OECD anti-bribery officials ‘concerned’ by SNC-Lavalin affair, plan to ‘closely monitor’ case

The ongoing controversy over allegations of attempted political interference by Prime Minister Justin Trudeau and his senior officials in the case of SNC-Lavalin have anti-bribery officials from the Organisation for Economic Co-operation and Development “concerned.”

And the anti-bribery officials there warned on Monday they have sent a letter to Canadian authorities noting they will be following the case closely.

“The OECD Working Group on Bribery is concerned by recent allegations of interference in the prosecution of SNC-Lavalin that are subject to proceedings in the House of Commons Standing Committee on Justice and Human Rights,” said the OECD in a statement.

“As a Party to the Anti-Bribery Convention, Canada is fully committed to complying with the Convention, which requires prosecutorial independence in foreign bribery cases pursuant to Article 5. In addition, political factors such as a country’s national economic interest and the identity of the alleged perpetrators must not influence foreign bribery investigations and prosecutions.”

The statement continued, noting OECD anti-bribery officials “will closely monitor Canada’s updates, and has also sent a letter to the Canadian authorities confirming its concerns and next steps in this matter.”

The warning from the organization puts Trudeau and his Liberals on notice that the world is watching their handling of the matter.

“Canada firmly supports the rules-based international order and the multilateral institutions that underpin it.,” said Adam Austen, press secretary for Foreign Affairs Minister Chrystia Freeland, noting Canada is a founding party to the OECD’s Anti-Bribery Convention.

“We acknowledge the concerns raised today by the OECD Working Group on Bribery. We will continue to work with and update the Working Group on the robust and independent domestic processes currently underway in Canada, which the Working Group has recognized and encouraged.”

An official said the government was aware the issue was being discussed by anti-bribery officials at the OECD.

The statement, they said, did not come as a surprise when it was released Monday morning.

Already, two Liberal cabinet members have resigned over the allegations originally reported by the Globe and Mail on Feb. 7 that Trudeau and his officials tried to pressure former attorney general Jody Wilson-Raybould to intervene in the Montreal engineering giant’s criminal case to save it from trial and a potential conviction.

One of those resignations from cabinet was Wilson-Raybould herself on Feb. 12.

Jane Philpott, former president of the Treasury Board, resigned from cabinet on March 4, saying she had “lost confidence” in the government’s handling of the allegations.

Trudeau, however, has so far insisted none of the discussions he and top officials have admitted to having with Wilson-Raybould between September and December 2018 were “inappropriate,” and maintained they were entirely focused on protecting jobs he says could be at risk.

However, neither he nor his officials have provided any evidence of that.

Members of the House of Commons justice committee, which is holding meetings with witnesses involved in the matter, have asked repeatedly for evidence that job losses would result if SNC-Lavalin did not get a deal to help it escape criminal trial.

Known as remediation or deferred prosecution agreements, such deals were introduced by the Liberals last year following heavy lobbying by SNC-Lavalin, and allow a firm to admit wrongdoing and pay a fine rather than face potential conviction.

In SNC-Lavalin’s case, conviction of the corruption and fraud charges it faces would result in a 10-year ban on bidding for government contracts.

Privy Council Clerk Michael Wernick did note, however, that officials believed the “tanking” share prices of SNC-Lavalin after it announced it had not been invited to negotiate such a deal constituted “new facts” that warranted officials continuing to pressure Wilson-Raybould to re-examine her decision not to intervene.

As part of his testimony, Wernick pushed back at claims that the government cannot consider the “national economic interest” in deciding whether to pursue a deferred prosecution agreement.

The legislation creating such deals as a legal option in Canada states that prosecutors cannot consider that when deciding whether to offer a deal.

“If the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, 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.”

SNC-Lavalin is facing one charge under the Corruption of Foreign Public Officials Act for allegedly bribing Libyan officials to get contracts.

The decision of a prosecutor can be overruled by the attorney general, which is what Wilson-Raybould says she refused to do. Even if an attorney general decides to intervene and negotiate a deal, it is a judge who then has the final say and would need to sign off on it if they agree the terms required are met.

The term “national economic interest” is not defined in the legislation, however.

Wernick told the House of Commons justice committee that the Canadian inclusion of the phrase is “cut and paste” from the OECD’s Anti-Bribery Convention, which also does not contain any definition of the term.

“Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party,” reads the convention. “They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Wernick argued the phrase does not mean potential job losses or company share prices cannot be considered.

Rather, he said he believes it means “if you’re part of this group in the OECD, you cannot favour or let a company off because it helps France versus Germany, or Germany versus Italy, or Canada versus the United States.”

The OECD statement, though, specifically highlighted the provision banning consideration of the national economic interest in flagging its concerns about the SNC-Lavalin affair.

Global News has contacted the OECD requesting clarification on how exactly they define the term.

Ethics Commissioner Mario Dion launched an investigation last month but his office has declined to confirm whether that remains ongoing.

The House of Commons justice committee has also been holding meetings with witnesses involved in the allegations, including Wilson-Raybould, Wernick, and Gerald Butts, former principal secretary to Trudeau.

Liberal members of the committee have so far blocked an attempt by opposition members to invite Wilson-Raybould back to the committee to answer questions raised by the testimony by Butts as well as Wernick, who testified for the second time last week in response to her testimony in the previous week.

A meeting to further discuss calling her to reappear is expected to take place this week.

Global News | March 11, 2019

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