Continued from Gaslighting on Steroids. The Human interest & legal info is here.
The Ottawa bubble appears to be feeling the effects of climate change. The Polar Vortex driven by Canadian Media is spinning out of control: logic and common sense appears to be frozen solid, sacrificed on the altar of click-bait journalism where shaping how the public is supposed to think matters more than reporting real news.
The Clinton Email coverage was also breathless speculation by media and it led to Trump. Canada is on the same track with the media-constructed SNC scandal. Our Democracy is at risk and not well served by a Postmedia monopoly on Canadian news that leans blatantly Conservative.
The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence
“Prosecutorial independence should not be an excuse for prosecutors not providing reasons for important decisions.”
The problem from the beginning was that the AG refused to explain or justify her decision on why a DPA was not considered for SNC by her or by the DPP. She believed, just saying “I’ve made up my mind” to the PM, the PMO, the Finance Minister, and the PCO was good enough! IMO, that’s inexcusable behavior towards her colleagues when collateral damage to thousands of innocent workers is a risk.
“Specifically, the decision not to attempt to negotiate a remediation agreement may or may not be justified, but the public at present does not have enough information to judge. The decision has not been publicly explained by either the DPP or the former AG. Jody Wilson-Raybould in her otherwise full, detailed and at times contemporaneously recorded explanation of events, refused to explain either her or the DPP’s reasoning on the basis that the Lavalin prosecution was still before the courts.
Canadian courts are, however, secure enough in their independence to be able to withstand an explanation of a prosecutorial decision not to negotiate a remediation agreement. The sub judice rule, like the Shawcross principle itself, continues to evolve. Even if it would be inappropriate for an ordinary Member or civil servant to make reckless remarks while protected by Parliamentary privilege, both the AG and the DPP should be able to explain their decisions including their understanding of the public interest even if the matters are still before the courts.”
Emphasis added. Electronic copy available at: https://ssrn.com/abstract=3367097
Before diving into the Shawcross Doctrine, it’s important to consider the human element that was sorely ignored by Canadian media. Protecting innocent Canadians so they don’t become collateral damage in the prosecution of a Corporation is why we have a deferred prosecution agreement (DPA) today.
SNC has approximately 9,000 employees with more Canadians west of Quebec than in QC. Moreover, the hate/antagonism directed at QC is at an all-time high in Canada, and it’s simply inexcusable b/c it’s caused by media not reporting real news.
Media revel in an artificially-created scandal where no palms were greased, no laws broken, no lines crossed, and no sex! In fact, we’ve been told by Americans that they would welcome a scandal like ours instead of what they’ve been dealing with. Go figure.
The following is a heart-warming story of an SNC employee. It’s worth the read. If you’re on LinkedIn, you can read it there.
Remediation Agreements, the Shawcross Doctrine
Short videos on the testimony given by Canada’s former Attorney General, Jody Wilson-Raybould at the Canadian House of Commons Standing Committee on Justice and Human Rights in Twitter thread below. The videos clearly show that no Law was broken and no line was crossed: the AG was not directed.
Full VIDEOS of all Justice meetings are also available: Remediation Agreements, the Shawcross Doctrine and the Discussions Between the Office of the Attorney General and Government Colleagues. List of Committee members.
Ishat Reza reports on DPAs and anti-bribery trials in other countries as well. The OECD, in its Mar 21, 2019 study on non-trial resolutions, referred to these consultations by Canada as “in depth”.
Please note the error: consultations occurred in late 2017, not 2018.
Ishat Reza is a former OECD Public Sector Integrity official, ex civil servant and Canadian lawyer. Her Twitter thread is below:
As explained in Gaslighting on Steroids… there is plenty of pundit opinion that our National Economic interests cannot be included in a DPA but experts don’t agree with the news media or their Pundits.
If national economic interests are excluded, no Corporation would ever qualify for a DPA and that would make our law laughable. I have included a lawyer’s opinion on national economic interest below, together with a few more examples of why the pundits are wrong and why JWR was wrong in not considering over-ruling the DPP!
Canada’s toolkit to address corporate wrongdoing: The government met with over 370 Canadians, industry associations, businesses, non-governmental organizations and others, and received 75 written submissions.
Some Submissions: Canadian Bar Association, Transparency Canada
Notice how section 715.32(2)(i) says “any other factor that the prosecutor considers relevant”? That gives the AG wide discretion to direct the DPP to consider the potential collateral damage to innocent people if a Corporation were to be convicted instead of negotiating a DPA. DPAs are guaranteed punishment. Prosecutions are not guaranteed.
Notice also 715.32(2)(d, e). These are important as SNC fired the crooks involved with some of them convicted and they are pursuing a lawsuit against these crooks.
SNC also signed an Integrity Regime Contract (implemented under the Harper Government) with the Liberal Government in Dec of 2015. This means that SNC has been in ethical compliance since late 2015!
