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Top prosecutor defends independence and decision to prosecute SNC-Lavalin

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OTTAWA — Canada’s top public prosecutor is staunchly defending her prosecution of Quebec engineering giant SNC-Lavalin on corruption charges, saying her office must remain independent from political interference and judicial supervision.

As a political storm rages over whether the Prime Minister’s Office pressured former attorney-general Jody Wilson-Raybould to cut SNC-Lavalin some slack, a judicial battle to force the Crown’s hand is also unfolding.

SNC-Lavalin Group Inc. and two of its subsidiaries have pleaded not guilty to two criminal charges connected to bribes allegedly paid between 2001 and 2011 to the Libyan regime of Moammar Gadhafi: bribing a foreign public official and fraud.
SNC-Lavalin Group Inc. and two of its subsidiaries have pleaded not guilty to two criminal charges connected to bribes allegedly paid between 2001 and 2011 to the Libyan regime of Moammar Gadhafi: bribing a foreign public official and fraud.  (Paul Chiasson / THE CANADIAN PRESS FILE PHOTO)

The company wants the Federal Court to order Kathleen Roussel, the director of public prosecutions and deputy attorney general, to issue “an invitation to negotiate” a mediation deal — one that would spare it from a trial that could lead to a potentially business-killing corporate criminal conviction.

But Roussel is resisting the high-profile effort to change her mind about prosecuting the Quebec company.

In Federal Court documents obtained by the Star, Roussel responds to SNC-Lavalin, saying that it has no legal right or entitlement to any deal; that prosecutors are independent with broad discretion on how to proceed with charges; and that under the Constitution, prosecutors are free from political or judicial interference.

SNC-Lavalin Group Inc. and two of its subsidiaries have pleaded not guilty to two criminal charges connected to bribes allegedly paid between 2001 and 2011 to the Libyan regime of Moammar Gadhafi: bribing a foreign public official and fraud.

It says any wrongdoing was carried out by two former employees without the company’s knowledge or consent.

Read more:

Liberals to block opposition attempt to probe SNC-Lavalin affair

Jody Wilson-Raybould maintains silence on SNC-Lavalin allegations

Here’s your primer on the SNC-Lavalin drama in Canadian politics

The company enlisted legal heavyweight and former Supreme Court of Canada justice Frank Iacobucci of the Torys law firm, along with fellow Torys litigator William McNamara to overturn Roussel’s decision to prosecute the company.

In an Oct. 9 letter to Iacobucci and McNamara, Roussel rejected the company’s written pleas and request for an in-person meeting with them and SNC-Lavalin CEO Neil Bruce, saying a remediation agreement “is not appropriate in this case.”

She does not say why in the letter, a copy of which is in the court record.

SNC-Lavalin then went to Federal Court seeking judicial review of her decision.

The company says Roussel is required by law to consider the public interest in a mediated settlement that would spare it a conviction.

It argues Roussel did not provide the company any reasons for her refusal, which it called unreasonable, “incoherent,” and threatening the livelihoods of many thousands of employees, customers and pensioners who did not engage in wrongdoing.

That’s because if found guilty, the company would be barred from bidding on government contracts for a decade.

SNC-Lavalin essentially argues it is too big to fail.

It has launched an all-out effort, lobbying the Trudeau government, Opposition leader Andrew Scheer, and others to plead its case, and now wants a Federal Court judge to weigh in.

But in her reply, Roussel tackles the issue head-on.

She says the law passed last year allowing for what is called “deferred prosecution agreements” (a new regime that was stuffed into an omnibus budget bill) is explicit about what factors prosecutors must not consider in corruption cases:

The director of public prosecutions and deputy attorney general Kathleen Roussel is resisting efforts to change her mind about prosecuting the Quebec company.
The director of public prosecutions and deputy attorney general Kathleen Roussel is resisting efforts to change her mind about prosecuting the Quebec company.  (Sebastien Lavallee file photo)

“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” where an organization is charged under the Corruption of Foreign Public Officials Act, as in SNC-Lavalin’s case.

