It’s been over a month since the SNC-Lavalin scandal broke, leaving in its wake a lot of questions linked to one big one — about whether the prime minister and his senior staffers exerted improper pressure on the attorney general.
At the centre of this furor is the core question of whether the Prime Minister’s Office attempted to inappropriately influence then-attorney general Jody Wilson-Raybould to issue a deferred prosecution agreement (DPA) for SNC-Lavalin. A DPA is a legal tool similar to a plea bargain that would allow the engineering giant to avoid a criminal trial on bribery charges by admitting wrongdoing, paying fines, giving up any money it earned in the commission of a crime and agreeing to be monitored for a period of time.
Prime Minister Justin Trudeau’s denial of wrongdoing has done nothing to put the controversy to bed. The answers to the following four unanswered questions may decide how — or if — Trudeau and his Liberal government can recover from the worst political crisis they’ve faced to date.
Will SNC-Lavalin get a deferred prosecution agreement?
Despite the scandal that has engulfed Trudeau’s government, SNC-Lavalin could still get a DPA.
Both Director of Public Prosecutions Kathleen Roussel and Wilson-Raybould refused to give SNC-Lavalin a DPA. On Friday, the Federal Court upheld Roussel‘s decision.
David Lametti, Canada’s new attorney general, and the prime minister himself have said that a DPA remains an option until there’s a trial.
Craig Martin Scott, a York University law professor, also agrees that nothing would stop the attorney general from overturning both the director of public prosecutions’ and his predecessor’s decision to let the DPP’s call stand.
But it might not be practical to expect any attorney general to keep up to speed on the case for that long, he said.
“To say that the AG has the same kind of active duty to constantly be keeping in mind a file in order to determine [whether to] intervene with the prosecutors, that just doesn’t follow,” he said. “No system can work with the AG constantly being on watch over multiple files as to whether they’re going to intervene.”
Having Canada’s attorney general intervene in a matter that was closed entails some geopolitical risk as well.
China’s foreign ministry already has questioned whether the Canadian government is enjoying a double standard in its legal treatment of foreign and domestic firms — arresting Huawei’s Chief Financial Officer Meng Wanzhou on an American extradition request while pursuing a legal tool that would allow a major Canadian employer to avoid a criminal trial.
Former attorney general Irwin Cotler said Beijing is already spinning the scandal in its favour.
“I see this as really as a political manipulation and misrepresentation of the rule of law in Canada,” Cotler told CBC’s Power and Politics Thursday.
Are thousands of jobs really at stake if SNC-Lavalin is found guilty?
Although the PMO has warned that proceeding with criminal charges against SNC Lavalin could put about 9,000 Canadian jobs at risk, experts say that kind of job loss is unlikely.
Even if a court finds SNC-Lavalin guilty of criminal charges and ineligible to bid on federal contracts for a decade, it would take a number of years for the court to deliver that verdict.
And the engineering company would still be eligible to bid on private sector, municipal and provincial government contracts.
SNC-Lavalin now has most of its business and employees tied up with international work, and it would still be legally permitted to bid on foreign contracts.
And even if large numbers of SNC-Lavalin employees find themselves thrown out of work by a conviction, they’d likely be able to pick up work elsewhere since skilled engineers are in high demand, as the CBC’s David Cochrane points out in the CBC Frontburner podcast.
Does Canada’s cabinet system make attorneys-general vulnerable to political pressure?
In her testimony before the Commons justice committee, Wilson-Raybould said the pressure exerted on her as attorney general wasn’t illegal, but it was inappropriate.
Trudeau and the PMO have insisted that they always made it clear to Wilson-Raybould that the decision to proceed with prosecution rested with her alone, and that none of the conversations he or his staff had with her were inappropriate.
In short, the events of the last couple of weeks have raised the question of whether there should be a political firewall between the PMO, cabinet and the attorney general.
Currently, the attorney general sits at the cabinet table with other federal ministers. Wilson-Raybould alleges 11 people from the PMO, the Privy Council Office and the Department of Finance politically interfered with her duties.
Many, including Wilson-Raybould, have called on Canada to consider following the lead of England and Wales and other jurisdictions, where the office of the attorney general and the justice minister are kept separate.
“I think it would be a lost opportunity not to have a real discussion about whether this dual role is still sustainable,” Trevor Farrow, associate dean at Osgoode Hall Law School, told CBC News recently.
“It’s also important to put Canadians at ease — that they not only see that they have a justice system that is fair and equitable, but that it’s seen to be fair and equitable for all players, not just the powerful.”
What will come of the investigations?
The PMO’s actions on this file are the subject of two investigations — one by the Commons justice committee and the other by the federal ethics commissioner.
After hearing from all of its witnesses, the committee will issue a final report. It’s not clear what will be in that report and whether it will have the unanimous support of all parties represented on the committee.
The ethics commissioner is digging into whether Trudeau or his staffers violated section nine of the Conflict of Interest Act.
The section prohibits senior government officials from influencing the decisions of another person so as to “improperly further another person’s private interests.”
But in the end, the act doesn’t give the commissioner the power to impose fines or any type of punishment.