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Recently, the government of Justin Trudeau in Canada has faced a scandal concerning political interference in the corruption prosecution of the Quebec construction company SNC-Lavalin. Prosecutors faced a choice between

  • pursuing the prosecution to a conviction, which would bar the company from Canadian government contracts for ten years

or

  • pursuing a "remediation agreement" under which the company would pay a substantial fine.

Prosecutors decided to pursue the prosecution, despite concerns (not least from Trudeau) that this would substantially damage SNC-Lavalin and lead to job losses in Canada. In the past 7 years, SNC-Lavalin has had executive turnover and made a show of changing its corrupt culture.

In light of these facts, I am surprised that the prosecutors were unwilling to pursue a remediation agreement. What was the reasoning for pursuing the prosecution instead? Were the changes at SNC-Lavalin found to be less substantial than heralded?

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    While I don't have any specific details, at some point don't prosecutors have a responsibility to stop slapping wrists and actually attempt to stop corruption via prosecution? – Jontia Mar 4 at 7:36
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"Prosecutors decided to pursue the prosecution, despite concerns (not least from Trudeau) that this would substantially damage SNC-Lavalin and lead to job losses in Canada."

In the specific context of prosecutions under the Corruption of Foreign Public Officials Act (under which SNC is charged), the national economic interest is explicitly excluded as a relevant factor.

The legislation makes it explictly forbidden to consider the possibility of job losses in Canada, despite however much any particular politician may want them to be.

By way of corroboration, this official government report to parliament says:

As well, 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 of individual involved as a relevant factor in deciding whether to enter into negotiations for an RA with an organization alleged to have committed a CFPOA offence.

(where "RA" is Remediation Agreement -- the hot topic of discussion regarding SNC-Lavalin.)

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    +1. re: " the national economic interest is explicitly excluded as a relevant factor." If that's true, I'd consider the question resolved. It could very well be true, but I unfortunately haven't been able to corroborate it. The Financial Post article is a little polemical so I'm reluctant to take it at face value. – Colin Mar 8 at 6:26
  • Good point, @Colin -- I've added a link and some text to help shore this up a bit. – Roger Mar 11 at 16:11
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According to this article on the BBC, the concept of Remediation Agreements is a new one and appears to have been lobbied for specifically for the issue in question.

The Liberal government brought in the remediation agreement regime in 2018 as part of a massive budget bill following lobbying efforts by the company [SNC-Lavalin].

According to this article in Canada's National Observer, Jody Wilson-Raybould at that time the Justice Minister failed to appear before the senate committee that was responsible for the bulk of the scrutiny that the remediation amendment received.

The Criminal Code amendment was stuffed into an omnibus budget implementation bill last year and got little scrutiny from MPs on the House of Commons finance committee.

But when it got to the Senate, the upper chamber's legal and constitutional affairs committee was tasked with scrutinizing the provision, which allows prosecutors to negotiate remediation agreements, a kind of plea bargain, in cases of corporate corruption.

There's more in the Observer article, but it appears that Wilson-Raybould did not agree with the remediation concept in the first place and was willing to duck Senate Committee meetings to delay or potentially block passage of the bill with the amendment attached, and by logical extension would not have wanted to use the Remediation Agreement to allow SNC-Lavalin to avoid prosecution.

It would seem the level of change at SNC-Lavalin was not relevant to this stance, there appears to be an underlying belief that this legislation exists either purely or in the main to allow SNC-Lavalin to avoid prosecution, and Wilson-Raybould was not inclined to co-operate with that strategy.

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