In other words, the the director of public prosecutions is arguing that, while the law sets out other criteria Roussel could consider when weighing the public interest, she’s not allowed by law to consider whether a company is too big to fail.

The company, on the other hand, says it has complied with all the law’s prerequisites for entering into negotiations that could see it pay a heavy fine but avoid a criminal conviction:

It says it has overhauled its ethics and corporate governance regime, under the guidance of independent monitors. It has had a “complete turn-over of the SNC-Lavalin’s senior management and board of directors.”

It says it has fired “senior officers who could be considered as having been even remotely associated with the activities in question,” instituted anti-corruption training of its employees and made “permanent transformative changes” to its business practices.

It says the RCMP has levied criminal charges against only one individual regarding the same allegations, who SNC-Lavalin says left the company seven years ago. The company says it has sued that employee civilly for “a massive related embezzlement.”

Roussel rejected the company's written pleas and request for an in-person meeting with them and SNC-Lavalin CEO Neil Bruce, pictured, in an Oct. 9 letter.
Roussel rejected the company’s written pleas and request for an in-person meeting with them and SNC-Lavalin CEO Neil Bruce, pictured, in an Oct. 9 letter.  (Graham Hughes/THE CANADIAN PRESS file photo)

And it refers to the “extremely negative,” “unfair” and “dramatic consequences” on the company and its employees if it were eventually convicted and subsequently forbidden from bidding on contracts, especially in a business environment where its unnamed competitors “can and have availed themselves of deferred prosecution agreements in other jurisdictions.”

SNC-Lavalin notes the alternative to a negotiated agreement (that it says could allow the Crown to directly monitor the company for a “reasonable period”) is “a long, expensive and contentious criminal proceeding” whose outcome is uncertain for both sides.

But Roussel is unswayed.

In a written arguments on her behalf, she says a court may only intervene where there is evidence of “egregious” misconduct by Crown attorneys that amounts to an abuse of process.

Otherwise, she says, it is not up to the court to second-guess whether the decisions made everyday across the country by prosecutors are reasonable because it could lead to “paralysis” of the system.

The written brief also takes a strong stand against any political interference in prosecutorial decisions, saying it “could erode the integrity of our system of prosecution.”

Allegations of political interference made for blockbuster headlines recently when the Globe and Mail reported that former attorney-general Wilson-Raybould was shuffled out of her job after she refused pressure by unnamed senior PMO officials to direct Roussel to cut a deal with SNC-Lavalin.

A political storm is raging over whether former attorney-general Jody Wilson-Raybould was pressured to cut SNC-Lavalin some slack.
A political storm is raging over whether former attorney-general Jody Wilson-Raybould was pressured to cut SNC-Lavalin some slack.  (Justin Tang/THE CANADIAN PRESS file photo)

Prime Minister Justin Trudeau denies anyone in his office “directed” Wilson-Raybould “to take any decision whatsoever.” Over the weekend, senior government officials have reportedly defended “robust” discussion on the matter, and denied any pressure was exerted on the former justice minister.

But Roussel makes clear her office must be immune from political pressure.

Her brief says the 2006 law that created her office explicitly states that the director of public prosecutions “is an independent organization, separate from the department of justice, and its objectives are to be carried out in a non-partisan manner.”

The director’s written brief filed by lawyers David Migicovsky and Andrew Lenz says although the attorney-general (formerly Wilson-Raybould, now David Lametti) has power to direct the director of public prosecutions, “in the exercise of these powers he (the attorney general) is not subject to direction by his ministerial colleagues or to control and supervision by the courts.”

Migicovsky said in an interview Sunday that SNC-Lavalin’s challenge of Roussel’s decision was heard by Federal Court judge Catherine Kane on Feb. 1 in Montreal. Kane has not yet rendered her decision.

The Star has not received answers to requests for comment sent to Roussel’s office, or from lawyers for SNC-Lavalin.

Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamacc

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‘Business as usual’ for Dorel Industries after terminating go-private deal

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MONTREAL — Dorel Industries Inc. says it will continue to pursue its business strategy going forward after terminating an agreement to go private after discussions with shareholders.

