Wrist Slappers

This is going to come as a big surprise to many of you, but I am not a lawyer.  I do try to stay abreast of changes to the law because as section 19 of the Canadian Criminal Code states, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

More on laws in a moment.  First I need to get you up to speed on the SNC-Lavalin affair, which now has a cute Brangelina nickname, “LavScam”.

In Canada, it’s the big scandal happening right now, unless it is just a smokescreen to hide an even bigger scandal that we don’t know about.  It seems that our Prime Minister, Justin Trudeau, would love if it would go away.  His latest trick was to threaten to sue the opposition leader, Andrew Scheer for libel.  I guess Scheer was talking a little bit too much about “Trudeau should step down” and “the RCMP should investigate his involvement”.

Scheer is welcoming the lawsuit, as it will allow information to come out in a court setting where Trudeau will not be able to control the proceedings.

What is Trudeau suspected of doing?

It is alleged that he and his office put pressure on the attorney general at the time to step in and resolve a corruption case against SNC-Lavalin Group Inc.

Wait.  What is SNC-Lavalin?

They are a Montreal-based engineering firm.  In 2015 they were charged with corruption and fraud relating to their business dealings with Libya.

They were hoping to be given a little tap on the wrist to avoid a criminal conviction.  That’s why they lobbied to federal officials to have their case resolved with a DPA (Deferred Prosecution Agreement).

Deferred Prosecution Agreement.  Where have I heard about that before?

You may have heard the term Deferred Prosecution Agreement being thrown around in the Jussie Smollet circus.  When Jussie waltzed out of court, with all sixteen charges against him disappearing into thin air, it was initially believed he been handed a Deferred Prosecution Agreement.

A Deferred Prosecution Agreement is basically an agreement that allows the accused to pay a debt for their crime without being convicted.  In Jussie’s case, it was thought that he might have been given a DPA because he surrendered a $10,000 bond and agreed to do sixteen hours of community service work.  He still says he’s innocent.  The prosecution still says he’s guilty.

So how does this relate to SNC-Lavalin?

In Canada, there was no such thing as a Deferred Prosecution Agreement, until the Trudeau Government added one to the criminal code, albeit by a different name, a Remediation Agreement.  Did I mention that SNC-Lavalin also lobbied the government to have this new section added to the Criminal Code?

Section 715.3 of the Criminal Code defines a remediation agreement as, “an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement”.

Great.  So what’s the problem?  SNC-Lavalin didn’t lobby the government to change the Criminal Code for nothing.  They want to use that new law so they can admit they made a boo-boo with Libya, take their slap on the wrist, and go on with business-as-usual.  What’s the holdup?

The Remediation Agreement subsection 715.32 (3) of the Criminal Code states, “…the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved”.

This means that although there are several factors to consider when assessing if the SNC-Lavalin mess should be resolved with a Remediation Agreement, the fact that the company employs 9,000 people and is a huge contributor to the economy (especially in Quebec) is not a factor to be considered.

Why would Trudeau care what happens to SNC-Lavalin?

Criminal prosecution of SNC-Lavalin would cost jobs and votes and his home province.

What’s next?

Despite the fact that the Attorney General at the time, Jody Wilson-Raybould says she was pressured by the Prime Minister and eleven others from his office to resolve the SNC-Lavalin case with a Remediation Agreement, she doesn’t believe what transpired was illegal.

I think that’s going to come down to the interpretation of the conversations that have taken place.  One such conversation was recorded by Wilson-Raybould.  The transcript of that conversation between Wilson-Raybould and former Clerk of the Privy Council, Michael Wernick, can be found here.

It sure seems like he was pressuring the Attorney General on behalf of the Prime Minister to test drive the newly created law.  It sure seems like Wilson-Raybould deemed the conversation inappropriate.  It sure seems like the pressure was coming from Trudeau in an attempt to save Quebec jobs and votes.

It sure seems that way, but what I realized when researching the Jussie Smollet case is that when it comes to prosecutors and wrist slapping, nothing is what it seems.

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