Feds say SNC-Lavalin submissions to public prosecutor over plea for deal can’t be released

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SNC-Lavalin sent more than four dozen pages of submissions to the Public Prosecution Service of Canada after the director of public prosecutions indicated she would reject its bid to avoid a criminal trial on corruption and fraud charges.

But those 55 pages can’t be released publicly, federal access to information officials said, due to commercial sensitivity.

Global News submitted an access to information request to the Public Prosecution Service of Canada on March 11, requesting “all records submitted by SNC-Lavalin to the director of public prosecutions on the issue of remediation agreements from between Sept. 4, 2018 and March 11, 2019.”

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The first date is when Kathleen Roussel, director of public prosecutions, gave the Montreal engineering giant an indication that it would not be invited to negotiate a remediation or deferred prosecution agreement, which could have seen the company admit wrongdoing and pay a fine rather than go to trial.

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It is also when she sent a letter to former attorney general Jody Wilson-Raybould outlining her decision to pursue prosecution of the company.

The latter date is when the Organization for Economic Co-operation and Development (OECD) announced its anti-bribery group was monitoring the case.

That followed explosive testimony before the House of Commons justice committee by Wilson-Raybould, who described a “consistent and sustained effort” by Prime Minister Justin Trudeau and 10 of his most senior officials to pressure her into intervening in Roussel’s decision.

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Under Section 13 of the Director of Public Prosecutions Act, the director must inform the attorney general in writing of the decision to pursue a prosecution.

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In what has become known as the SNC-Lavalin scandal, that letter has never been made public, although it has been repeatedly referenced throughout testimony about the allegations of attempted political interference that are at the heart of the controversy.

Global News requested a copy of the letter under access to information laws on March 11.

On April 23, officials mailed a release package with the four-page letter entirely redacted, save for two sentences towards the end of the letter.

“DPP is of the view that an invitation to negotiate will not be made in this case,” the letter reads. “No announcement will be made by the PPSC.”

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The attorney general has the authority to overrule a decision by the director of public prosecutions, but that has never been done before.

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It is that issue of whether to overrule the director’s decision that is at the heart of the SNC-Lavalin scandal: Wilson-Raybould has said she received inappropriate pressure from the prime minister and his top staff to intervene in the decision not to offer a deal.

SNC-Lavalin is in the midst of an ongoing court fight to try to challenge Roussel’s decision not to offer a remediation deal.

Lawyers for the company said in court filings dated April 4, 2019, that Roussel should have told Wilson-Raybould she had agreed to receive additional material from the company outlining its case for a remediation deal after Sept. 4 and should have updated her Section 13 note to reflect the additional material.

Court documents state SNC-Lavalin submitted that material to Roussel on Sept. 7 and Sept. 17, 2018.

That second submission is described as coming after lawyers for Roussel asked SNC-Lavalin on Sept. 13 to clarify details of its Sept. 7 letter.

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“Among other consequences, this resulted in the checks and balances regarding the accountability of the DPP (director of public prosecutions) built into the Director of Public Prosecutions Act being critically circumvented,” the court filings state.

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While the court filings do not clarify how many pages were submitted during this period after Sept. 4, the request by Global News indicates there were at least 55 pages of relevant records identified by access to information coordinators that they are refusing to release.

Access to information officials cited sections of the Access to Information Act that deal with financial and commercial sensitivity of third-party information, information that could result in a financial loss or gain, and contractual details or negotiations.

In a statement to Global News, a spokesperson for SNC-Lavalin said its submissions during that time are described in its court filings but would not provide further details on what they contained.

“The content of those submissions is privileged and confidential, and we shall therefore not comment further as the matter remains before the courts,”  said spokesperson Nicolas Ryan in an email.

However, those court filings do make it possible to glean at least some details about what records are likely being withheld by the government.

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In those filings, the company says it submitted additional “extensive information” to Roussel about changes in its senior management since the alleged wrongdoing, outlined its willingness to negotiate a deal that addressed all of the objectives of the new remediation regime, and provided information about the”extremely negative consequences” on its stakeholders if the company were to be prosecuted.

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The filings also state the company went into “great detail” in its Sept. 7 letter to Roussel to address concerns she had identified to the firm that it had not self-reported the alleged bribery and corruption it is charged with; self-reporting is one of the eligibility criteria for remediation deals.

“On the basis of the information thus provided, there is simply no basis for the DPP’s concern regarding self-reporting,” the court filings state that letter proves.

The letter also apparently made it “abundantly clear” that the company believes Roussel was wrong to focus on the seniority of the former top employees accused of being involved in the alleged wrongdoing.

SNC-Lavalin is charged with two counts of corruption and fraud over allegedly bribing Libyan officials to get contracts between 2001 and 2011.

It denies the allegations.

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