Via the National Post:
We need to make sure that everyone is clear on what one can and cannot say to the attorney-general in the context of a prosecution, and in particular the decision on whether or not to enter into a remediation agreement
The Standing Committee on Justice and Human Rights has now held multiple meetings and heard from 10 witnesses on issues involving the prosecution of SNC-Lavalin. As chair, I have a unique role. I do not vote and must enforce Parliamentary rules in a fair way. Given the subject matter, once we began hearing from witnesses, I took the unusual precaution of stating that I would not give my opinion publicly until we completed witness testimony. Now that we have, I wanted to present my views, from the unique lens of someone who had an up close view of all that occurred at Committee.
It is important to remind Canadians that the justice committee is not a court. We are neither a tryer of fact or a jury — we are parliamentarians. These meetings have been very different from the work we normally do, which is to study laws and make recommendations.
Notwithstanding that, I am pleased that we have taken an issue of concern and shone light on it through witness testimony.
Here are my conclusions:
Remediation agreements are not some device slipped into the Criminal Code to assist SNC-Lavalin. These agreements have been used successfully in the United States for 20 years and are used in the U.K. and being introduced in Australia. They were incorporated into law in Canada after years of consideration by the Department of Justice and extensive public consultations in 2017. In my view, the provisions of the Criminal Code on remediation agreements are entirely appropriate.
As stated on the Department of Justice website, a main purpose of remediation agreements is to reduce the harm that a criminal conviction of an organization could have for employees, shareholders and other third parties who did not take part in the offence. It is the duty of the attorney-general to consider such facts seriously and on an ongoing basis. As such, in my view, offering important information to the attorney-general as relates to the risks posed to the 9,000 Canadian employees and the thousands of pensioners and suppliers of SNC-Lavalin was appropriate. This is a public policy issue that does not fall under the national economic interest category which cannot be considered by a prosecutor.
A prosecutor has an ongoing duty to consider new facts in determining how to handle a prosecution. In the case of remediation agreements, the attorney-general always has the ability to decide to enter into such an agreement and publicly offer the reasons why. As such, I do not agree there is any date after which you can no longer offer additional public interest information to the attorney-general.
No criminal activity occurred. The former attorney-general said this herself. However, I also believe that public officials should be held to a higher standard. Public servants should always act in the best interests of those who elected them or those they serve and should be held to a high standard of ethics.
It is hard to determine if behaviour is ethical when rules are ambiguous. In this case, the law is unclear. It is based on a 1951 speech in the House of Lords where the then attorney-general of England and Wales set out his view of what is or is not appropriate in interaction between the attorney-general and other officials.
We heard from witnesses who participated in the same conversations and come close to agreeing on the facts, but differ completely on their interpretation of those facts. The former attorney-general made a cogent case for why the line was crossed and excessive pressure put on her. Other witnesses also provided cogent testimony explaining why they believed they and their colleagues acted entirely appropriately in conversations with the former attorney-general. In the end result, because the rules are so unclear, different people of good faith can have a contrary interpretation of the events.
What Canadians should be most concerned about is clarifying this for the future. We need to make sure that everyone is clear on what one can and cannot say to the attorney-general in the context of a prosecution, and in particular the decision on whether or not to enter into a remediation agreement, which is an entirely new concept in Canadian law.
We need to formulate clear rules as to appropriate interactions with the attorney-general as relates to prosecutions and remediation agreement considerations. Then everyone (Parliamentarians, staff and officials) needs to be educated on these rules.
We also need to give serious consideration to the separation of the office of attorney-general from that of the minister of justice. The fact that these roles have been twinned since Confederation does not mean we cannot look at other jurisdictions, such as the U.K., where the roles are separate, and consider how that system might be better than the one we have today.
These are my conclusions but I respect those whose conclusions differ from my own. In the end, I hope we can all learn from this experience and move forward with improvements to our system.
Anthony Housefather is the member of Parliament for Mount Royal and chair of the Standing Committee on Justice and Human Rights
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