Front Burner - Five lingering questions about the SNC-Lavalin scandal

Episode Date: March 11, 2019

We've heard from the key players in the SNC-Lavalin scandal. There's former Attorney-General Jody Wilson-Raybould, who said she was subjected to inappropriate pressure by the Prime Minister's office to intervene with the corruption case against engineering giant SNC-Lavalin. On the other side, Prime Minister Trudeau, his former principal secretary Gerry Butts and the Clerk of the Privy Council, all of whom say nothing outside the normal functioning of government happened. Today, we take a step back and navigate five lingering questions about the SNC-Lavalin scandal with CBC senior reporter David Cochrane.

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Uncover. The Village. Uncover the Village. Coming April 2nd. Hello, I'm Jamie Poisson. So it's been just over a month since the SNC-Lavalin scandal first came to light. At the heart of it is whether the prime minister and senior members of his team tried to pressure the former attorney general to intervene with the corruption case against engineering giant SNC-Lavalin, specifically to get the chance to negotiate a deferred prosecution agreement, or a DPA for short.

SNC-Lavalin has been seeking a deferred prosecution agreement, a sort of plea bargain. Companies can pay a fine and avoid more serious penalties to encourage them to clean up their act. As this entire mess has unraveled, we've heard from some key players now. Former AG Jody Wilson-Raybould, who said she was subjected to inappropriate pressure. I experienced a consistent and sustained effort by many people within the government. On the other side, the prime minister, his former principal secretary, Jerry Butts,

and the clerk of the Privy Council, all of whom say nothing outside the normal functioning of government happened here. Essentially, nothing to see here, folks. There was an erosion of trust between my office and specifically my former principal secretary and the former minister of justice and attorney general. And even though we have more answers, we also have way more questions.

Today, we're going to zero in on five. So let's get to it. This is From Berner. I'm with my CBC colleague, David Cochran. He's in Ottawa. Hi, David. Hi there. I'm so happy that we have you on the podcast today.

And I actually don't want to do anything fancy today. I just want to try, because I know you know this story better than most, to answer these five questions that can help people get more context around the story. I will do my very best. Because every time we answer one question in this story, five more pop up. It's a news hydra. Right. I should say there are five questions

and 42 follow-up questions. But let's try our best. Question one. SNC's criminal case is ongoing. Could this deferred prosecution agreement, which is essentially a plea deal that ends with the company paying fines and agreeing to other conditions as an alternative to criminal prosecution, could it still be on the table for the company? I think as a matter of law, the answer to that question is probably yes. As a matter of politics, the answer to that question is probably no. Now a matter of politics, the answer to that question is probably no.

Now, they do say that as a matter of law, this is an option right up until the criminal proceedings end. The terms of the DPA indicates that that decision can be taken by the attorney general up until the very last minute of a trial. And that is true. Speaking broadly about how deferred prosecution agreements go, there are still some things we don't know about SNC-Lavalin's case. Primarily, it's why does Kathleen Roussel, the director of public prosecutions, believe this company is not worthy of a deferred prosecution agreement? And do we know anything about what she may have considered when she made this decision? She has not explained to anybody, except Jody Wilson-Raybould,

why she has said no. As part of this process, she writes what's called a Section 13 memo, which is a confidential memo to the Attorney General outlining the reasons for, yay, we'll give them a DPA, or nay, we won't give them a DPA. The only parts of this note that I will disclose are as follows. Quote, the DPP is of the view that an invitation to negotiate will not be made in this case and that no announcement will be made by the PPSC, end quote.

And there's a lot of things that need to be considered. Number one, you can be eligible for this as a company. You have no right to this as a company. You have no right to this as a company. This is spelled out in the documents in the court case that SNC-Lavalin lost on Friday, where it saw judicial review of the prosecutor's refusal to give them a DPA. The engineering giant will not get a formal judicial review, meaning the corruption case against the company will go ahead. The first is that the prosecutors of the opinion, there's a reasonable prospect of conviction. The prosecutors of the opinion that the act that forms the basis of the crime

did not cause serious bodily harm or death or injury to national defense or national security. Okay, and we should stop here for a second because the crimes that are alleged against this company and people in the company are essentially 10 years of bribery in Libya. And fraud. And fraud, bribing the Gaddafi regime in exchange for lucrative contracts. The RCMP today have charged Montreal-based SNC-Lavalin with bribery totaling an unprecedented $47 million.

