All criminal prosecutions are carried out in the public interest. Although a crime may well have been committed, a prosecutor can, after a reasoned review of all the circumstances, conclude that it would nonetheless not be in the public interest to lay a charge. We see this approach most frequently when alternative measures are applied. In such cases, individuals, arrested for minor crimes and who are first offenders, are notified that they will not be charged. In other instances, charges may not be filed where, for instance, a charge would have been normally instituted by summary conviction but the complaint was made outside the 6 months delay allowable for summary proceedings. In such a case, the prosecutor may opt not to charge despite being in a position to file an indictable charge, which carries a heavier potential punishment but is not time-prescribed. The prosecutor may feel it would be unfair to pursue the charge where it belonged in the realm of summary conviction proceedings. There may be cases where the anticipated proof is limited to one witness who becomes reticent to cooperate with the authorities. In short, there are countless examples of the exercise of prosecutorial discretion in determining that the filing of a charge would not be in the public interest. That said, the culture that inhabits Crown attorneys is such that it is generally presumed that where evidence points to a crime, absent compelling circumstances, it is in the public interest to prosecute.
When the Criminal Code was recently amended to introduce remediation agreements, Parliament opened the door to negotiated out-of-court settlements of significant corporate crimes so long as specified criteria were met. Given the timing of the amendments, it can be safely argued that our legislators were concerned that some corporate entities, and in this case SNC-Lavalin, would be unduly damaged by a prosecution such that vital jobs would be lost despite evidence that the company had cooperated with the authorities, purged itself of the senior managers associated with the crime(s), had a healthy corporate governance strategy in place, and was in a position to make substantial financial amends. In fact, insofar as SNC-Lavalin is concerned, a number of its senior managers have indeed been prosecuted, convicted, and jailed.
Corporations don’t go to jail. Prosecutions of the type facing SNC-Lavalin are long, uncertain, costly, and, at the end of the day, can only result in the imposition of monetary punishment which can form part of a remediation agreement in any event. It is hard to imagine why prosecuting SNC-Lavalin would be in the public interest. The company could conceivably collapse during or as a result of the proceedings thereby terminating the gainful employment of thousands of innocent workers and to what end?
It is not surprising that the Prime Minister, and members of his cabinet, chose to confront the then Attorney General on her apparent decision not to intervene in the decision of federal prosecutors to pursue charges. In fact, one would think she would have expected it. The prosecutors in this case were surely subject to pressures from the police investigators involved. They, much like the Attorney general, are not confined to ivory towers. As stated above, the culture that inhabits prosecutors is such that they are generally inclined to lay charges where they are morally convinced they can establish guilt beyond a reasonable doubt. Such is their culture, historically. However, remediation agreements are new territory and in conflict with this culture. The stakes in this case are enormous and the Attorney General would not have be faulted for scrutinizing the decision to prosecute if she felt the attorneys involved failed to properly apply public interest considerations. They may have needed to be reminded that this was new legislation introduced to address the challenges of corporate criminal responsibility, requiring that the decision-making process be informed by a new culture.
The Prime Minister may have invoked legitimate factors and others less so, if they were indeed, as reported, of a political nature. But the Attorney General is a politician as well, and so long as the pressure was not undue, and her testimony before the Commons Justice Committee, emotions aside, did not suggest it was, there is little rational basis for the scandal that is now brewing. It would be hard to imagine how the prosecution of SNC-Lavalin would be in the public interest.