The SNC-Lavalin case is indeed a Rubik’s cube. There are many aspects on which people can speculate, and indeed people are speculating. But unless you can spend many hours sorting through all the detail, it is very hard to know what to believe. Let me review the personal conclusion that I reached after considerable time reading and watching five hours of public testimony on March 6.
The most important job of the government, which includes the Minister of Justice / Attorney General, is to protect the national interest, which includes protecting the rule of law. In a case like this where protecting the law could conflict with protecting the national interest, is there a way to do both? The answer is yes, with a Deferred Prosecution Agreement. A Deferred Prosecution Agreement (DPA) is defined as a voluntary alternative to adjudication, in which a prosecutor agrees to grant amnesty in exchange for the defendant agreeing to take certain remedial action. It is not a get-out-of-jail-free card. A DPA enables the defendant to penalize the specific people involved in crimes of corruption, while reducing potential damage to the company itself, and its innocent employees, big and small shareholders, suppliers, and pensioners. Legislation was passed in December to introduce the DPA into Canadian law, in order to put not just Canadian companies but Canada itself on a level playing field with the UK, France, Australia, USA and others.
SNC-Lavalin is one of only 12 companies in the world capable of taking the biggest multi-year infrastructure projects from start to finish. Under the old law, it was likely that SNC would go to trial and be barred from bidding on contracts in Canada for 10 years. Most of SNC’s work for the next 5 to 10 years, such as subway and transit extensions in Toronto, Montreal and Vancouver, and the Darlington nuclear refurbishment is already booked. But barring SNC from bidding could mean there could be no Canadian company doing major projects in Canada for 5 to 10 years after that. You never want to do a major project with only one bidder. It is clearly in the national interest to have Canadian companies and their Canadian suppliers of goods and services bidding on major projects in Canada.
We must consider that for good reason the Harper government privatized Canada’s nuclear reactor business. SNC is now the only company in the world to hold the very strict safety license to do certain work on the unique extra-safe CANDU heavy-water reactors that provide 60 per cent of Ontario’s electricity (Ontario is 40 per cent of Canada’s population) It is clearly in the national interest to protect the ability to do that work. It could take up to a decade for another company to go through the rigorous process of getting such a license.
By passing the law to introduce the DPA in Canada, the government was doing its job to protect both the national interest and the rule of law. But Canadian prosecutors have no experience with the new DPA tool and are on a steep learning curve. The prosecutor had reason to be fed up with SNC and wanted to get a conviction. The Minister of Justice / Attorney General was caught between the two sides of her job; enforcing old laws and introducing new laws.
According to testimony from experienced civil servants, it is customary for the Ministry of Justice to seek outside council to ensure the best possible introduction of a new law. That was refused. And it is incumbent on the prosecutor and the AG to consider all new evidence up until a case goes to trial. That was refused. It is incumbent on the PM and Cabinet to ensure those things are done and so far they have done their job, albeit awkwardly. We should all hope and expect that if any of the opposition parties were in government, they would have done the same thing. But it’s not finished yet.
Readers may be interested in these related commentaries –
Opposition actions on the SNC Lavalin case could come back to haunt them – Hugh Holland
In the case of SNC, the PM has chosen political meddling over rule of law – Dave Wilkin
A political Rubik’s cube if ever there was one – Hugh Holland
Hugh Holland is a retired engineering and manufacturing executive now living in Huntsville, Ontario.
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