The second charge alleges fraud on the Libyan people and government to the tune of $129 million. And this is where the next part of their legal argument comes in. It says if the crime was not committed for the benefit of, at the direction of, or in association with a criminal organization or terrorist group. Now, if you're bribing people in Libya, are you doing it with criminal organizations? Are you doing it with terrorist groups? Where does the Gaddafi regime fall into that category? The third criteria is the one that the director of public prosecutions highlighted. And it says the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances.

Right. So this is what could be working in the SNC's favor. It could be working in his favor, but it could also be working against it because in the public interest, OK, maybe it protects jobs, but is it appropriate? They've underlined this actually in their court documents would be in the public interest and then and is underlined before it gets to appropriate. So I think that's a signal flare there from the director of public prosecutions that they just don't think this is an appropriate choice to make. The actual explicit reasons for why they are saying no, though, that's in a confidential memo given to Jody Wilson-Raybould that even the prime minister has not seen and cannot see because of the way the law is written. OK, so question one, essentially, if I were to boil it all down, it's going to be very difficult for current attorney General and Justice Minister David Lamedi to pursue a DPA here. I think politically, I think politically,

it absolutely would be because to this point, one of the defenses you've heard a committee and from people in government is, yes, they lobbied us. Yes, we asked her, but they didn't get what they wanted. Next, we have Mr. Boissoneau. Let's take a look at what you're wanting Canadians to see as the smoking gun. If SNC-Lavalin had ended up in a remediation, okay, you'd have something. But guess what? They're going to trial. If they now get what they want, how are you going to sell that in an election year? Okay. All right, question two. This argument that 9,000 jobs are on the line here and that these jobs would be lost if SNC wasn't offered a DPA.

When 9,000 people's jobs are at stake, it is a public policy problem. How factual is that argument? That's a real tough one because certainly the government seems seized by it. And certainly they continue to appear to believe it because they continue to say it even after we've heard experts from the construction industry, experts from the engineering sector, experts from the infrastructure world say this is a worst case scenario that is being presented. It is not a likely scenario that is being presented and our colleague Diana Swain did some reporting on this last week. Andrew Macklin is a construction analyst who says there are lots of reasons to

believe that just wouldn't happen. For instance, SNC-Lavalin is already involved in billions of dollars of projects in Canada that won't be finished for several years. It's also in the final phases of bidding for other large contracts, like refurbishing the Petullo Bridge in Vancouver. And Macklin says that kind of massive provincial project would still be available to SNC, even if it's shut out of federal contracts. How do you walk away from that just because the federal government says, well, we're shutting the door to you for 10 years? There would be a problem here for SNC-Lavalin if they got a 10-year ban on bidding on federal contracts, especially when you look at what the liberals intend to do with federal infrastructure spending over the next decade. But SNC is a global company. They

can still bid on private sector infrastructure contracts, provincial-level infrastructure contracts, and municipal infrastructure contracts. There is work for them to do. And there's also the belief that there is a shortage of people to fill the jobs in this country that are identical to the jobs that SNC-Lavalin employees have. The argument here is that there's a real demand for high-paying engineering jobs in this country, whether it's SNC-Lavalin employing people or another big engineering company. Yeah. Unfilled jobs in the economy would be filled by SNC-Lavalin workers. So the net hit to the economy is not, you know, enormous. Undeniably, a conviction would hurt it. Undeniably, a conviction and a ban from federal work would force it over time

to potentially reduce its Canadian workforce. The anxiety seems to be over the loss of a global flagship company headquartered in Montreal and what all of this could potentially mean for its future as a big company operating primarily in Canada. So let's move on to question three. And I want to talk with you about what both sides say transpired here. But first, what Wilson-Raybould and Jerry Butz, the Prime Minister's Principal Secretary, seem to be in agreement on

is that nothing illegal happened here. Is it illegal for someone just to pressure the attorney general to intervene on a case? In my opinion, it's not illegal. It is very inappropriate, depending on the context of the comments made. So let's start with this question. If nothing illegal happened, why is this type of alleged interference being considered such a big deal? Why do people care about this story? Yeah, this is a really interesting one for the conservatives because they say they believe absolutely every word of her testimony,

except for the part where she says nothing illegal happened, which is a... And we should note, yeah, conservative leader Andrew Scheer is calling for an RCMP investigation. Five former attorneys general have said the RCMP should consider criminal charges. Right. The version of events that's spelled out by everybody is really a political inkblot test in that everybody interprets it in their own subjective way, largely to advance their own political agenda. So the allegation here, while she says, and look, Jody Wilson-Raybould was a former prosecutor.

