If reports are to be believed the reason why a remediation agreement was being sought in the SNC-Lavalin matter was that a conviction under the Corruption of Foreign Public Officials Act would lead to a ten-year ban from government contracting. This ban would have been brought about because of the Government of Canada’s Integrity Regime. This regime was developed by the Harper government and come into force 2015. The policy was updated by the present government in 2016.
The regime provides for a ten year suspension for a supplier from the date of conviction with respect to offences under the Corruption of Foreign Public Officials Act. That suspension may be reduced to five years if the supplier enters into an administrative agreement. The ten-year suspension with a possible reduction to five years applies to most integrity type offences under the Criminal Code, Competition Act, Income Tax Act and Lobbying Act. There are some offences where the ban would be permanent.
What is the most interesting part of the policy is that it has a Public Interest Exception. There are several grounds to invoke the exception but the most relevant one is:
d. not entering into the contract or real property agreement with the supplier would have a significant adverse impact on the health, national security, safety, public security or economic or financial well-being of the people of Canada or the functioning of any portion of the federal public administration.
The exception is to be invoked on a case by case basis.
The Criminal Code specifically prohibits consideration of the national economic interest when deciding whether a remediation agreement is appropriate. Rather than enter the treacherous waters of discussing conduct of a prosecution with the Attorney General I do not understand why the various actors were not looking at:
- Changing the policy. Or,
- Applying the exemption based upon the economic or financial well-being of Canada.