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I've been following the SNC-Lavalin affair relatively closely and it's true as @JamesB_Kelly says that Canadian lawyers have been pretty quiet on this one
So let me try and make some noise
Parts of the controversy are troubling, others less so
Thread
So let me try and make some noise
Parts of the controversy are troubling, others less so
Thread
Making a significant and important change to the Criminal Code in an omnibus budget bill with inadequate parliamentary scrutiny is troubling
But political/legal disagreement about the meaning of this new Criminal Code provision is not so surprising
But political/legal disagreement about the meaning of this new Criminal Code provision is not so surprising
Maybe I'm missing something but when I search Hansard for "deferred prosecution agreement" I get (until last month) mainly tumbleweed.
But there are some astute comments by @PierrePoilievre and @DanAlbas
ourcommons.ca/Parliamentaria…
But there are some astute comments by @PierrePoilievre and @DanAlbas
ourcommons.ca/Parliamentaria…
There is nothing wrong with omnibus bills.
But using them to make substantive changes to the law is bad practice.
It reduces the time for parliamentary scrutiny and can lead to (as we will see) bad legislation.
I commend @ADodek's excellent article:
papers.ssrn.com/sol3/papers.cf…
But using them to make substantive changes to the law is bad practice.
It reduces the time for parliamentary scrutiny and can lead to (as we will see) bad legislation.
I commend @ADodek's excellent article:
papers.ssrn.com/sol3/papers.cf…
Why is this legislation "bad"?
Some of it is pretty straightforward.
Here is the list of factors a prosecutor has to consider before entering into a "remediation agreement" (or "deferred prosecution agreement"; the terms aren't that important)
Some of it is pretty straightforward.
Here is the list of factors a prosecutor has to consider before entering into a "remediation agreement" (or "deferred prosecution agreement"; the terms aren't that important)
But in other respects its scope is unclear.
On the one hand, one of the purposes of these agreements is to "reduce the negative consequences" of a company's wrongdoing for blameless "employees, customers, pensioners and others" (some of whom may, obviously, also be voters...)
On the one hand, one of the purposes of these agreements is to "reduce the negative consequences" of a company's wrongdoing for blameless "employees, customers, pensioners and others" (some of whom may, obviously, also be voters...)
On the other hand, when a company is accused of the crimes SNC-Lavalin is accused of, the prosecutor cannot consider the "national economic interest".
This is, word for word, from article 5 of the OECD bribery convention:
oecd.org/daf/anti-bribe…
This is, word for word, from article 5 of the OECD bribery convention:
oecd.org/daf/anti-bribe…
So the prosecutor can consider the effects of an agreement on blameless individuals, but not on the national economic interest.
Good luck, prosecutor!
Dare I say that some parliamentary scrutiny could have helped iron out these kinks?
Good luck, prosecutor!
Dare I say that some parliamentary scrutiny could have helped iron out these kinks?
And this seems to be where the difficulties begin.
What is the scope of this provision?
What is its interrelationship with the Attorney General's power to issue a direction to a prosecutor (a direction that must be published in the Canada Gazette for all to see?)
What is the scope of this provision?
What is its interrelationship with the Attorney General's power to issue a direction to a prosecutor (a direction that must be published in the Canada Gazette for all to see?)
The answers to these questions are not obvious.
They could and should have been teased out in committee.
But that ship has sailed.
Now, reasonable lawyers might well disagree.
Both @jesshwprince and @mbouchardmtl are very good, very reasonable lawyers. So is @Puglaas.
They could and should have been teased out in committee.
But that ship has sailed.
Now, reasonable lawyers might well disagree.
Both @jesshwprince and @mbouchardmtl are very good, very reasonable lawyers. So is @Puglaas.
Suggesting that an external legal opinion might help to give answers is not unreasonable.
That said, I'm not sure external legal advice would help that much in resolving the tensions in the unscrutinized provisions that have caused all this bother.
That said, I'm not sure external legal advice would help that much in resolving the tensions in the unscrutinized provisions that have caused all this bother.
Even a wise retired Supreme Court justice could not give a definitive answer!
So, it might be that both @Puglaas and her team; and the PM and his team, had reasonable positions about when a remediation agreement is appropriate.
Oh for some proper parliamentary scrutiny!
Ends
So, it might be that both @Puglaas and her team; and the PM and his team, had reasonable positions about when a remediation agreement is appropriate.
Oh for some proper parliamentary scrutiny!
Ends
