Both sides are right. Both wrong - Keith Roulston editorial

For all the acres of newsprint that have been covered by ink with facts and speculation about the SNC-Lavalin controversy, for all the hours of television air time used up by talking heads giving their opinions, how you feel about the situation probably says more about you than the facts.

In reality, both sides of the never-ending debate are right – and both sides are wrong. It depends on how you define the bottom line of whether the government should pursue criminal prosecution of the giant Montreal-based engineering company for alleged bribery and corruption charges to win contracts from the former Libyan dictator Muammar Gaddafi nearly two decades ago.

Kathleen Roussel, Canada’s director of public prosecutions, feels strongly that criminal prosecution is the only way to go. This is despite the fact that an alternative is available through a deferred prosecution agreement (DPA) under which the company can avoid a trial and conviction by paying a large fine and agreeing to a court-supervised program to root out corruption within the company. Former Attorney-General Jody Wilson-Raybould took the side of Roussel.  

As might be expected, SNC-Lavalin argued the other side of the case. If the company has a criminal conviction it will be ineligible to bid on federal contracts for 10 years, meaning there’d be a shortage of work for many of the nearly 9,000 people on its Canadian payroll. What’s more, the company suggested, since most of its work was outside of Canada, the company might move its headquarters to a more friendly jurisdiction. In the U.S., for instance, 96 per cent of all foreign bribery prosecutions since 1999 have been settled through DPAs.

With the fate of nearly 9,000 employees in the balance, not to mention the possible loss of another company headquarters (several multi-national Canadian corporations have abandoned Canada in recent years), other members of the government felt a DPA solution was preferable to criminal prosecution.

Over a three-month period late last year, Prime Minister Justin Trudeau, Finance Minister Bill Morneau, the Clerk of the Privy Council Michael Wernick and Gerald Butts, the Prime Minister’s chief of staff, spoke with Wilson-Raybould, trying to convince her to intervene and use the DPA route. The former attorney-general felt this amounted to undue political interference in the justice system. Given her belief in supporting her director of prosecutions, Winston-Raybould’s refusal to change her mind is admirable.

For the government, which must look not just at legal but economic issues (not to mention politics), the DPA solution seems obvious. The Organization for Economic Development notes that 78 per cent of foreign bribery cases since 1999 within its member countries have been resolved through non-trial solutions such as DPAs. Canada didn’t have a DPA alternative until legislation creating one was passed by the Liberal government earlier, probably with a case like the SNC-Lavalin charges in mind.

“Undue pressure” is one of those issues that is defined by the person who feels they are being pressured. Those who spoke to Wilson-Raybould no doubt thought they were simply trying to prevent her from making what they felt would be a mistake for the country. The fact that keeps getting overlooked is that despite all the accusations, the criminal prosecution of SNC-Lavalin continues on track, despite the Prime Minister’s wishes. Obviously the “interference” only went so far.

While both sides can claim honourable intentions, things get murkier in the aftermath. After she was shuffled to a lesser role in cabinet in January, Wilson-Raybould’s side of the story was leaked to The Globe and Mail, setting the whole controversy in motion. She swears she didn’t authorize anyone to talk.

On the other side, someone revealed to the media that Wilson-Raybould had urged the Prime Minister last year to fill a vacancy on the Supreme Court with a candidate he felt wasn’t appropriate. She wants to know who leaked this information (inappropriately) to the media. Allegations that she was a difficult boss to work for have also been circulated.

And then there are the scratch-your-head elements. When The Globe and Mail story blew the issue sky-high, Wilson-Raybould 

quit the cabinet, saying she’d lost confidence in the Prime Minister. Days later she was followed by Jane Philpott, the Treasury Board president, who also said she had no confidence in the PM. Both stayed in the Liberal caucus, yet both have also fed more fuel to the controversy every time it seemed to be dying down.

With no absolute right or wrong except the right each of us chooses, this controversy seems ready to go on forever.