When the Organization for Economic Co-operation and Development announced on Monday that it will keep an eye on the way Canada handles the bribery prosecution of SNC-Lavalin, it was another reminder that the whole business will be under a microscope for a while.
It’s just tough luck that the politician who has to decide what to do next, Justice Minister and Attorney-General David Lametti, doesn’t have a lot of good options.
The former law professor might have been handed a dream job when he was appointed in January, but it turned out he was dropped between a rock and a hard place.
His predecessor, Jody Wilson-Raybould, accused Prime Minister Justin Trudeau and his operatives of putting political pressure on her to halt the bribery prosecution of SNC-Lavalin and strike a negotiated remediation agreement. The PM insists he was only trying to advocate for the company’s 9,000 jobs in Canada, and did not cross the line to interference.
So what does Mr. Lametti do now? Does he intervene and make people think that he’s bowed to his political master in a criminal prosecution? Or does he stay out of it, confirming Ms. Wilson-Raybould’s choice, and implicitly deflating the Prime Minister’s suggestion that there was a risk to jobs that had to come first?
Politically, it would probably be a better idea for the Attorney-General to let the SNC-Lavalin prosecution proceed, and for Mr. Lametti to tell the country the matter is now settled. That could help Mr. Trudeau put the whole business behind him. But Mr. Lametti doesn’t have that option. Mr. Trudeau made a big deal (in the case of Ms. Wilson-Raybould) of saying that the attorney-general should keep an open mind until the court case is concluded. Mr. Lametti can’t announce a final decision now.
Any decision leads to political trouble. So does virtually anything Mr. Lametti says.
He made news in February when he said he’ll keep an open mind about whether he’ll intervene. Political opponents cited that as proof that Mr. Trudeau fired Ms. Wilson-Raybould to appoint a more malleable attorney-general. But, after all, the lawyerly Mr. Lametti couldn’t very well announce that he wouldn’t bother considering the merits of the case.
The other option was to say nothing. But the Liberal government’s early response to the SNC-Lavalin affair was all about legalisms – the Shawcross doctrine, deferred prosecution agreements, solicitor-client privilege, cabinet confidences – and they wanted the government’s chief lawyer as spokesman.
Mr. Lametti isn’t badly cast for the role. He’s a rookie MP, not a career politician. He is a former McGill law professor, and former clerk to a Supreme Court justice, and one-time co-captain of the Oxford hockey team with current Bank of England Governor and former Bank of Canada governor Mark Carney.
It’s basically up to him now, after the Federal Court of Canada on Friday shot down SNC-Lavalin’s effort to force the director of public prosecutions to negotiate a deferred prosecution agreement. He’s supposed to make a prosecutorial decision, not a political one, but even so, that requires him to judge the public interest.
It’s a tight spot. He’s an MP from Montreal, where SNC-Lavalin is based. He works for a Prime Minister who keeps answering questions about the prosecution by talking about SNC-Lavalin jobs. There are a few people in his government who think arguing for jobs is good political ground to fight from, and that the government might as well give SNC-Lavalin its deal.
But intervening would not only be a highly controversial decision for Mr. Lametti, it could spark new shocks. Would director of public prosecutions Kathleen Roussel feel her independence was undermined, and resign? Would the OECD publicly question Canada’s commitment to the international fight against corruption?
Mr. Lametti can certainly expect a court challenge by one group or another, claiming there had been political interference that amounts to abuse of process. That’s what happened in Britain when prosecutors dropped the bribery prosecution of BAE Systems after officials, including then-prime minister Tony Blair, warned it would endanger national security. Such a case would keep the SNC-Lavalin affair in the headlines throughout the election campaign.
Or Mr. Lametti could decide not to intervene. But since he cannot say the decision is final, he won’t be able to dispel the notion that he’ll intervene later. There just isn’t an easy option.