Doomed from the Outset
SNC’s president has described his company as being “sick of being used as a puck in a political hockey game”.
This comment could legitimately strike one as surprising, coming from a company that has engaged in extensive lobbying activities – first seeking the enactment of a regime in the Criminal Code, then seeking to override the decision of the Director of Public Prosecutions to not offer SNC the possibility of negotiating a Remediation Agreement. These lobbying efforts involved SNC’s Chairman, the former Clerk of the Privy Council, reaching out directly to the (now former) Clerk; the company’s CEO writing to the Prime Minister seeking his intervention; and officials directly lobbying members of the Prime Minister’s Office over several months. Weren’t they trying to exercise and seek political influence? It sort of seems like in fact the puck threw itself on the ice. Hard to complain that you are now in the political game.
At the same time as it was following the political route, SNC also sought judicial review of the prosecutor’s decision not to enter into a Remediation Agreement. Talk about a big hill to climb!
The proceeding was met with a motion to strike from the government, which was granted in a 100-page judgment of Justice Kane of the Federal Court. A review of the decision reveals that it was manifestly correct.
First of all, it is useful to look at the actual text of the law that permits the prosecution to enter into Remediation Agreements:
715.31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:
(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;
(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;
(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;
(d) to encourage voluntary disclosure of the wrongdoing;
(e) to provide reparations for harm done to victims or to the community; and
(f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.
Conditions for remediation agreement
715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
(d) the Attorney General has consented to the negotiation of the agreement.
Factors to consider
(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors:
(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
(b) the nature and gravity of the act or omission and its impact on any victim;
(c) the degree of involvement of senior officers of the organization in the act or omission;
(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;
(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;
(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and
(i) any other factor that the prosecutor considers relevant.
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.
In spite of the fact that the section refers several times to the fact that the prosecutor “may” enter into a Remediation Agreement provided that they “are of the opinion” (4 times!) and the fact that the section says that they prosecutor “must” consider certain criteria (including “any other factor the prosecutor considers relevant”), SNC took the position that the prosecutor’s decision was an administrative act, and that they were bound to enter into an agreement (one wonders on whose terms?).
Perhaps not surprisingly, SNC’s argument that the word “may” should be read as “shall” did not gain much traction.
Prosecutorial discretion is one of the hallmarks of the Canadian criminal law system, and Canadian courts have shown themselves extremely reluctant to engage in any form of review of a prosecutor’s decision. This is not a new principle. As Justice Kane noted:
“In Miazga, the Supreme Court of Canada highlighted that the independence of the Attorney General as prosecutor is constitutionally entrenched. The Court noted at para 46:
The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (at paras. 30-32):
. . .
The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision‑making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court. . . . The quasi‑judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [Emphasis added.]”
In light of this well-known principle, not surprisingly, the Court had little problem rejecting SNC’s claim that the decision to not enter into a Remediation Agreement was merely an administrative decision and that the prosecutor was obliged to enter into the Agreement.
Despite the Applicants’ submissions regarding how the DPP’s decision whether to invite an organization to enter into negotiations for a remediation agreement could be characterized as an administrative decision, this decision is clearly an exercise of prosecutorial discretion. The statutory language of Part XXII.1, and in particular section 715.32, read in the context of the Part XXII.1 regime, supports the conclusion that the decision is purely discretionary. The nature of the decision and the jurisprudence which has identified many other decisions, some very similar to the decision at issue, as exercises of prosecutorial discretion confirm that this decision falls squarely within the prosecutor’s discretion. The consideration of the public interest and the specific factors to guide the public interest does not transform section 715.32 into an administrative decision.
Therefore, even recognizing the high standard required for a motion to strike to succeed, the Court concluded:
With all due respect to the Applicants’ well-articulated arguments, the fact that the Applicants have raised many issues, which are then debated with the Respondent, does not mean that the issues are debatable as that term was used in David Bull and does not mean that the issues should be determined by the applications judge. All the issues raised have been canvassed on this motion and, in my view, the jurisprudence has clearly addressed the determinative issues; there is no lack of certainty. Raising issues on which there will inevitably be argument does not turn them into debatable issues for the purpose of avoiding a motion to strike; the test remains whether there is reasonable prospect of success on the Application.
In short, the claim never had a chance. Now it is either onto the criminal trial, or the new Attorney General/Minister of Justice will intervene. Either way, it seems that SNC will continue to be either a political hockey puck or football. What were they thinking?