In new court filings, federal prosecutors say SNC-Lavalin misunderstands the AG’s role in criminal cases

OTTAWA — The federal prosecution service says SNC-Lavalin misunderstands the role of the attorney general in criminal cases, and should not be allowed to file new arguments as the company fights in the Federal Court of Appeal to avoid a criminal trial on corruption and fraud charges.

SNC-Lavalin is challenging the decision of the Director of Public Prosecutions (DPP) to deny it the chance for a remediation agreement, also known as a deferred prosecution agreement — essentially an out-of-court settlement that would allow SNC-Lavalin to avoid a trial over allegations it paid out bribes to win contracts in Libya between 2001 and 2011.

In March, SNC-Lavalin lost its attempt in Federal Court to overturn the DPP’s decision, as Justice Catherine Kane ruled it was a matter of prosecutorial discretion and thus not reviewable by the court.

But the company filed an appeal in April, and it’s seeking to introduce amendments to its initial Federal Court application so it can allege an abuse of process. Justice Kane ruled that abuse of process was the only grounds on which the DPP’s decision could be reviewed, but SNC-Lavalin had not made that allegation.

In recently filed documents, the DPP is asking the judge to strike out the amendments, arguing SNC-Lavalin should have raised them in the first place. “The amendments also contain new allegations, which purport to be facts but are largely based on speculation and assumption,” it says.

In particular, the DPP contests an allegation that then-attorney general Jody Wilson-Raybould was unaware of new information from SNC-Lavalin when she declined to intervene in the DPP’s decision to reject a remediation agreement.

“This argument is based on a misapprehension of the role of the attorney general in the conduct of criminal prosecutions,” the DPP says.

This argument is based on a misapprehension of the role of the attorney general in the conduct of criminal prosecutions

The DPP points to legislation that allows the attorney general to issue a direction to the DPP or to take over a prosecution, as long as the move is publicly posted.

“The decisions that the DPP makes are independent of the Attorney General and, subject to the examples noted above, the Attorney General does not have a role in specific prosecutions,” the court filing says. “Consequently, the Proposed Amendments on Appeal have not affected the outcome of the (Federal Court ruling). The decision at issue in this case was that of the DPP and the Proposed Amendments on appeal relate to information the Attorney General had.”

Over the past few months, this issue blew up into the largest political scandal of Prime Minister Justin Trudeau’s tenure after the Globe and Mail reported Wilson-Raybould felt inappropriately pressured by Trudeau and his staff to intervene in the case. The scandal resulted in extraordinary testimony from senior government officials at the House of Commons justice committee, and SNC-Lavalin points to that testimony as one of the reasons it is filing this appeal, arguing crucial new information emerged.

But the DPP points out that much of the testimony took place in February, before the Federal Court ruling came down on March 8. And furthermore, it alleges SNC-Lavalin is using the testimony as an excuse to introduce evidence it in fact knew about all along.

“Although SNC alleges that the amendments arose as a result of information that came to light after the decision of Justice Kane, the evidence establishes that many of the ‘new facts’ consist of information that SNC knew about before the decision but made a tactical decision not to rely upon,” the DPP’s filing says. “The ‘new facts’ are, in any event, irrelevant as they would not have changed the outcome of the (Federal Court ruling).”

Most notably, SNC-Lavalin’s amended application now says it received three reasons from the DPP’s office on Sept. 5 for why a remediation agreement would not be offered: the nature and gravity of the facts alleged, the degree of involvement of senior officers of the organization, and the fact the company did not self-report the conduct which gave rise to the charges.

SNC-Lavalin says once it was informed of those reasons, it provided further written submissions to rebut them. It alleges Wilson-Raybould was not informed by the DPP about those further submissions, which constitutes an abuse of process.

The DPP says that argument is based on speculation and is irrelevant anyway, given it was the DPP’s decision to make.

It also argues SNC-Lavalin had earlier chosen not to disclose that it had received those three reasons because it was trying to persuade the Federal Court that it was unfairly kept in the dark about the DPP’s reasoning.

“SNC made a tactical decision to not include in its original Notice of Application the fact that the DPP had provided three reasons,” the court filing says. “Having made these tactical decisions SNC must live with the consequences of the same.”

 Email: bplatt@postmedia.com | Twitter: btaplatt

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