She is a lawyer. She was at the time the Attorney General of Canada. She thought what was happening to her was completely inappropriate and improper. But she believes it did not break the law. Why does she feel it's so inappropriate? It has to do with this principle called the Shawcross Doctrine, which is something that comes from the United Kingdom and speaks to the idea that the Attorney General, while they can receive input and advice from Cabinet colleagues, they cannot be pressured in any way. So it has to do with the independence of your prosecution service. You know, we want to believe that prosecutors and judges make decisions based on facts,

based on evidence and based on the law, not based on politics and not based on partisan considerations. The argument here is that the efforts by the prime minister's office to get her to reconsider or keep her mind open or to look at a second opinion was over the line. Jody Wilson-Raybould considers this to be an unacceptable mingling of politics and the law. I will say that it is appropriate for cabinet colleagues to draw to the Attorney General's attention what they see as important policy considerations that are relevant to decisions about how a prosecution will proceed. What is not appropriate is pressing the Attorney General on matters that she or he cannot take into account, such as partisan political considerations. The prime minister's office and the clerk and the prime minister's staff and more and more

cabinet ministers and members of the liberal caucus, they all seem to believe that, yes, there was pressure, but this is the pressure of the job, the pressure to get it right, and none of the contact was improper because each step along the way, she was constantly reminded of the fact that she gets to make this decision. We also made clear that if the Attorney General accepted our proposal and took external advice, she was equally free to reject or accept that advice. It was not about second-guessing the decision. It was about ensuring that the Attorney General was making her decision with the absolute best evidence possible.

So, David, I pick up on what you just said, which was essentially that it's inappropriate to influence the attorney general for political reasons. If you believe Jody Wilson's testimony, she does lay out a few clear examples where she says that people in the government brought up political considerations. When my chief of staff spoke to Mathieu Bouchard, Mathieu said that if six months from the election, SNC announces they're moving their headquarters out of Canada, that is bad. He said, quote, we can have the best policy in the world, but we need to get reelected, end quote. And Jody Wilson-Raybould testified that this was part of ongoing pressure to get her to order the prosecutor to enter into a DPI. Yeah, I don't think there's any doubt that at some point in these conversations, politics and elections were brought up.

And when the prime minister was asked about this at his news conference on Thursday of last week, he gave a non-denial denial on that question. We asked him specifically. You said off the top that transparency is an important part of leadership. So in that vein, can you confirm for us what your staff said to Jody Wilson-Raybould exactly and whether they raised the political concerns such as needing to get re-elected in their conversations with her because that's an important part of the story I think Canadians would like an answer on from your office. I'm sure there were a broad range of issues discussed in these conversations. We heard detailed testimony on that over the past couple of days

and certainly the ethics commissioner will be looking into these matters. He admitted publicly for the first time that yes he said I'm the MP for Papineau in the very first meeting with her on the 17th of September where she said that was the first time anyone crossed the line. I care about the families workers and students in my writing but this comment wasn't partisan in nature. But they're trying to move past this and say that this is really all about differences of opinions about the appropriateness of a number of interactions. But it seems pretty clear that it was brought up. In a plain reading of the Shawcross Doctrine, that would probably be inappropriate. The question is, is if you just do it once, is it a problem?

Or does it need to be repeatedly brought up? I mean, this is where it's a little bit unclear to me, even watching all of this, because, you know, we have to do this sort of intellectual separation of your role as the Attorney General versus your role as the Minister of Justice versus your role as a member of Parliament versus your role as a liberal. But you're all one person. So let's go to question four. And I'm hoping what we can figure out here is what's happening with all of these investigations and committees. So we've been hearing Jody Wilson-Raybould and Gerald Butts and others testify in front of a justice committee. But the ethics commissioner is also

investigating this. So what is the ethics commissioner investigating and what could come out of that? So on February 11th, Mario Dion announced that he was investigating the government under the Conflict of Interest Act. And in particular, it's a section that prohibits public office holders from seeking to influence a decision of another person so as to improperly further another person's private interests. It's a conflict of interest investigation. But if you look at this now, it isn't really about a conflict of interest. It's about inappropriate conduct. It's about pressure on the attorney general. It's about the independence of prosecutions. And so the argument from the opposition is that Mario Dion simply cannot examine this in a way that is appropriate to the issues at hand.

