On September 19, 2018, amendments to the Criminal Code came into force establishing Deferred Prosecution Agreements (DPAs), for the first time in Canada. They had at that time escaped the radar, slipped into an omnibus bill, labeled “remediation agreements.” DPAs have been described as a type of plea bargain for corporations facing potential criminal prosecution, though admittedly on a much larger scale than exists for individuals.
Others point out that a DPA is not a plea bargain at all, but rather a “get out of jail free” (or practically free) card.
A DPA essentially suspends outstanding charges and establishes certain undertakings that the organization must fulfill in order to avoid facing the pending criminal charges. These might include fines, remediation measures, reporting requirements or third-party oversight of its compliance measures. Once the accused corporation has fulfilled the terms of the DPA, the charges are dropped.
Fast forward to earlier this week, when Canada’s federal Minister of Veterans Affairs Ms. Jody Wilson-Raybould tendered her letter of resignation to leave the federal cabinet.
Prior to last month’s cabinet shuffle, she was the Minister of Justice and Attorney General of Canada. In the beginning, she was championed as the first Indigenous Canadian to fill that role. All the better that she was a female, too. She is also a British Columbian.
Ms. Wilson-Raybould presided over many important initiatives within the federal Department of Justice, including medical assistance in dying, changes to federal family law, and a number of important amendments to the Criminal Code.
By all accounts, she is bright, hardworking and principled.
It was reported that she may have been less than pleased about being moved out of the Ministry of Justice portfolio.
Before her resignation was made public, the Union of B.C. Indian Chiefs published an open letter criticizing recent reports that characterized her as being difficult to get along with, self-centred and untrustworthy, based on accounts from Liberal insiders who were not identified.
These characterizations perpetuate “sexist stereotypes that Indigenous women cannot be powerful, forthright, and steadfast in positions of power, but rather confrontational, meddling and egotistic,” the Union of B.C. Indian Chiefs said in a statement.
It is alleged that someone may have pressured the former Minister of Justice to instruct prosecutors to enter a DPA with SNC-Lavalin.
A DPA would avoid putting SNC-Lavalin on trial relating to bribery and fraud charges regarding its construction contracts in Libya.
Before the federal Director of Public Prosecutions makes a decision on whether to move forward with a DPA, consultations occur with the Minister of Justice. The Minister may consult with others and receive advice.
Earlier this week, Professor Mendes, a law professor at the University of Ottawa, expressed concern that DPAs may incentivize corruption, and should only be used for first time offences.
The new federal Minister of Justice hails from Quebec.
Quebec just so happens to be the home of SNC-Lavalin.
Some are asking whether the new federal Minister of Justice will oversee the entry into a DPA with SNC-Lavalin.
Meanwhile, Ms. Wilson-Raybould has retained a former justice of the Supreme Court of Canada, who is now practicing law, to advise her on “topics that I am legally permitted to discuss on this matter.”
Why would a former Minister of Justice seek advice on what to say?
As she has stated, she is bound by solicitor-client privilege.
Solicitor-client privilege is essentially a principle of law which protects certain communications between a lawyer and the client from being disclosed. It applies only to those communications between lawyer and client that relate to giving or receiving legal advice. It does not apply for example to business advice, or other types of advice that are do not constitute legal advice.
Solicitor-client privilege is that of the client. This means it is the client who is able to waive it.
The client is presumably the federal government, as opposed to cabinet or individuals. The Prime Minister, as head of the government, could waive privilege. This is exactly what the opposition has been calling on him to do. Doing so would allow Ms. Wilson-Raybould to speak more freely.
It has been reported that in response to calls for him to waive privilege, the Prime Minister said he consulted with the new Minister of Justice about that. He stated “there’s a real danger, and it’s been flagged for me, of unintended consequences, particularly because there are two court cases ongoing directly related to this matter that could be impacted by such a decision we might make.”
What “unintended consequences” might he be referring to? Could it be the possibility that if he waived privilege to allow Ms. Wilson-Raybould to speak, the details of communications about DPAs would also become admissible in the legal proceedings relating to SNC-Lavalin?
There is no doubt that for our federal government, this is shaping up to be a very sticky situation indeed, with no easy or clear way out.
Canadians deserve to know what was going on.
Perhaps others who are covering this story will determine to what extent the opposition supported the DPA amendments to the Criminal Code. This may provide interesting context as we listen to the opposition, who could potentially have a lot to say about all of this.
Meanwhile it will likely take some time to sort out just what our former federal Minister of Justice is permitted to say. Until then at least, mum’s the word.
This is a modified version of an article that is to appear in the Kelowna Daily Courier on February 15, 2019, the Capital News on or about February 17, 2019, and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org. Check out our website, www.inspirelaw.ca.