How Trudeau can easily help SNC-Lavalin (and other corporate wrongdoers) without corrupting justice via fpcomment
“There is no solution that does not involve interference” — this is what Gerry Butts, the former principal secretary to Prime Minister Justin Trudeau reportedly told the chief of staff to then attorney general Jody Wilson-Raybould, about helping SNC-Lavalin.
The solution the prime minister reached for, however, namely suborning the criminal justice system to achieve a political/economic objective, is the wrong one. Remediation agreements are a useful tool in the prosecutor’s toolbox, but they do not solve the underlying problem, which is that the debarment policy is fundamentally misconceived. Indeed, remediation agreements are not available for conspiracy offences under the Competition Act such as price fixing and bid rigging.
Second, debarment as it is presently structured is really a further punishment layered on top of whatever the court has ordered in convicting the company. In our criminal justice system, a judge imposes a sentence commensurate with the offence after hearing evidence and submissions from both sides in open court. The judge is required to weigh a series of factors, including whether the corporation has taken steps to avoid the repetition of the offence.
A REVISION COULD MAKE IT WORSEIn mid-October 2018, the federal government released a draft revised debarment policy for comment, providing an unusually short one-month comment period. The government indicated then that it intended to implement the new policy in early 2019. Yet it still remains under consideration today.
While debarment remains automatic, there will no longer be any minimum period of ineligibility. Rather, the assistant deputy minister of Public Services and Procurement, who bears the title of “Registrar” under the policy, determines the debarment period after weighing the seriousness of the offence against steps taken by the supplier to address the conduct.
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