This is the decision of Justice Kane in the application of SNC-Lavalin for an order compelling the Director of Public Prosecutions to enter into negotiations for a remediation agreement and directing that it negotiate in good faith. The DPP was applying to have SNC’s main application struck. When I appeared on the Boys in Short Pants Podcast I predicted that Justice Kane would grant the DPP’s application as there was almost no basis for SNC to succeed. Her decision largely followed along the lines that I outlined.
The DPP made her initial decision on September 4th, 2018. SNC made further submissions. The DPP reviewed those submissions and confirmed her decision in a letter dated October 9, 2018.
SNC argued that the decision to enter negotiations was an administrative decision based upon identified criteria and therefore was subject to judicial review. It asserted that it met the criteria and therefore there was no reason not to invite negotiations. The DPP’s position was that the decision was purely a matter of prosecutorial discretion and therefore was not reviewable. The DPP applied to have the application struck on the grounds that there was no prospect of success.
It is important to stop the discussion at this stage. This was an application to strike the proceeding without even considering its merits. It is very difficult to succeed on a motion to strike as the applicant (in this case the DPP) must show that the SNC did not have a reasonable prospect of success. There is a very high threshold to be met before a court will order that an application be struck without even looking at its merits.
The court described the basis for SNC’s argument that a remediation agreement was appropriate in paragraph 13 of the decision. The information provided related entirely to post-2012 efforts on compliance, the turn-over of senior management and board members, dismissal of senior officers accused of questionable activities, and, the impact of the prosecution, a lengthy trial and possible conviction upon employees, shareholders and pensioners. Note that there were no submissions regarding cooperation, self-reporting or a willingness to admit guilt. The court gives a nice summary of the remediation regime in paragraphs 14 to 20 of the decision.
The essence of the SNC argument was that:
- The remediation agreement regime was a statutory framework established by Parliament that limited the DPP’s discretion.
- Without judicial review there would be no way to ensure that prosecutors were fulfilling their duty to negotiate when the criteria were met.
- The DPP had a duty to negotiate once the conditions and criteria were satisfied.
- This was a novel area of law that needs to be considered by the court.
The DPP’s application to strike was based upon:
- Prosecutorial discretion is not subject to review except in cases of abuse of process.
- The issues with respect to exercise of prosecutorial discretion have been widely considered and are not novel.
- There is no obligation upon the DPP to provides reasons for a discretionary decision and this is one of many instances in the Criminal Code where justification is not required.
Justice Kane starts her analysis in paragraph 72 she begins by citing the decision of Krieger v Law Society of Alberta (SCC 2002)
43. “Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
Justice Kane then goes on to cite several Supreme Court of Canada cases which are very relevant to the political controversy. She writes at paragraph 77:
 In Miazga, the Court also highlighted that prosecutors have a quasi-judicial role and make their decisions free of judicial or political interference, explaining at para 47:
In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as “ministers of justice”: Boucher v. The Queen,  S.C.R. 16, at p. 25, per Locke J. In R. v. Power,  1 S.C.R. 601, at p. 616, L’Heureux-Dubé J. acknowledged the importance of limiting judicial oversight of Crown decisions in furtherance of the public interest:
[T]he Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor’s motives when he or she makes a decision. [Emphasis added.]
Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals.
Justice Kane then considered many cases that established it is important to avoid importing administrative law principles into the criminal law context. She then found that the decision to enter into negotiations for a remediation agreement is clearly a matter of prosecutorial discretion.
Justice Kane has a very helpful discussion of the public interest. The Applicant had argued that the reference to the public interest in the remediation agreement provisions meant that this was an administrative decision. She notes that public interest is a factor in all prosecutorial decisions. She noted the exclusion of national economic interest when the prosecutor forms the opinion regarding the propriety of a remediation agreement and makes clear that this is simply an indicator of informed and thoughtful prosecutorial discretion.
Justice Kane concluded that the DPP’s decision was plainly a matter of prosecutorial discretion and that SNC’s application for review should be struck.