AG David Lametti could be SNC-Lavalin's last hope to avoid prosecution

If the corruption and fraud case againstSNC-Lavalinproceeds to trial, thenDavid Lametti may be the only person in Canada who can save the Montreal-based engineering firmfrom criminal prosecution.

As attorney general,Lamettihas the power to decide whetherthe company should be able to accessadeferred prosecution agreement (DPA), which would stay those criminalproceedings.

And after losing its bid on Fridayfor a judicial review of the Director of Public Prosecution's decision to proceed with criminal prosecution of the company on corruption charges instead of agreeing to aDPA, the company's attention will now focuson Lametti.

Theissue of SNC-Lavalin and a DPAis at the centre of the current Liberal government political scandal. Lametti'spredecessorJodyWilson-Raybould said that when she was attorney general, she had closed the book on that option, refusing to overruleDirector of Public Prosecutions KathleenRoussel's decision thata DPA wouldn't be appropriate in SNC-Lavalin's case.

Lametti still considering options

However Lametti, despite the ongoing controversy, has indicatedhehasn't ruled out that option.But he also hasn't indicated when a decision may come, orwhether he is opento reconsiderthe case,something that had been suggested toWilson-Raybouldby officials in the PMO.

On Friday, federal Judge Catherine Kane ruled against SNC-Lavalin's bid to seeka DPA and avoid criminal proceedings, writingthat"prosecutorialdiscretionis not subject to judicialreview, except for abuse of power."

SNC-Lavalinfaces charges of fraud and corruption in connection with millions of dollars of payments made to Libyan government officials between 2001 and 2011. The case is currentlyin the preliminary hearing stage. A judge is expected to rule soon onwhether it should proceed to trial.

If that were to happen, the only path to avoid prosecution would be throughLametti, who as attorney general oversees the director of public prosecutions.Hecan issue directiveson any specific prosecution, meaning he could direct federal prosecutors to negotiate a deferred prosecution agreement.

These agreements allow companies accused of certain economic offences such asbribery, fraud andcorruptionto be spared criminal charges.Instead, they cancould admit wrongdoing and pay a financial penalty.

Concern over jobs

In the case of SNC-Lavalin, which employs nearly 9,000 Canadians across the country, the concern has been that a successful criminal prosecution against the company could lead to it being banned from bidding on federal contracts for 10 years. Thatcould cost manyjobs anddamagetheeconomy, particularly in Quebec.

It's not knownwhyRousselturned downSNC-Lavalin'srequest for a DPA. A letter to the company only said that after a "detailed review of all the material submitted," it was determined that a "remediation agreement is not appropriate in this case."

There are a number of factors that Lametti might consider when deciding whether SNC-Lavalin qualifiesforaDPA. Those include:

• The nature and gravity of the actand its impact on any victim.
• Whether the company has taken disciplinary action.
• Whether the organization has made reparations.

During her testimony at the Commons justice committee, which is probing the SNC-Lavalin scandal, Wilson-Raybouldsaid, despiteher decision, and after insisting that the file was closed,she waspressured inappropriately by senior government officials, including Prime Minister Justin Trudeau, to intervene in thecase.

'Fresh eyes'

Trudeauhas denied any inappropriatepressure. He also said that it's his belief that when it comes making a decision on aDPA, that can be taken by the attorneygeneralup until the very last minute of atrial.

Trudeau's former principal secretary Gerald Butts, in his testimony before the justice committee, said according to the briefings he had received,the attorney general was obligated to bring"fresheyes" every time new evidence arose, up until a verdict on the case is rendered.

Craig Martin Scott, a York University law professor, agreed thatthere is nothing to preclude the attorney general from intervening at any point, up until the verdict.But it may be impractical for the new attorney general, or any attorney general, to keepabreast of a case forthat period of time, he said.

"To say that the AGhas the same kind of active duty to constantly be keeping in mind a file in order to determine [dothey] intervene with the prosecutors, that just doesn't follow.

"No system can work with the AGconstantly being on watch over multiple files as to whether they're going to intervene."

Suggestions by Trudeau and Buttsthat the file remains openjust invited the kind of pressure alleged by Wilson-Raybould, he said.

"It means that people can keep taking a run at the AG behind thescenesthroughthe government cabinet structure. So it just does not make policy sense and it makes doesn't make practical sense to say the AGhas the same continual duty to continually keep in mind the case as the prosecutors."

'Almost condescending'

Butts also testified that senior governmentofficialsraisedthe idea with Wilson-Raybouldtoseek external legal advice on the matter,suggestingseeking out someone like former Supreme CourtJusticeBeverley McLaughlin.

"What exactly did they think they were going to do?" said Scott. "Get some kind of namedjurist to come in and tutor the AGand her legal team?That felt really almost condescending."

University of British Columbia assistant professor AndrewMartin, who specializes in legal ethics, said that was just a way of the government saying: "I'm going to bug you, until you say what I want."

"The only reason to suggest to get an outside opinionis that she's wrong."

Richard Leblanc, professor of governance, law and ethics at York University, told CBC's Salimah Shivji, thatthe government should stop emphasizing potential job losses as a reason for a DPA, and insteadfocus on how SNC-Lavalin has changed.

"That obsession with the jobs argument is not the path forward. The path forward is to focus on the reforms that have been undertaken and focus on that as opposed to partisan interests."