He can determine whether the Conflict of Interest Act was violated or not and issue a yes or no and explain his reasonings on that. But that is simply not going far enough for the opposition. Can the Justice Committee do this? Well, here's the big difference between the Justice Committee and the Ethics Commissioner. The Justice Committee hearings are happening in public. We are getting questions and answers and testimony, and we are hearing it aired out on live national television. The Ethics Commissioner is a private process done behind closed doors with private investigations. What the opposition wants, the conservatives want to go as far as a police investigation,

but there's also calls for a public inquiry, which has been the bottom line for the NDP at this point. He may need to resign because of this, but that's why our call for a public inquiry will get to the bottom, get to the heart of this, provide the information that we need to make that determination. Right, because essentially the Justice Committee, you know, the liberals have a majority on the Justice Committee and they can kind of control what happens, right? So is that the argument for a public inquiry? Yeah, I mean, it's the committee that has had the reputation for being the least partisan, and I would suggest that that has probably changed. Just in the last couple of weeks, maybe. Yeah, they have dealt with some real meaty issues and they've dealt with it in a very

nonpartisan, positive way and issued unanimous reports. I don't think we're going to see that coming out of this examination of the Shaw-Cross Doctrine and other related matters. It's gone too far. But a public inquiry will be led by a judge. It will be done in public and it would have subpoena power. It would actually probably address all of these issues. It certainly would in terms of having the power, scope, and resources to do it. And there's a fourth option to judge this and the conduct of everyone involved, and that's the election. And that would be the ultimate judge of public opinion coming in October. And that is, so much can happen up until then. Final question here today, and I want to actually unpack a little bit more of something you

mentioned earlier, this concept that the Attorney General and the Justice Minister should actually be filled by separate people. What is it about this, you know, ongoing scandal that has like, you know, brought to the surface what people have been talking about for a long time? I mean, it's very clear in black and white on paper, but these are human beings in a human system. And that just makes it difficult. And it's very clear in black and white on paper, but these are human beings in a human system. And that just makes it difficult. And it's why you have this situation in Britain where the attorney general is separate from your minister of justice and your attorney general is not in your cabinet. You can be consulted by cabinet members.

You can speak to people about what's going on. But you're not in that inner circle where, yes, policy is discussed, but the political considerations of all of that policy is also discussed. I believe, and I have believed this for some time, even before I became the Attorney General, our country would benefit from a detailed study and consideration around having the Attorney General not sit around the cabinet table like they have in the United Kingdom. And when you have a situation like this, when you have an issue of such importance from a justice perspective to see corporate wrongdoing punished appropriately, but then you have the public policy considerations of the impact on the employees and innocent third parties such as pensioners and suppliers, and then the political considerations

of damaging a flagship Quebec company in a province of such importance to the political base of the governing party, you can just see where that is rife for conflict. And this is something the prime minister said on Thursday they're going to study. Ultimately, I believe our government will be stronger for having wrestled with these issues. You're going to look at a bunch of things, how his office interacts with cabinet, how the ministries work with each other, but they're also going to study this fundamental issue of should the Attorney General be split from the Ministry of Justice?

And I don't see how, coming out of this, any of the parties can advocate for the status quo. The two hats that the Minister of Justice and the Attorney General wears here are completely different. If you need to put a firewall now around the administration of justice from a criminal prosecution perspective in a very clear structural way, set it up in a way that there's simply no way that misinterpretation can come into force. I think that's where this has to land. Otherwise, what was this all about? David, I think that's probably a good place for us to leave it.

Thank you so much for taking us through this really complex story. I think there are still a lot of questions that we don't know, but thank you so much for even addressing what we don't know. I hope you can come back as this continues to develop. No doubt, it feels like it will. Anytime. Thanks, Jamie. Great. Thank you. Okay. So if you're still confused, I'm sorry. This story is so muddy and complex and complicated, but we also just don't want to oversimplify it. So I hope that you'll stick with us as we continue to cover this.

And if you go to our feed, we have two separate episodes you can listen to that break down everything important from the testimonies of the Justice Committee over the last two weeks. So you heard David mention in our conversation that the liberals have taken a big hit in the polls over this. And that is true. The party has taken a hit in the polls. But I just want to point out a really interesting distinction here. The party's losses are far less significant than those of the prime minister himself and his personal brand, which frankly could be a whole podcast in and of itself. But that's it for today. I'm Jamie Poisson. Thanks for listening to FrontBurner. For more CBC Podcasts, go to cbc.ca slash podcasts. It's 2011 and the Arab Spring is raging.

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