Thursday, 28 February 2019

Comparing "Remediation Agreements" and the Canadian Extradition Act, or Did the Liberal Obsession with SNC-Lavalin Prevent Jody Wilson-Raybould from Dealing with the Meng Extradition?

Asking you to compare the amendments to the Criminal Code entitled "Remediation Agreements" with the Canadian Extradition Act is probably way too nerdy a request.  Nonetheless, if you are as nerdily inclined as I am, and you have given up on getting any factual information through the Canadian media, as I have, you now have links to both documents online.

The first thing you will notice if you browse these documents (okay, I'm guessing you won't) is that the "Remediation Agreements" legislation, even though it is an amendment to the Criminal Code was passed as part a Budget Implementation Act (Bill C-17) under the purview of the Department of Finance.  In her explosive testimony to the Justice Committee yesterday, Jody Wilson-Raybould was goaded a number of times into saying she didn't like Remediation Agreements.  She wisely and judiciously declined to comment, but we can imagine she accepted but was not thrilled by this legislation which was clearly designed by the Liberal Government to get SNC-Lavalin off the hook.  Listening to her testifying yesterday, it became apparent to me that rewriting the criminal code to accommodate one particularly powerful company was not how Jody Wilson-Raybould thought the law should operate.

It is an understatement that we will hear ad infinitum in the days ahead that there was a failure of communication between the Prime Minister's Office and the Ministry of Justice, but the ultimate take-away is that Justin Trudeau was out of his depth dealing with the SNC-Lavalin case and out of his depth dealing with Jody Wilson-Raybould.   The fact that so many of his underlings and a civil servant like Michael Wernick took it upon themselves to pressure the Ministry of Justice tells me they felt Trudeau couldn't do what needed to be done and he, in turn, naively thought if the pressure was applied by his minions, he could maintain what President John Kennedy once infamously called "plausible deniability."

The absurdity of the situation is that it appears that no-one in the PMO actually read the Remediations Agreement act which they had passed.   If you compare the Extradition Act and Remediations Agreement legislation, you will notice that the Minister of Justice and Attorney General (they are one person) is mentioned repeatedly (more than 100 times) in the Extradition Act.  The Minister is called upon to act and guided as how to act in extradition cases.  In contrast, the Remediations Agreement regime mentions the Attorney General exactly twice:

The "remediation agreement" requires the AG's consent.  The process can only proceed if "the Attorney General has consented to the negotiation of the agreement."  Once the agreement is in place, profits from the company's crimes are "to be disposed of as the Attorney General directs."

The law is framed in such a way as to assume that everyone will go along with a remediation agreement.  No consideration was given to the idea that a prosecutor might refuse to use the Remediation Agreement legislation.  There is no provision in the legislation for the AG to recommend, advise, council or in any way interfere with the prosecutor's decision if the prosecutor chose a criminal trail over remediation.  The PMO, the Finance Minister and the Clerk of the Privy Council weren't just asking Jody Wilson-Raybould to use the influence of her office, they were asking her to break the laws which they themselves had written.

While the "powers that be" seemed to have forgotten that they gave Jody Wilson-Raybould no power over remediation agreements (other than to approve them), they did continue to hound her to do what she had no power to do: impose a remediation agreement.  No doubt as a crumb of respect, since the legislation apparently came from Finance and not Justice, the legislation twice mentions the Minister of Justice, giving her the power to make "recommendations" on future changes to the legislation.

At yesterdays's hearing, the NDP Member of the Justice Committee, Nathan Cullen, spoke of "the incredible hypocrisy" of the Trudeau Liberals talking of "judicial independence from political influence in the Huawei CFO extradition case" at the same time they were actively interfering in the SNC-Lavalin criminal case.  Cullen's point is well taken, but it is also important to understand the difference in the two legislations.  Unlike the Remediation Agreement legislation, the Extradition Act  specifically gives the Minister of Justice the power to act and gives multiple grounds on which she must act (see A Dozen Reasons to Release Meng).

Listening to Jody Wilson-Raybould's testimony yesterday, and realizing for the first time that she is an astute lawyer with an impressive command of the facts and the law, I was more surprised than ever that she had not dealt with the Meng extradition case.  Could the chaos of the SNC-Lavalin case have undermined what needed to be done when Richard Donoghue, the US Attorney, requested Meng's arrest?  Was Jody Wilson-Raybould left out of the loop when Justin Trudeau was informed three days in advance of the Meng arrest because Trudeau was already gun shy from having pressured Wilson-Raybould over SNC-Lavalin?  Was Wilson-Raybould hamstrung from dealing with the Meng extradition because she was on her way out as Minister of Justice?  Six weeks after the Meng arrest and two weeks before the Americans presented the indictment against Huawei Wilson-Raybould was demoted out of Justice.

