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Andrew Coyne: We are still waiting for a clear denial over SNC-Lavalin allegations

Andrew Coyne: We are still waiting for a clear denial over SNC-Lavalin allegations
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It has been four days now since it was reported that officials in the Prime Minister’s Office had pressured the former attorney-general, Jody Wilson-Raybould, to have fraud and corruption charges dropped against SNC-Lavalin, the Quebec engineering and construction giant, and we have yet to hear a direct, on-the-record denial of the allegations by either side.

We’ve had Justin Trudeau’s initial, lawyerly statement to the effect that he did not “direct” Wilson-Raybould to do anything — which was not the allegation — and we’ve had Wilson-Raybould’s repeated claim that “solicitor-client privilege” prevented her from commenting — which legal scholars dispute — and now we have the prime minister’s assertion that Wilson-Raybould lately “confirmed” for him a conversation they had last fall “where I told her directly that any decisions on matters involving the director of public prosecutions were hers alone.”

That odd, selective, one-sided recounting of what she allegedly said about what he allegedly said that shouldn’t have needed saying in the first place is the closest we’ve got in four days to a straight answer. But while all this line-testing, story-straightening and general dodging about was going on in public, the prime minister’s people were speaking quite freely — off the record.

Why yes, of course there had been “discussions” with Wilson-Raybould about whether to set aside the charges against SNC-Lavalin, senior government officials confided to reporters, in favour of a newly created process called a “remediation agreement.”

Indeed, they told Canadian Press the government “would have failed in its duty” if it had not had such discussions “given that a prosecution could bankrupt the company and put thousands of Canadians out of work.”

There might have been a “vigorous debate” or even a “robust discussion,” senior government officials acknowledged to the Globe and Mail, but that should not be confused with “an effort to put pressure on Ms. Wilson-Raybould.” How did she get that idea, then, as multiple sources told the paper four days earlier? Was she confused?

Beautiful. The PM’s spin doctors have managed to turn a story about their own alleged attempts to interfere in the prosecution of a Liberal-friendly firm (from 1993 to 2003 SNC-Lavalin contributed over a half a million dollars to the party, Elections Canada records show, plus another hundred thousand and change in illegal donations, as the company has acknowledged, in 2004-2011) into a story about whether a “difficult” minister was harming the government with her silence.

Very well. Let’s take the government’s emerging defence on its merits. Is this all perfectly normal? Is it quite all right, first, for a government to want to spare a corporation from criminal charges because it might go out of business? Let’s be clear: this would not be an issue if the corporation employed nine people, rather than nine thousand. The argument — the official story, that is, never mind questions of political connections or how it would all play in Quebec — is that SNC-Lavalin deserves preferential treatment because it is so big: because of the “thousands of jobs” that would allegedly be lost if it were to be submitted to the ordinary processes of law. As an argument for two-tiered justice, this at least has the virtue of being frank.

The company claims it should be spared prosecution because it has changed personnel and overhauled its corporate culture since the days when it was notorious for bribing public officials to win contracts, around the world and in Canada. But it’s surely worth noting that it was under the bad old corporate culture that the company grew into the colossus it is today. The practices for which it now asks to avoid charges, on the grounds that it is too big to fail, are the very sorts of practices that helped make it so big. Is there a more literal application of the old joke about the kid who kills his parents, then asks for leniency on the grounds that he’s an orphan?

Charged with fraud and corruption, SNC-Lavalin reacted, not by fighting it in court, but by lobbying politicians and their staff

I don’t want to be too firm on this point. Maybe there’s a case for remediation agreements of this kind, in principle — after all, the United States and Britain have them. But there’s a context here that can’t be ignored. The only reason the provision is on the books in Canada is because of a concerted public relations campaign on the part of SNC-Lavalin. Charged with fraud and corruption in 2015, the company reacted, not in the usual way, by fighting it in court or bargaining with prosecutors, but by lobbying politicians and their staff.

And it worked: the government custom-drafted the legislation to the designs of a company that was at that moment facing criminal charges, then smuggled it into law via the 2018 omnibus budget bill, of all things. And, when the director of public prosecutions, as is her right, declined to make use of the new provision, preferring to proceed in the old-fashioned way, the prime minister’s office allegedly leaned on the attorney general to overrule her.

To be sure, there is nothing illegal or unethical for the attorney general, as a government background document notes, “to consult with cabinet colleagues before exercising his or her powers.” But that is not what is alleged. Whether or not the line was crossed into “pressure,” the alleged conversation was not with her fellow ministers — her equals — but with political staff in the Prime Minister’s Office, the most powerful people in the country. Next to the prime minister, of course.

That at any rate is the allegation. It has still not been properly denied. It would seem worth investigating why.

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