Remediation Agreements and the Authority to Direct the Director of Public Prosecutions

Various of the stories on the SNC-Lavalin matter have suggested that the point of conflict with Ms. Wilson-Raybould (the former AG) was her refusal to direct the Director of Public Prosecutions (DPP) to enter into a remediation agreement with SNC-Lavalin.

Section 10 of the Director of Public Prosecutions Act allows the AG to give directions to the DPP “…with respect to the initiation or conduct of any specific prosecution…” That direction must be in writing and published in the Canada Gazette.

The ability to give a directive is not unlimited. Although I am stating the obvious the directive must be lawful and must be with respect to some authority granted under the Criminal Code. The directive must be about the conduct of the prosecution. It is not a directive to the DPP to change her legal opinion but a directive to take a step in the prosecution. That step must be lawful.

In SNC-Lavalin case the DPP determined that the prerequisite conditions for a remediation agreement had not been met. I do not think that it would have been lawful for the AG to direct the DPP to enter into negotiations with SNC-Lavalin or a remediation agreement with SNC-Lavalin where the DPP had determined that the prerequisite conditions had not been met.

There were potentially two avenues open to the former AG:

1.       If she determined that the prerequisite conditions in s. 715.32 had been met, take over the prosecution and enter into a remediation agreement with SNC-Lavalin. Or,

2.       Direct the DPP to discontinue the prosecution of SNC-Lavalin under the Corruption of Foreign Public Officials Act. Doing that would then allow the DPP to take into account the national economic interest (something that is prohibited by s. 715.32(3) of the Code where those charges are outstanding). Whether a remediation agreement is appropriate then becomes a balancing test and I think that it would have been open to the former AG to direct that the greatest weight be given to the impact of the remaining Criminal Code charge upon the national economic interest.

Author: Tom Jarmyn