Last night's and today's press conferences make it clear that Prime Minister Justin Trudeau's new mantra is "jobs, jobs, jobs" to excuse political interference in the SNC-Lavalin case.  However, our trade relations with China and the future of Huawei in Canada will also affect "jobs, jobs, jobs," not to mention technological advancement in Canada and the fact that two Canadians remain in a Chinese prison and a third is facing the death penalty.  The law, the Canadian Extradition Act, allowed him to solve the problem in concert with the Minister of Justice, but it appears that his mind was elsewhere.

Despite all the brouhaha, all the smoke, we should ask the question at the centre of the Liberal Government-SNC-Lavalin scandal.  Why didn't the prosecutor use the Remediation Agreement legislation with SNC-Lavalin?  In light of everything that has been said and is being said about the case, this paragraph from the Remediation Agreement legislation took my breath away.

Factors not to consider
(3) Despite paragraph (2)‍(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, 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. 

The Corruption of Foreign Public Officials Act is Canadian legislation which says that it is a crime in Canada if a company paid bribes to public officials in another country.  This is exactly what SNC-Lavalin is accused of doing:  paying bribes in Libya from 2001 to 2012.    The law specifically instructs the prosecutor that she must not consider "national economic interest" in deciding whether or not to offer SNC-Lavalin a Remediation Agreement.  Obviously this is what the prosecutor has done.  She has followed the law and not taken into consideration the effects on the national economy--job losses, decline in stock prices and the risk of SNC-Lavalin moving their head office--in making her decision.  Ironically, or maybe it is just plain absurdity, the PMO and Department of Finance were pressuring the Minister of Justice to, in turn, pressure the prosecutor, to make a deal with SNC-Lavalin, using exactly the argument--"national economic interest"--which they specified in the legislation they themselves drafted should not be considered.

Absurdity will be piled upon absurdity in the days ahead, as the Liberals will have to argue that a remediation deal with SNC-Lavalin was in "the national economic interest"--exactly what they said should not be considered when they drafted the legislation in the first place.  Will any paid, professional journalist in Canada have a look at the Remediation Agreement legislation and point out this contradiction?   Hmmmm  . . . . probably not.

Addendum

A good friend just (3 March 2019) brought to my attention an article in the Globe and Mail (21 February 2019) by Robert Fife and Steven Chase ("Wilson-Raybould told cabinet SNC-Lavalin pressure was inappropriate") in which they note that "Under Canada’s new deferred-prosecution agreement law, prosecutors are not allowed to consider national economic interests when deciding whether to settle with a company."  I must humbly acknowledge that this is exactly the legal fact that I was trying to goad the mainstream media into promulgating.

The article also mentions that "Mr. Trudeau has acknowledged he raised concerns about the economic impact that a conviction could have on SNC-Lavalin when he met privately with the then-justice minister and attorney-general on Sept. 17 [ . . . .]" and additionally, "time and time again in Question Period he said anything he did was in the service of sustaining jobs in Canada."  Much as I congratulate Fife and Chase for mentioning the law in this article; rhetorically speaking, they did very little to highlight and draw attention to the fact that what the Liberal Prime Minister has admitted doing and done publicly in the House of Commons was in direct contradiction to the legislation on Remediation Agreements which the Liberal Government framed, drafted and passed into law.

Addendum 2

More comeuppance for me in my strident claims that the mainstream media was not informing Canadians of the law regarding Remediation Agreements.  I just (4 March 2019) read a really excellent answer to an SNC-Lavalin question on Quora which included a link to this article in the Financial Post (28 February 2019) by Jennifer Quaid and Emilie Taman entitled "Ottawa officials keep pushing myths about 'remediation agreements' amid the SNC-Lavalin scandal."  The authors note that:  

In the specific context of prosecutions under the Corruption of Foreign Public Officials Act (under which SNC is charged), the national economic interest is explicitly excluded as a relevant factor.
Remediation agreements may often turn out to be in the national economic interest, but the decision as to whether to negotiate them cannot be driven by that consideration.

Quaid and Taman go on to explain why the legislation is such a mess and may indirectly explain why the Prime Minister doesn't seem to know the details of the legislation his government passed.

Addendum 3

Correction:  In this post I claimed that Jody Wilson-Raybould had "no power" to impose a Remediation Agreement.  My claim was an exaggeration.  The new Remediation Agreement legislation did not specify that she could interfere in the case.  However, the Act governing the Relationship between the Attorney General and the Director of Public Prosecutions did give Jody Wilson-Raybould the power to interfere in a Public Prosecution but this power has never been used and if ever it is used a written justification must be published and made public.  For more, see: A Comparison of Scandals: SNC-Lavalin Versus the Extradition of the Huawei CFO


2 comments:

  1. I would love to see some of your brilliantly researched articles in print. Do you get any offers to submit your work to publications or newspapers.

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  2. Thank you for the kind thoughts. No, I don't get any offers to submit my posts for publication, but I do appreciate having you as a reader.

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