SNC-Lavalin announced confidential deal with feds, four days after Trudeau’s first throne speech in 20
Opinion: The origin of the phrase ‘national economic interest’ had nothing to with protecting jobs
It looks like many of us got this wrong about “national economic interest” including the DPP and the AG. While I may have been originally wrong on this blog in the way I interpreted it, I called it that jobs (“JOBZ”, as defined by Andrew Coyne were not “expressly precluded from consideration”) and were critical to include in determining DPA eligibility!
Further, it reinforced my opinion that JWR abrogated her duty in not consulting widely before deciding not to over-rule the DPP on not granting a DPA for SNC!
DPA: Can National Economic Interests be considered?
As stated in Mr Goldenberg’s thread below: ” The Code prohibits *considering* the “national economic interest”. It doesn’t prohibit agreements that are *in* the “national economic interest”. The distinction is between subjective purpose and objective effect. Without it, no large company could ever negotiate an agreement.”
Twitter thread is available in HTML.
“I wonder if the central question in the #SNCLavalin#Shawcross affair is whether or not @Puglaas actually had a duty to consult – not in a perfunctory manner – but in a meaningful and robust manner on a matter of the new law before here??
Craig Forcese is a full Professor, Faculty of Law at the U of Ottawa. It is his testimony which is still to come at the Justice Committee.
Sir Hartley Shawcross’s statement: “I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.”
Craig Forcese: “In sum, without clarity on the specific statements made and their context, it is simply impossible to measure “heavy pressure”, “urged”, or “attempted to press”. These descriptors all encapsulate the judgment of either the Globe’s sources or the Globe reporters themselves. And I have no idea what criteria they have applied to arrive at that judgment.”
As I have stated in my earlier blog, “pressure” as defined by Jody Wilson-Raybould is entirely subjective, and most especially given that most of the 20 points of contacts over 4 months referred to by JWR, were between staff.
Consider that the Former deputy prime minister, Sheila Copps, recently said: “For heavens’ sake, on one issue when in government, I was lobbied 150 times”!
Understanding the OECD statements regarding the SNC Lavelin case as they have recently interfered is important
It’s important to note that Canada’s Fight against Foreign Bribery is with the OECD member countries so they would be obligated to report on the SNC case.
It’s also interesting that the same talking head pundits and partisans who believe JWR was under “pressure” are now claiming that the OECD anti-bribery committee is monitoring Canada. This is Orwellian, dishonest, and not logical as we are a sovereign country. It is Canada which reports to the OECD anti-bribery committee! They don’t watch us!
Ishat Reza is a former OECD Public Sector Integrity official, ex civil servant and Canadian lawyer.
Her first Twitter Thread is here, the 2nd is below
HTML thread for 1st Twitter thread
HTML thread for 2nd Twitter thread
One last piece of info (from OECD corruption report 1999-2017):
Canada: 4 convictions, 3 acquittals
Germany: 327 convictions, 3 acquittals (DPA regime)
US: 224 convictions, 4 acquittals (DPA regime)
UK: 21 convictions, 8 acquittals (DPA regime)
From: Trevor Purdy @TrevorsIdeas:
RESOURCES / REFERENCES
“The beleaguered engineering and construction giant said in court documents that Pierre Duhaime hurt the company when he helped a public servant commit a breach of trust tied to $22.5-million in bribes that helped rig the McGill University Health Centre (MUHC) project in favour of SNC-Lavalin.”
“Economic crime committed by corporations is a complex problem that can have a serious impact on the economy and on innocent third parties, such as employees. In the fall of 2017, a public consultation was launched to determine if Canada should expand the toolkit available to prosecutors to address corporate wrongdoing, including through a made-in-Canada version of a deferred prosecution agreement [DPA] regime. During the consultation, over 70 submissions were received and more than 370 Canadians, industry associations, businesses, non-governmental organizations and others participated. On February 22, 2018, the Government released the results of the consultation.”
What’s interesting about this article is that Harper softened the “Anti-Corruption Rules” yet MSM and politicians are accusing PMJT of being soft on corporate crime.
“Under the new procurement rules announced Friday, companies can still be barred from government contracts for 10 years if they have been convicted of such offences in the past three years.
But that ban can be cut in half if the company co-operates with authorities and takes remedial action.”
“The prior integrity framework was broadly criticized as being overly harsh, including for example a non-discretionary ten-year debarment from federal government contracts for parties convicted of a listed offence. As a result of these criticisms, the framework was revised in July 2015 to include, among other things, the establishment of an administrative agreement framework whereby a supplier that contravenes the Integrity Regime may in certain circumstances apply for an administrative agreement in order to continue to be eligible to bid for federal government contracts provided certain anti-corruption compliance obligations and other conditions are met. “