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If I may, I want to offer a few lawyerly thoughts on the latest in the SNC-Lavalin story. With the utmost respect to the journalists working on this and the pundits pundit-ing about it, I’m far from convinced that all the breathlessness is justified.

The question, last year, was whether to negotiate a “remediation agreement” with SNC-Lavalin. The authority to do so is found in Part XXII.1 of the Criminal Code.

Note s. 715.32(1)(c), below. It requires the Attorney General to sign off on the negotiation.
Why would Parliament require the Attorney General — a member of Cabinet — to approve the negotiation of a remediation agreement?

I’d suggest that this is to ensure political accountability for what is ultimately a policy decision as much as (or more than) a prosecutorial one.
Put differently, our legislators didn’t want the government to be able to hide behind the Director or Public Prosecutions (whom the government appoints) when it negotiates this kind of agreement with a defendant. Why? Because unhappy voters can fire politicians, not prosecutors.
So, that covers a situation in which prosecutors want to negotiate a remediation agreement. What if — as in SNC-Lavalin’s case — they don’t want to do so?

Let’s turn now to the Director of Public Prosecutions Act, which Parliament enacted under the last Conservative government.
Section 10 of the Director of Public Prosecutions Act empowers the Attorney General to issue directives concerning the conduct of specific prosecutions. Such directives must be published in the Canada Gazette.
Why would Parliament give the government the power to direct prosecutions?

The answer, again, is accountability. We want executive authority always to be subject to legislative control. That means holding governments responsible for the policy choices that prosecutions entail.
Back to SNC-Lavalin. A criminal conviction could destroy the company — and the livelihoods of thousands of Canadians. A remediation agreement could avoid that outcome.

It’s a tough call. Someone has to make it. And someone has to be democratically accountable for it. But who?
Parliament has answered that question: whether to negotiate is the government’s choice to make — and thus to own politically.

In terms of legal effect, and for accountability purposes, I’d suggest that consenting to a negotiation or not is tantamount to directing one or not.
Where does that leave us? I’d offer three conclusions.

First, concerning today’s headline, nothing turns on whether the Prime Minister spoke to the Attorney General before or after federal prosecutors had decided not to negotiate a remediation agreement with SNC-Lavalin.
It was still up to the Attorney General either to overrule the prosecutors by issuing a directive, or to decline to do so. That policy judgment remained to be made. The government would be accountable for it. Why wouldn’t the Prime Minister and the Attorney General discuss it?
Second, even if the Prime Minister “pressured” the Attorney General, that would merely reflect the legislative scheme and the accountability it ensures. Parliament left this decision in the hands of politicians, and for good reason. It knew how Cabinet works when it did so.
Prosecutorial independence is crucial, but not limitless. Parliament has decided that, even here, accountability requires political control.

Indeed, had this story played out differently, the opposition may well have attacked the government for failing to rescue SNC-Lavalin.
Third, it follows that discussions between the Prime Minister and the Attorney General about negotiations with SNC-Lavalin are not privileged. Under the applicable legislation, this was a policy decision. (I suspect Mr. Cromwell has already said as much to Ms. Wilson-Raybould.)
The foregoing isn’t intended to address all the issues that the SNC-Lavalin story raises. I mean only to offer some perspective on the legal backdrop.

The bottom line, I suppose, is that this isn’t actually all Scott Brison’s Fault, after all. It’s Parliament’s.
Now that you’ve waded through an entire thread of my law-nerdery, why not enjoy some of my friend @Honickman’s? He disagrees with me, and his response is worth your time.
This is true; I worked for Michael Ignatieff when I was 22. I’ve since graduated from Yale Law School, served as Law Clerk to the Chief Justice of Canada, and been counsel in five appeals to the Supreme Court.

But, yes, I’m a former Liberal staffer, too.
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