Focus On
Kenneth Jull

Obstruct justice prosecution of PMO officials for ‘undue pressure’ on AG an uphill battle

Wednesday, February 27, 2019 @ 2:27 PM | By Cristin Schmitz

A prime minister or his officials would not be obstructing justice simply because an attorney general believes their good-faith communications to him or her about public interest considerations in a criminal prosecution unduly pressured him or her to negotiate a deferred prosecution agreement (DPA) with a company, some lawyers suggest.

The Commons Justice Committee is investigating an allegation by The Globe and Mail that the Prime Minister’s Office (PMO) pressured Jody Wilson-Raybould last fall (before she was shuffled out of her post as minister of Justice and attorney general of Canada Jan. 14, 2019) to override last year’s decision by the Director of Public Prosecutions (DPP) to prosecute bribery of foreign officials charges against SNC-Lavalin, rather than negotiating a DPA that wouldn’t debar the Montreal-based engineering and construction giant that employs thousands of Canadians from the lucrative federal government and other major public contracts the company relies on.

Wilson-Raybould, who resigned this month from cabinet soon after the Globe story broke Feb. 7, was to testify Feb. 27 before the Justice Committee.

Jody Wilson Raybould

Former Justice Minister Jody Wilson-Raybould

It will mark the first time the Liberal MP will have weighed in publicly on the anonymously sourced explosive Globe story, which has prompted Prime Minister Justin Trudeau to state repeatedly that he never directed Wilson-Raybould to make a particular decision in the SNC-Lavalin prosecution. Clerk of the Privy Council Michael Wernick also told the Justice Committee last week that, in his view, communications to her or her chief of staff by PMO officials, that stressed the potential job losses and other economic harms that could flow from a criminal conviction of SNC Lavalin, were “lawful advocacy” and did not amount to “inappropriate pressure.”

The question of whether those communications and interactions between the attorney general and the PMO impinged on the former’s independence as chief federal prosecutor in a criminal prosecution is the central focus of the Justice Committee’s inquiries.

Any answer will turn in part on what the legal and other appropriate parameters are for such communications and interactions.

To assist the committee, Kenneth Jull of Toronto’s Gardiner Roberts testified Feb. 25 about a cutting-edge legal issue in relation to the new option of DPAs, which became available in Canada last September — i.e. can the attorney general and DPP legally consider job losses and other economic impacts on innocent workers, pensioners, third-party suppliers, etc. when deciding whether to prosecute — or negotiate a DPA for a company accused of fraud or bribery — notwithstanding a Criminal Code provision expressly barring federal prosecutors from considering the “national economic interest.”

Kenneth Jull

Kenneth Jull, Gardiner Roberts

Jull, who co-authored a book on regulatory and corporate liability and teaches a course on Financial Crimes and Corporate Compliance at the University of Toronto law school, told MPs that when deciding whether to negotiate a DPA under the Criminal Code’s Part XXII.1 (Remediation Agreements) with a company accused of fraud or bribery contrary to the Corruption of Foreign Public Officials Act, the DPP and the attorney general can properly take into account — and receive external input from the prime minister and his officials on — the potential job losses and other economic impacts on innocent workers, pensioners and third-party suppliers.

Jull argued that this is so, notwithstanding public speculation and arguments to the contrary that are based on s. 715.32(3) of the Criminal Code, which states that “the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.”

Jull said the Code’s prohibition on considering the “national economic interest” — an amorphous term — when determining whether to grant a DPA must be interpreted in line with, and in furtherance of, the six objectives of remediation agreements set out in the “purpose” section of Part XXII.1 (s. 715.31).

In particular, he pointed to s. 715.31(f) of the Code which states that an objective of remediation agreements is to “reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.”

Jull suggested it would be wrong to interpret the ban on considering “the national economic interest” so broadly as to defeat one of the most important reasons remediation agreements were enacted in the first place.

“You might ask how is it logically possible to consider the reduction of negative economic consequences for employees and pensioners and those not guilty of wrongdoing, while at the same time not considering the impact on the national economic interest — it seems like it’s a logical paradox, right?” Jull told the Justice Committee.

“I’m going to suggest that there is a way out of that logical paradox, and it comes back to the concept of the essence of corporate criminal liability,” he said. “If you have a situation where a crime is committed by senior, or even middle-level officials — but there's a whole range of folks who had nothing to do with it — those two provisions work together. You can give a deferred prosecution to save those people from being affected while at the same time, it has absolutely nothing to do with economic interest. It’s designed specifically to deal with protecting the people who had nothing to do with the bribery.”

Jull also told The Lawyer’s Daily he disagrees with speculation that there could be a successful obstruct justice prosecution arising from a hypothetical scenario that involved good faith efforts by a prime minister or his officials to remind an attorney general of the potential job losses and other possible negative economic impacts on innocent workers, pensioners and others that might occur if a criminal prosecution of a company is pursued — rather than a DPA.

Obstruction of justice “requires a willful, full mens rea,” he explained. “It would require the prosecutor to prove that people willfully intended to obstruct the course of justice. I would say on these [hypothetical] facts it would be extremely difficult to do that … because this [remediation] legislation is all new,” he said. “There’s no cases [litigated or decided] on this. People have different interpretations of how these sections interact. I think it would be extremely difficult for a prosecutor to prove, beyond a reasonable doubt, that there was a willful attempt to obstruct justice, given the potential confusion, the potential different interpretations of this legislation.”

