//Why Jody Wilson-Raybould likely never pushed prosecutors to settle the case against SNC-Lavalin

Why Jody Wilson-Raybould likely never pushed prosecutors to settle the case against SNC-Lavalin

Near the end of her testimony to the Commons justice committee earlier this week, former attorney general Jody Wilson-Raybould offered up a hint on why she never pushed prosecutors to settle their criminal case against SNC-Lavalin Group Inc.

The Montreal-based engineering and construction giant faces charges it paid tens of millions of dollars in bribes between 2001 and 2011 to Libyan government officials to win contracts there.

Wilson-Raybould steered clear of discussing any details of what bringing SNC to trial would accomplish versus negotiating a settlement, but she closed her testimony by pointing to her indigenous identity. According to people who know her, these lines were likely embedded with a deeper significance and provide an important window into her decision-making.

“I think that what she was really saying in a nutshell is … will this be fair to all Canadians?” said Robert Joseph, a chief of the Gwa’wa’enuk First Nation, who called Wilson-Raybould family.

As the first Indigenous attorney general in Canada, Wilson-Raybould likely felt pressure to create a justice system that upholds higher values, such as fairness, and one that is not subject to political whims, he said.

He added that her values are probably informed by her experiences in the Big House — a parallel parliamentary and justice system in her Indigenous community in British Columbia.

As it stands, the relative merits of prosecutors’ decision to bring SNC to trial have been overshadowed by questions about whether the Prime Minister’s Office improperly pressured Wilson-Raybould to interfere in the case.

But that decision is facing scrutiny in the wake of decisions by judges to dismiss charges against former SNC executives in other related cases. Now, lawyers and analysts are debating why prosecutors would take such pains to avoid settlement discussions with SNC in a complex case that could prove difficult to win.

“Can you imagine anything more embarrassing than this case not being settled, it going to trial, and the government losing?” said Joe Groia, a former Ontario Securities Commission attorney who now defends white collar criminals. “That would be almost an unspeakable result from the government’s perspective.”

During her testimony, Wilson-Raybould said prosecutors decided not to invite SNC into settlement negotiations, also known as a remediation or deferred prosecution agreement, and outlined their reasons in a memo, which she did not disclose.


A man walks past the headquarters of SNC-Lavalin in Montreal.

Paul Chiasson/The Canadian Press

She also said that cabinet members can discuss important policy considerations in certain cases with the attorney general, but not political considerations, such as whether prosecuting SNC would affect the prime minister’s re-election chances in Quebec.

In closing her statement, Wilson-Raybould cited her Indigenous background as an important factor.

“My understanding of the rule of law has also been shaped by my experiences as an Indigenous person and as an Indigenous leader,” she said during testimony on Wednesday. “The history of Crown-Indigenous relations in this country includes a history of the rule of law not being respected.”

Indigenous law experts said that in Canada, there is a long history of Indigenous communities and individuals facing harsher treatment in the court system.

John Borrows, a professor of Indigenous law at the University of Victoria, who knows Wilson-Raybould from his previous position when he was a professor at the University of British Columbia and she was a law student, agreed.

Borrows said there was a clear message in her statements: Just as it is wrong to mistreat Indigenous defendants, it is wrong to single out a defendant for special treatment because the justice system needs to be totally evenhanded.

“In this instance, she’s trying to walk the line,” he said, adding her point is, ‘And oh, wouldn’t it have been amazing if that kind of even-handedness had been applied in the past when Indigenous issues had come before the courts.’”

In this regard, providing a deferred prosecution agreement to SNC could have felt problematic to her, given her testimony that she believed cabinet members were pressing the SNC-Lavalin case for political rather than policy-driven reasons.

Jennifer Quaid, a law professor at the University of Ottawa who studies deferred prosecutions, pointed out that SNC isn’t actually a perfect candidate for a settlement given some of the details of its case.

Under the legislation passed that allows remediation settlements, prosecutors can consider whether a company is eligible based on a number of factors including if its crimes were self-reported and how far up the crimes reached.

And oh, wouldn’t it have been amazing if that kind of even-handedness had been applied in the past when Indigenous issues had come before the courts

Although SNC would have met some of the other factors, such as removing individuals associated with the crimes, and installing compliance monitors, it did not self-report its offenses, and its former chief executive was involved in a bribery scandal.

“If you look at the way it’s drafted, it’s certainly perfectly reasonable to conclude they should not be invited” to negotiate a remediation settlement, said Quaid.

Still, as recently as last month, SNC chief executive Neil Bruce stressed in a call to investors that the company had taken corrective measures, and deserved a settlement agreement, but nonetheless expressed confidence the company would prevail in the case at trial.

Although prosecutors could still decide to negotiate with the company, at the moment, they are moving ahead towards trial.

Just this month, a judge threw out fraud and bribery charges against Stephane Roy, a former controller at SNC who was fired in 2012, ruling prosecutors had delayed bringing the case to trial for too long. It marked the second dismissal in a month.

Quaid said she is surprised that prosecutors are soldiering on with their case against the corporation in light of the setbacks in related cases against individual former SNC executives.

“I am surprised at the confidence of the prosecutors,” she said. “They’re like ‘yep we’re going to trial,’ that tells me they must have a lot of evidence.”

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