Yves Boisvert - Special to The Globe and Mail   
   Published March 1, 2019   
      
      
   A deferred prosecution agreement is not what you think it is   
      
   A few months ago, Via Rail awarded a $989-million contract to Siemens to   
   provide the 32 trainsets that will replace its fleet for Canada’s busiest   
   rail corridor – representing at least a tacit endorsement from this Crown   
   corporation of Canada for the    
   German multinational.  And why not?  It is one of the world’s largest   
   electrical engineering companies, after all.   
      
   But just a decade ago, this might have been far more controversial.  In 2006,   
   Siemens was accused of organizing a global system of corruption, paying more   
   than US$1.4-billion in bribes to government officials around the world.  In   
   the end, it agreed to a    
   deferred prosecution agreement (DPA) with German prosecutors: Charges against   
   the corporation were dropped in exchange for an agreement to pay a   
   €395-million fine, overhaul its management, and allow its operations to be   
   closely monitored.  In the    
   United States, the company paid fines of US$450-million to the Department of   
   Justice and US$350-million to the Securities and Exchange Commission.   
      
   Indeed, this deal was only one of the roughly 20 to 40 DPAs that are   
   negotiated every year in the United States.   
      
   Officials there see it as an efficient tool to “impose reforms, impose   
   compliance controls, and impose all sorts of behavioral change” in the   
   corporate world.  Many European countries have adopted the same practices,   
   including Britain and the    
   Netherlands.   
      
   The same rules were incorporated into Canada’s criminal law, too, and 13   
   years later, it’s clear that this DPA was enough for Canadians to believe   
   that Siemens had rehabilitated itself.   
      
   But when a Canadian company such as Quebec engineering firm SNC-Lavalin tries   
   to negotiate such an agreement, it’s as if we’re talking about corruption   
   of the highest degree.   And now, pundits are acting as if Justin Trudeau’s   
   government is    
   operating like John A. Macdonald’s during the Pacific Scandal, which saw MPs   
   accepting bribes from businesses hoping to build Canada’s transnational   
   railway.   
      
   We do not know the exact legal reasons for the decision to pursue criminal   
   charges for SNC-Lavalin instead of a DPA, only that then-justice minister and   
   attorney-general Jody Wilson-Raybould backed up the director of the Public   
   Prosecution Service of    
   Canada (PPSC) in that pursuit.   We do know, however, Ms. Wilson-Raybould felt   
   pressed by the Prime Minister’s Office to reverse that decision.   
      
   Never mind that the law permits this, nor that we’ve only heard from two   
   witnesses. Some commentators have already concluded that she was the victim of   
   undue pressure, if not a grave assault against her constitutional   
   independence. Andrew Scheer has    
   even claimed that this represents a criminal attempt to obstruct justice.   
      
   It does not.   
      
   A DPA is not a way to get a crooked company off the hook: It is a way to make   
   sure it is rehabilitated, watched, and financially punished for what it did.   
      
   All of that must be judicially approved and monitored.  Should one of the long   
   list of conditions be not respected, then criminal prosecution would continue,   
   since it is only deferred as long as the terms are complied with.  Individuals   
   involved in any    
   scheme, too, are personally prosecuted in a criminal court.  In other words,   
   DPAs aren’t soft on corruption – they’re ways to ensure a company has   
   cleaned up and pays the public for its misdeeds.   
      
   The dominant narrative outside Quebec is that the Liberals are trying to save   
   a corrupt Quebec company for partisan reasons.  Granted, the fact that the   
   Prime Minister is an MP for a Quebec riding, as he himself allegedly noted, is   
   not a legal argument.     
    But being from Montreal does give Mr. Trudeau a better sense of what   
   SNC-Lavalin represents to this country, just as Stephen Harper did with our   
   oil and gas industry.   
      
   But more importantly, most of SNC-Lavalin’s Canadian staff, which had   
   nothing to do with the alleged misdeeds from its executives, actually work and   
   live outside Quebec.  Trying to use legal tools to protect strategic economic   
   corporations from    
   bankruptcy or foreign takeover, especially one that’s woven into cities   
   across the country, is not in itself unprincipled.   
      
   Some pundits-turned-legal experts have decided SNC-Lavalin did not meet all   
   the required conditions for a DPA.  Without details from the PPSC, that may   
   well be true.  Maybe the independence of the A-G is harmed by conversations to   
   convince her to legally    
   change her mind on an issue.  Maybe the people who pressed Ms. Wilson-Raybould   
   went too far.   
      
   But until we hear from other witnesses, can we cut the grandstanding?     
      
   This is not the Canadian Pacific Railway scandal.  In fact, if there must be a   
   train-related lesson to take from all this, it’s the telling fact that   
   we’re letting a company rocked by massive scandal build our next generation   
   of trains – with nary    
   a peep.  Forgetting that would only let the conversation around SNC-Lavalin go   
   off the rails.   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)