Wednesday, February 27, 2019

Canada’s SNC Lavalin corruption scandal—Should Prime Minister Justin Trudeau go to jail?

Trudeau’s government was already shabby before this scandal broke—all style and no substance. But even the harshest critics of the bumptious Trudeau could not have expected to be thinking now in terms of criminal corruption

Canada’s SNC Lavalin corruption scandal—Should Prime Minister Justin Trudeau go to jail?

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Canada’s SNC Lavalin bribery scandal strikes at the heart of the legitimacy of capitalism operating presumptively under the rule of law.  It also strikes at the foundations of credible accountability—read honesty and lawful conduct—in the office of Liberal Prime Minister Justin Trudeau.

It’s been common knowledge for years that SNC Lavalin engaged in corrupt practices, both at home and abroad. The immediate focus is the company’s payment of $48 million in bribes to secure contracts in Libya. It’s not just Canada that has laws against paying bribes to foreigners. The World Bank barred SNC Lavalin from its contracts for ten years because of the company’s corruption in Bangladesh. There was also bribery at home. They paid $2.3 million to Michel Fournier, former head of the Federal Bridge Corporation, in relation to a $127 million contract to upgrade the Jacques Cartier Bridge in Montreal. Recently, he pleaded guilty. Chief financial officer Pierre Duhaime also pleaded guilty to breach of trust in the bribery case arising from construction of Montreal’s $1.3 billion McGill University hospital project. The company paid illegal contributions almost entirely to the Liberals in the last general election. The list goes on.
So why haven’t company directors and top management gone to jail before now? And what about the outside auditors?

With the evident intention of protecting SNC Lavalin, Trudeau arranged for new legislation providing for the option of paying a fine, known as deferred prosecution, instead of criminal prosecution. In effect, it makes justice for sale to the rich and powerful.  The company had lobbied extensively, including a dozen people in the Prime Minister’s office, to go with that option. That would have got around Canada’s ten-year prohibition on government contracts that would follow conviction. But federal Director of Prosecutions Kathleen Roussel refused to do that. In any case the case fails to meet legislated criteria, including voluntary disclosure and admission of guilt.

Although both the office of Justice Minister and that of federal Director of Prosecutions are both nominally independent, it’s questionable whether the Justice Minister has the power to tell the Director of Prosecutions what to do. It seems that Jody Wilson-Raybould, a lawyer and Canada’s first native Indian Justice Minister, withstood pressure to try to get Roussel to go with deferred prosecution.

The scandal broke after Trudeau demoted Wilson-Raybould with a transfer to Veterans Affairs, a junior portfolio. After her demotion, she wrote on her web page of the need for the independence for the Justice Minister, seemingly hinting that her independence had been compromised. Then followed apparently authoritative revelations published in the Toronto Globe & Mail imputing corrupt pressure on Wilson-Raybould.

The crime of obstructing justice

The issue now is whether Trudeau did in fact pressure Wilson-Raybould directly or indirectly, despite his unconvincing denials. If he did, he would have committed several serious criminal offences, including obstruction of justice. Wilson-Raybould’s demotion certainly looks like punishment for not acceding to pressure. It doesn’t pass the smell test either that the newly appointed Justice Minister David Lametti happens to be the Member of Parliament for the Montreal constituency where SNC’s Lavalin’s head office is located.

On the one hand, Lametti has the duty to promote the interests of his constituents at SNC Lavalin. On the other, he has a duty of independence and honesty, and a duty to uphold the independence of the Director of Prosecutions. Without the Globe article, it seems likely that Lametti would have quietly overruled Roussel—attempted to anyway. He even mused publicly that he night consider telling Roussel what to do.

Maybe Wilson-Raybould shouldn’t have accepted her new appointment if she found her position unsustainable in ethics and in law, instead of delaying until the unforeseeable article in the Globe came out. Arguably, the month’s delay after her demotion doesn’t impair her integrity, although earlier resignation would have been better. In the meantime, she’s remained tight-lipped, saying she’s precluded from comment because of client confidentiality even as Trudeau speaks openly but unconvincingly about what he claimed did not get said. She’s retained the services of retired judge of the Supreme Court of Canada, Thomas Cromwell, to advise her on what to do.

Client privilege wouldn’t be an issue if Trudeau simply released Wilson-Raybould and his staff from their obligations of confidentiality—as his predecessor Stephen Harper did on another matter.

Client confidentiality has its limits

Of course, client confidentiality doesn’t preclude saying that nothing got said, and a lawyer is expressly forbidden to use it to cover up a client’s crime. This became an issue when Ken Murray, the lawyer for serial rapist and murderer Paul Bernardo, was prosecuted for withholding evidence from the prosecution. He would have been convicted but for the trial judge’s seemingly spurious finding that there was no criminal intent to obstruct justice.

As lapdogs rather than watchdogs, Liberal members in the House of Commons justice committee, in the majority, voted to overrule the full investigation demanded by opposition members of the committee. That leaves only the investigation started by the parliamentary ethics commissioner, Mario Dion. The legislation establishing his office doesn’t provide powers of enforcement, and he only delivers recommendations.

There’s plenty of superficial evidence to require a thorough investigation by the Royal Canadian Mounted Police if they could be nudged into action, perhaps by opposition MPs.  Of course, the whole idea of even starting a police investigation into the activities of the Prime Minister’s office is sensitive, to put it mildly.

Overlooked at this point is the foundational principle of law that it’s a criminal offence for a public officer to fail to take action upon learning of a crime, or even upon suspecting a crime. So far, Liberal members of the Justice Committee appear to have committed that offence, and maybe even Wilson-Raybould herself. In the landmark case of R v Bembridge, adopted by the Supreme Court of Canada as its own, Lord Chief Justice Mansfield sentenced the accountant Bembridge to jail, with a massive fine in addition, for turning a blind eye to embezzlement.

As a side issue, there’s a ready solution if SNC Lavalin were convicted and then excluded by law from federal government contracts. Current management could sell some or all of the company to arm’s-length buyers or to its employees. New owners could then continue the company’s legitimate operations.

Trudeau’s government was already shabby before this scandal broke—all style and no substance. But even the harshest critics of the bumptious Trudeau could not have expected to be thinking now in terms of criminal corruption.

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Colin Alexander -- Bio and Archives | 38 Comments
Colin Alexander was publisher of the Yellowknife News of the North and the advisor on education for the Ontario Royal Commission on the Northern Environment. He lives in Ottawa and has family living in Nunavut.

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