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5 questions you have about the #JWR / #SNC-Lavalin fiasco

Note: This is not legal advice and represents only Naomi's views.

Image reads Meet Naomi, hashtag Canadian Politics.

1) What the h*ll is going on?

  • On January 14, 2019, the Hon. Jody Wilson-Raybould (JWR) was shuffled from the minister of justice and attorney general to the minister of veteran affairs. People alleged it was a demotion; however, she called it a “great honour” to lead this portfolio.

  • On February 7, 2019, the Globe and Mail published a story that alleged the Prime Minister’s Office (PMO) attempted to press her to intervene in the current prosecution of a major corporation, SNC-Lavalin.

  • On February 18, 2019, Gerald Butts, the Prime Minister’s principal secretary, resigned. He denied the allegations that he put pressure on JWR.

  • On February 21, 2019, the Hon. David Lametti, Minister of Justice and Attorney General of Canada, Nathalie G. Drouin, Deputy Minister of Justice and Attorney General of Canada, and Michael Wernick, Clerk of the Privy Council and Secretary to the Cabinet testified at the Standing Committee on Justice and Human Rights (JUST). Mr. Lametti provided information about certain legal procedures and remediation agreements. Ms. Drouin provided information about the AG’s relationship to the director of public prosecutions (DPP). Mr. Wernick provided information about the process leading up to the legislation of remediation agreements. You can view more here.

  • On February 27, 2019, JWR gave a 30-minute opening statement (normally, these are about 10 minutes, give or take) and she answered questions regarding the allegations at JUST. She alleged that the PMO pressured her to intervene in the SNC-Lavalin matter. You can see more here.

  • On March 4, 2019, Jane Philpott resigned from cabinet in support of JWR.

  • On March 6, 2019, Mr. Butts testified at JUST. He alleges, in a high-level manner, that JWR did not make a final decision. It can be inferred from this statement that the confusion, on his part, was the primary reason why the PMO’s office continued to put pressure on JWR to intervene. You can see more here.

  • Later that same day, Mr. Wernick and Ms. Drouin provided additional evidence to JUST. Mr. Wernick provided evidence included print-outs from social media. You can see more here.

2) What is a remediation agreement? (or a deferred prosecution agreement)?

First, remediation agreements or deferred prosecution agreements (DPA) are the same thing. Or, the former is made-in-Canada of a DPA. A DPA are used in the U.S., the U.K. and Australia. The remediation agreements provisions were enacted under the Criminal Code in September 2018. Remediation agreements are at the option of the DPP; they are not mandatory when a company is alleged to have committed an offence (See Criminal Code, ss. 2, 715.3(1), 715.32(1)). Remediation agreements are available if the following conditions are met:

  • (a) there is a prospect of conviction with respect to the offence;

  • (b) the act/commission forming the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;

  • (c) the agreement is in the public interest and appropriate in the circumstances; and

  • (d) the Attorney General has consented to the negotiation of the agreement. (Emphasis added.)

The following factors must be considered:

  • (a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;

  • (b) the nature and gravity of the act or omission and its impact on any victim;

  • (c) the degree of involvement of senior officers of the organization in the act or omission;

  • (d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;

  • (e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;

  • (f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;

  • (g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;

  • (h) whether the organization — or any of its representatives — is alleged to have committed any other offences[…]; and

  • (i) any other factor that the prosecutor considers relevant (s. 715.32(2)). (Emphasis added.) You can see more here.

If the DPP offered to enter into a remediation agreement, it would be Canada’s first remediation agreement and it would be with SNC-Lavalin.

On March 8, 2019, the federal court of Canada released its decision on SNC-Lavalin’s application for judicial review. The issue was whether the DPP’s decision to not offer SNC-Lavalin a remediation agreement was subject to judicial review for abuse of process. The federal court determined that it did not have authority to review the DPP’s decision to not offer SNC-Lavalin a remediation agreement.

3) What about the 9,000 employees?

As at January 1, 2018, SNC-Lavalin employed 8,762 employees in Canada. SNC-Lavalin has a network of subsidiaries across the globe and employees over 50,000 employees. Canadian employees represent approximately 18% of their total employees. It is not clear the make-up of the 9,000 employees (full-time/contract, etc). In Canada, its revenue accounts for 29% of North American revenue. It was awarded new contracts related to rapid transit system in Quebec in 2018. A major part of its business strategy includes enhancing its Public-Private partnerships (more information here). In other words, their business strategy depends on maintaining its revenue-generating activities under P3-models in Canada.

4) What is this public interest argument? (or national economic interest argument)?

There are references to protecting the public interest. There are also references to national economic interest argument. For purposes of this post, I treat the two terms differently.

Public interest argument is reference to the fact that the DPP may enter into the remediation agreement if it is in the public interest. The public interest refers to a range of factors that the DPP considers to prosecute or not prosecute person(s). Such factors may include: gravity of the incident; political consequences (or the appearance of political interference); the victim(s); the availability of compensation, restitution or reparation; the status in life of the accused or victim(s); public confidence and public order; national security and international relations; alternatives to prosecution; and other factors (See here for more information.) Public interest is assessed at each stage and with each piece of new information. The DPP would offer or invite a person to enter into a remediation agreement if it is in the public interest, as well as if the other above factors are met.

National economic interest appears to be a term that is used by politicos in their statements on SNC-Lavalin which bears no relevancy to the decision to prosecute (see above on the public interest and political considerations).

5) Who is Sheila Copp and why are Indigenous people upset at her?

Sheila Copp is a former Liberal MP who pretends to know what she is talking about when it comes to Indigenous women in politics. She does not and that is why we don’t like her. I know, we are horrible (#sarcasm).

Yes Copps’ name is not Copp but she is a Copp for policing Indigenous women in politics.

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