Posted on April 2, 2019 in Governance Policy Context

Source: — Authors: – Opinion/Readers’ Letters
April 1, 2019.   Michael Robinson

“The national economic interest” is not to be considered by the prosecution in deciding whether a prosecutor may negotiate a remediation (deferred prosecution) agreement. What does “the national economic interest” mean?

It’s a technical but critical legal issue. Donald Johnston was head of the OECD when it drafted the anti-corruption convention, which contains the prohibition that is repeated in the Canadian legislation implementing deferred prosecution agreements.

Mr. Johnson recently wrote that the origin of the phrase “had nothing to do with protecting jobs.” Rather, said he, it “was intended to prevent exporters … from avoiding prosecution … by arguing that exports were in the national economic interest – and that bribery was therefore required to protect their export markets.”

Absent a definition of the phrase, Mr. Johnston’s interpretation should apply under statutory interpretation law, being the expression of the drafter’s intention.

There are also nine factors which the prosecution must consider. But what of the purposes of the remediation sections added to our Criminal Code? There are six, one being: “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 who did …”

With the meaning of the prohibition sorted, the way seems clear for the current Attorney-General to direct the prosecution to negotiate a remediation agreement with SNC-Lavalin, giving public reasons.

This would also make transparent the mystery heretofore unspoken and unknown: Why not?

Michael Robinson, lawyer, Toronto

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