Howard Rubel

Howard Rubel, criminal law specialist

Asked for comment by The Lawyer’s Daily, Howard Rubel, a criminal law specialist of more than 30 years’ experience, who also teaches law, agreed with Jull that the Criminal Code would not prevent an attorney general or DPP from considering — nor a prime minister and his or her officials from giving continuing input on — how a remediation agreement could reduce potential negative economic and other consequences for those who did not participate in any wrongdoing.

Rubel, of Toronto’s Heller, Rubel, said he sees “a very big difference” between what’s in the interests of innocent workers and pensioners whose economic interests would be harmed if a company becomes unviable due to a criminal conviction, and what’s in the national economic interest.

“I think particularly when you look at the Corruption of Foreign Officials Act and the restrictions on [considering] the national economic interest, the whole idea is that Canada is not supposed to give a pass to [a company] in order to curry favour with a foreign government — and that’s part of the reasoning behind that section,” he advised. “You are not supposed to say: ‘Well it would be good for Canada to make [a certain] country our friend by dropping a prosecution in relation to them so that we can gain political favours [from them]. …This [hypothetical scenario] is a million miles from that.”

Rubel further rejected speculation that a prime minister or his or her officials could be successfully prosecuted for obstructing justice simply because an attorney general said he or she felt their good faith communications to her — aimed at preserving the financial viability of a company charged with bribery that employs thousands of innocent workers and generates many economic spinoffs for the local communities — unduly pressured her to offer a DPA — which is itself a legal option.

“Obstruction of justice is aimed at actions which are taken purposefully … for an illegal purpose to obstruct the system of justice following through in its normal course,” Rubel explained. “I think governments have the right to explore all possibilities in making decisions that are for the betterment of the country. … It would be a sad state of affairs if, once a decision had been arrived at, if a topic was closed off forever, and it would be deemed inappropriate to ever revisit a matter of national importance or significance.”

Rubel also said he does not think that it would amount to obstruction of justice in a hypothetical scenario where a prime minister deliberately removed an attorney general for refusing to offer a DPA — in the hopes that the successor attorney general would revisit the matter in good faith, and possibly reverse the decision of his or her predecessor to prosecute, rather than offer a company a DPA.

“Absolutely not,” Rubel remarked. “My understanding is that cabinet ministers retain their portfolio at the pleasure of the PM — there would be no illegality in making a change, and no interference in the course of justice merely by appointing a new AG,” he said. “The action of any subsequent attorney general would still be a legal and legitimate act. Replacing someone who won’t do a legal thing [i.e. offer a DPA] with someone who will do that legal thing doesn’t obstruct the course of justice. It is still a legal thing.”

Jull told The Lawyer’s Daily that in such a scenario, “an obstruct [justice] charge would require a ‘Crown versus Crown’ prosecution which is extremely rare, and the criminal standard is very high. … On the limited facts hypothesized, I cannot offer a conclusion as it would require a much more detailed analysis of the willfulness issue and all the surrounding facts.”

Jull noted a prime minister always has the power to dismiss his or her attorney general, but is answerable to the public for his or her actions.

(The Law Reform Commission of Canada’s 1990 Working Paper 62 “Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor,” states that: “the federal Attorney General is appointed by the Prime Minister and so could be dismissed from office for insisting on a course of conduct that is against the advice of the Cabinet. In such circumstances the Attorney General might feel compelled to resign before being dismissed. Either event could be expected to have a serious political impact affecting even the government’s survival.”)

Mary Ellen Turpel-Lafond

Mary Ellen Turpel-Lafond, University of British Columbia law professor

Like Jull and Rubel, University of British Columbia law professor Mary Ellen Turpel-Lafond emphasized that the full facts of the SNC-Lavalin matter are not yet known, but are “very significant.”

“There are nuances that are very critical here,” the former Saskatchewan provincial court judge told MPs at the Justice Committee Feb. 25.

“When a prosecutor has decided to test, before a court, the evidence that the investigative branch of government has prepared for them to pursue a prosecution, that decision is a very significant decision point,” Turpel-Lafond stressed.

“There is limited lawful authority for anyone to intervene at that decision point and going forward,” she advised. “If, in the instance that you're examining — as I say, we don't know the facts — we're finding there are interventions that are seeking to address that decision point, I think that's a very significant issue that would attract concern for the rule of law in Canada.”

Turpel-Lafond stated the Shawcross doctrine — which provides that an attorney general may consult with others in determining whether it is in the public interest to prosecute a case, but that the attorney general is herself the sole decider — amounts to “a fairly flimsy foundation in terms of lawful authority” for officials to “approach an attorney general and seek to convince her of another view.”

Turpel-Lafond remarked that “prosecutors are very rarely fired for doing their job. But if an attorney general was proven to have stood firm in her decision making as a prosecutor and as a lead prosecutor for Canada, namely as the attorney general enmeshed and embedded in the very significant and well-articulated rule of law function, I think there's a very concerning situation if she would have been removed.”

She continued, “the issue of resignation versus removal — it may very well be that we have a situation where we have a prosecutor that was removed from her role as opposed to an attorney general who should resign. In fact, prosecutors should not resign. Lead prosecutors, when they’ve taken a decision, should hold firm in their decision, and that is consistent with the rule of law.”

 Turpel-Lafond also stressed that there is “a constitutional requirement, consistent with the rule of law in Canada, that prosecutors do not resign, that they stand firm in the face of pressure, if there is pressure — and I appreciate that’s not factually fully established — and they stand firmly in the defence of the rule of law.”