/Terence Corcoran: Trudeau will win a fight over SNC-Lavalin

Terence Corcoran: Trudeau will win a fight over SNC-Lavalin


There are unmistakeable Putinesque aspects to Prime Minister Justin Trudeau’s handling of the SNC affair: arm twisting of bureaucrats, a minister mysteriously removed from her post, misleading responses to questions, refusal to lift cabinet confidentiality for a criminal investigation, and — most bizarre — the KGB-style decision of the RCMP to call off its criminal investigation until after the election.

All very intriguing, but Conservative Leader Andrew Scheer is making a big election mistake in his attempt to use the SNC affair to turn Trudeau into a corrupt, lying autocrat. There are plenty of other more substantial arguments for replacing the Trudeau Liberals, from foreign affairs to climate policy, pipeline fiascos to fiscal decisions.

To Scheer and other observers, all indicators seem to point to guilt. After all, have not four federal agencies — the RCMP, the ethics commissioner, the former attorney general and the director of public prosecutions — apparently concluded there’s something deeply sleazy about the prime minister’s attempt to interfere with a criminal prosecution of SNC-Lavalin?

Not quite.

First, the RCMP probe is not yet a formal criminal investigation. The police force obviously has no case to date. That’s why it is attempting to get access to cabinet documents as part of its search for evidence of possible criminal acts, such as improperly pressuring former justice minister Jody Wilson-Raybould and Canada’s chief prosecutor to refrain from prosecuting SNC and instead sign a deferred prosecution agreement. So there’s nothing there yet.

Second, the August report of the ethics commissioner, while filled with juicy material, including evidence that various Canadian corporate bigwigs lobbied Trudeau and his cabinet on behalf of SNC, is far from conclusive. The report says the prime minister and his entourage broke ethics rules when they attempted to railroad Wilson-Raybould to make decisions she did not want to make.

SNC executives and their corporate associates attempted to explain to the government — legitimately lobby, in other words — that the company and its employees could be at risk if the prosecution were to proceed. Such activity is far from an indication of corporate malfeasance or corruption. The justification for rescuing SNC has been and remains strong, including the fact that Canada’s major trading partners, and Canada’s Criminal Code, specifically allow for deferred prosecution agreements.

Further, nobody has yet explained why Wilson-Raybould and the prosecutor’s office refused to negotiate with SNC. Nor has there been much exploration of the fact that if SNC were a British or American company, it would have been able to settle out of court long ago.

One legal commentator this week said that Trudeau would have no legal defence against a charge of obstruction of justice. Under the Criminal Code, obstruction occurs when someone “wilfully attempts in any manner to obstruct, pervert or defeat” the course of justice. In the SNC case, the commentator said, Trudeau’s claim to be protecting Canadian jobs would “not be a defence in court.”

Another legal expert disagrees. Kenneth Jull, a lawyer with Gardiner Roberts LLP and an adjunct law professor at the University of Toronto, said in an interview that one cannot reach such a blatant conclusion. As Jull has argued in the past, such instant findings of guilt fail to take into account “the difference between whether jobs are jobs of innocent people who are not guilty of wrongdoing versus the jobs of people guilty of wrongdoing.”

… if the objective was to protect many people who are not guilty of wrongdoing, it ‘would be perfectly appropriate for the prime minister to have discussions with the attorney general’.

Kenneth Jull, Gardiner Roberts LLP

Canada’s Criminal Code was specifically amended to follow global trends, including a statement of objectives that gives the government strong reason to negotiate with SNC. The objective, it says, is to “reduce the negative consequences of the (corporate) wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.”

While the law makes it clear that the government cannot strike a deal with corporate criminals by claiming that it would be in the “national economic interest,” Trudeau can rightly argue that his government’s attempts to settle with SNC were based on the solid legal ground of protecting what Jull refers to as “innocent stakeholders.”

If the Trudeau government had been attempting to protect guilty SNC executives and employees by negotiating a deferred prosecution agreement, the obstruction of justice charge might stick. But if the objective was to protect many people in the company who are not guilty of wrongdoing, Jull said it “would be perfectly appropriate for the prime minister to have discussions with the attorney general.”

One unknown: key evidence in the case could exist in cabinet documents now behind cabinet confidentiality rules. The RCMP is blocked for now. But could some other source emerge to reveal cabinet secrets? What are the penalties for breaching cabinet confidentiality?

The University of Ottawa’s Yan Campagnolo, an assistant law professor and expert in cabinet secrecy, said in an email that a minister who knowingly disclosed cabinet confidences “would normally face political sanctions” and may “receive a warning, be demoted or dismissed by the prime minister, or be excluded from caucus.” A public servant may face disciplinary sanctions, such as a “warning or suspension or even dismissal from public service.”

Given the light penalties, what, exactly, prevents former cabinet insiders from talking?

Meanwhile, as the election plays out, Trudeau will have many opportunities to point to the innocent-stakeholder clause as a solid justification for his government’s attempts to rescue SNC from a court proceeding. The effort may have been ham-fisted, over-the-top and technically illegal — and there will be a legal price to pay if that’s the case. But it is a weak political issue and unlikely to lead to an election loss.

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