Mr. Kos said. “So we are waiting to see what happens in Canada.”

The Prime Minister’s Office would not comment on the concerns raised by Mr. Kos, but Adam Austen, the press secretary for Foreign Affairs Minister Chrystia Freeland, said Canada has a long history of combatting bribery and corruption, including through the OECD.

“We acknowledge the concerns raised today by the OECD Working Group on Bribery. We will continue to work with and update the working group on the robust and independent domestic processes currently under way in Canada, which the working group has recognized and encouraged,” Mr. Austen said in a statement.

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A decision to negotiate a deferred prosecution agreement with SNC-Lavalin would cast Canada in a negative light with the OECD. Canada is due to undergo one of the OECD’s periodic peer reviews of its anti-corruption system, in which representatives of two other OECD members analyze its compliance with the OECD anti-bribery convention and how effective its regime is. It happens every few years.

SNC-Lavalin faces one charge under the Corruption of Foreign Public Officials Act and one charge under the Criminal Code. It is alleged the Quebec multinational paid millions of dollars in bribes to public officials in Libya between 2001-2011 to secure government contracts. The engineering company says executives who were responsible for the wrongdoing have left, and it has reformed ethics and compliance rules.

According to handwritten notes submitted to the justice committee, Mr. Wernick suggested to SNC-Lavalin’s chief executive officer that the company should approach the director of public prosecutions to discuss the "public-interest argument” for avoiding a criminal prosecution.

In the Sept. 18, 2018, meeting with Neil Bruce, CEO of SNC-Lavalin, Mr. Wernick also wondered if the law allowing deferred prosecutions did not apply to the Montreal company, when would it apply.

The Liberal government amended the Criminal Code in 2018 to allow deferred prosecution agreements as an alternative to trials. When it introduced the measure, the government said prosecutors would be able to use this tool at their discretion to address certain economic crimes if they considered it to be in the “public interest.”

The clerk’s testimony before the justice committee in recent weeks has revealed that officials repeatedly raised the economic ramifications of an SNC-Lavalin conviction – despite the fact that the law prevents the attorney-general from considering that factor in this particular case – but Mr. Wernick said Ms. Wilson-Raybould was not subjected to “inappropriate pressure.”

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Deputy Conservative Leader Lisa Raitt said the OECD’s scrutiny of the government’s conduct demonstrates how serious the matter is and how carefully the Liberal government should proceed.

“I hope the Liberal members of the justice committee realize that this matter is more important than partisan concerns,” she said. “A full and fair inquiry should be encouraged, and this includes having Jody Wilson-Raybould return to committee with the authority to answer all questions.”

The OECD said it was pleased the justice committee and Conflict of Interest and Ethics Commissioner Mario Dion have opened inquiries.

“The OECD Working Group on Bribery is encouraged by these processes, and notes that the Canadian authorities stress that they are transparent and independent. The working group recognizes Canada’s willingness to keep it fully informed of developments in the proceedings, including at its next meeting in June 2019,” it said in a statement.

The OECD has no authority to implement the convention, but monitors participants. Countries are responsible for implementing laws and regulations that conform to the convention.

With a report from Barrie McKenna

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