This past year, Canadian Prime Minister Justin Trudeau has been embroiled in allegations that he improperly intervened in one of Canada’s biggest-ever foreign bribery prosecutions. That prosecution, of the Canadian construction firm SNC-Lavalin, began back in 2015, when the Royal Canadian Mounted Police (RCMP) and the Public Prosecution Service of Canada (PPSC) announced they would be bringing charges against the firm for paying approximately CA$48 million in bribes to Libyan government officials to win contracts, and for related misconduct including the defrauding of Libyan companies. This past February, the Globe and Mail reported that Prime Minister Trudeau and his closest advisors had inappropriately attempted to influence the SNC-Lavalin prosecution, and a subsequent inquiry by the Ethics Commissioner found that Trudeau had indeed acted unethically in attempting to influence key prosecutorial decisions that are supposed to be made by the Attorney General. The scandal had political consequences: although Prime Minister Trudeau and his Liberal Party managed to hang on to a minority government in October’s elections, the Liberal Party lost 27 seats and the popular vote.
The specific prosecutorial decision that Prime Minister Trudeau attempted to influence concerned whether the government should negotiate a deferred prosecution agreement (DPA) with SNC-Lavalin. A DPA is a settlement in which the defendant agrees to penalties or other remedial measures, and in return the government agrees to suspend the prosecution, and eventually drop the charges if after an agreed period of time the defendant has complied with the terms of the agreement. A DPA is similar to a plea bargain, but it does not require the defendant to plead guilty, and so avoids imposing on the defendant the stigma and collateral consequences of a criminal conviction. The prosecutor who brought the charges denied SNC-Lavalin’s request for a DPA in late 2018, and the acting Attorney General, Jody Wilson-Raybould, declined to overrule that decision. The Attorney General’s decision is supposed to be final on such matters. Nonetheless, Ms. Wilson-Raybould claims she fielded ten phone calls from the Prime Minister’s office, and was invited in for ten in-person meetings with the Prime Minister and his advisors, regarding this decision—and that the Prime Minister was pushing her to pursue a DPA with SNC-Lavalin. Ms. Wilson-Raybould refused to reconsider her stance on the matter, and shortly afterwards she was removed from her position as Attorney General and named instead Head of Veteran Affairs. In the end, the interference was exposed, the pressure failed, and, unless there’s some other unexpected turn of events, SNC-Lavalin will be going to trial.
This affair raises two questions: First, was Prime Minister Trudeau correct that the prosecutors should negotiate a DPA in this case? Second, if the answer to the first question is yes, was it appropriate for the Prime Minister to press his Attorney General to pursue that approach? My answer is yes to the first question, but no to the second. On the one hand, Prime Minister Trudeau was correct, and Acting Attorney General Wilson-Raybould was incorrect, about the appropriateness of a DPA in this case. However, the principle of prosecutorial independence from political influence—especially in corruption cases—is far more important, and the Prime Minister should never have compromised this core value even if he was right on the merits of this individual decision.
With respect to the question whether a DPA would be appropriate in the SNC-Lavalin case, this issue of course relates to the broader debate about the pros and cons of DPAs, a topic that has been debated at length in the anticorruption community, including on this blog. DPA critics often invoke the idea of “zero tolerance” for corruption, and suggest that DPAs allow corporations to avoid serious consequences for their malfeasance. The reality, however, is more complex. The possibility of a DPA can encourage companies that would otherwise try to cover up improprieties and deal with them in-house to self-disclose potential violations to the authorities, and to cooperate with any subsequent investigation. Furthermore, imposing a formal criminal conviction on the company may impose enormous costs on innocent third parties and unnecessarily destroy economic value. In many countries, including Canada, a corruption conviction results in the debarment of the company for eligibility to bid on public contracts for a period of time (ten years, in Canada). For companies that rely on public contracts, such debarment would likely force the company into bankruptcy. A DPA enables the government to compel the company to pay fines, make restitution, and make structural organizational changes, without imposing the often excessive collateral consequences of a criminal conviction. (Also, like other forms of settlement, a DPA allows the government to avoid the expense and risk associated with a trial.)
The SNC-Lavalin case is a textbook example of a case where a DPA is warranted. For one thing, the company self-disclosed, cooperated with authorities, and has taken serious remedial action internally. For another, forcing SNC-Lavalin into bankruptcy would deprive the government of an important supplier, might cause up to 10,000 workers to lose their jobs, and would deprive the Canadian government of a significant taxpayer.
So Prime Minister Trudeau was certainly not wrong, on the merits, when he concluded that the acting Attorney General had made a mistake in declining to negotiate a DPA with SNC-Lavalin. And it’s even possible that Prime Minister Trudeau had a better sense of what would be in the public interest than did the prosecutors. After all, a lengthy trial that results in a big name conviction may be an unduly attractive incentive to prosecutors looking to make a name for themselves or to communicate their strong anticorruption stance. But despite all this, Prime Minister Trudeau’s attempt to pressure his Attorney General is inexcusable. Prosecutorial independence is a fundamental principle of Canadian Constitutional Law, and the Public Prosecution Service was created as a separate agency in 2006 precisely to prevent the Prime Minister from interfering in prosecutorial decision-making. It is true that decisions by Crown Prosecutors can be overruled by the Attorney General, who is a member of the Prime Minister’s cabinet, but even in these cases the Attorney General must exercise independent judgment without political interference. In addition, Section 9 of Canada’s Ethics Act prohibits public officers from using their position to influence another person for the benefit of a private party, and in this case, since the Prime Minister was acting out of concern over the potential economic impact that a conviction of SNC-Lavalin might have, he was arguably acting in violation of this section as well. (Here things are admittedly a bit complicated, since it may be difficult to sharply distinguish acting for the economic benefit of an individual private firm from acting for the benefit of the Canadian economy overall.)
Furthermore, Prime Minister Trudeau’s attempts to interfere in prosecutorial decision-making in the SNC-Lavalin case was not only contrary to Canadian domestic law, but also contrary to Canada’s international commitments under the OECD Anti-Bribery Convention. Article 5 of that Convention prohibits countries from being influenced by “considerations of national economic interest” when making decisions in foreign bribery cases. Yet Prime Minister Trudeau was open about the fact that his desire for a DPA in the SNC-Lavalin case was driven by his desire to save Canadian jobs. This is precisely the sort of political consideration that, under Article 5, is not supposed to influence prosecutorial judgment.
So even though Prime Minister Trudeau was probably right, and his Attorney General probably wrong, about the appropriateness of a DPA in this particular case, Prime Minister Trudeau’s actions jeopardized a much more important bedrock principle for anticorruption enforcement. Upholding the separation of prosecutorial power in corruption cases, and preventing the erosion of trust in the government, will likely prove to be far more important than preventing one overzealous criminal prosecution.