« Moving ahead. Business as usual, » a spokesman for the company said in an email on Monday.

A group led by Cerberus Capital Management had previously agreed to buy outstanding shares of Dorel for $16 apiece, except for shares owned by the family that controls the company’s multiple-voting shares.

But Dorel chief executive Martin Schwartz said the Montreal-based maker of car seats, strollers, bicycles and home furniture pulled the plug on a deal on the eve of Tuesday’s special meeting after reviewing votes from shareholders.

“Independent shareholders have clearly expressed their confidence in Dorel’s future and the greater potential for Dorel as a public entity, » he said in a news release.

Dorel’s board of directors, with Martin Schwartz, Alan Schwartz, Jeffrey Schwartz and Jeff Segel recused, unanimously approved the deal’s termination upon the recommendation of a special committee.

The transaction required approval by two-thirds of the votes cast, and more than 50 per cent of the votes cast by non-family shareholders.

Schwartz said enhancing shareholder value remains a top priority while it stays focused on growing its brands, which include Schwinn and Mongoose bikes, Safety 1st-brand car seats and DHP Furniture.

Dorel said the move to end the go-private deal was mutual, despite the funds’ increased purchase price offer earlier this year.

It said there is no break fee applicable in this case.

Montreal-based investment firm Letko, Brosseau & Associates Inc. and San Diego’s Brandes Investment Partners LP, which together control more than 19 per cent of Dorel’s outstanding class B subordinate shares voiced their opposition to the amended offer, which was increased from the initial Nov. 2 offer of $14.50 per share.

« We believe that several minority shareholders shared our opinion, » said Letko vice-president Stephane Lebrun, during a phone interview.

« We are confident of the long-term potential of the company and we have confidence in the managers in place.”

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Anglais

Pandemic funds helping Montreal businesses build for a better tomorrow

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Many entrepreneurs have had to tap into government loans during the pandemic, at first just to survive, but now some are using the money to better prepare their businesses for the post-COVID future.

One of those businesses is Del Friscos, a popular family restaurant in Dollard-des-Ormeaux that, like many Montreal-area restaurants, has had to adapt from a sit-down establishment to one that takes orders online for takeout or delivery.

“It was hard going from totally in-house seating,” said Del Friscos co-owner Terry Konstas. “We didn’t have an in-house delivery system, which we quickly added. There were so many of our employees that were laid off that wanted to work so we adapted to a delivery system and added platforms like Uber and DoorDash.”

Helping them through the transition were emergency grants and low-interest loans from the federal and provincial governments, some of which are directly administered by PME MTL, a non-profit business-development organization established to assist the island’s small and medium-sized businesses.

Konstas said he had never even heard of PME MTL until a customer told him about them and when he got in touch, he discovered there were many government programs available to help his business get through the downturn and build for the future. “They’ve been very helpful right from day one,” said Konstas.

“We used some of the funds to catch up on our suppliers and our rents, the part that wasn’t covered from the federal side, and we used some of it for our new virtual concepts,” he said, referring to a virtual kitchen model which the restaurant has since adopted.

The virtual kitchen lets them create completely different menu items from the casual American Italian dishes that Del Friscos is known for and market them under different restaurant brand names. Under the Prasinó Soup & Salad banner, they sell healthy Greek options and their Stallone’s Sub Shop brand offers hearty sandwiches, yet the food from both is created in the same Del Friscos kitchen.

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Anglais

Downtown Montreal office, retail vacancies continue to rise

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Some of downtown Montreal’s key economic indicators are heading in the wrong direction.

Office and retail vacancies in the city’s central core continued to climb in the fourth quarter of 2020, according to a quarterly report released Thursday by the Urban Development Institute of Quebec and the Montréal Centre-Ville merchants association. The report, whose first edition was published in October, aims to paint a socio-economic picture of the downtown area.

The survey also found office space available for sublet had increased during the fourth quarter, which may foreshadow even more vacancies when leases expire. On the residential front, condo sales fell as new listings soared — a sign that the downtown area may be losing some of its appeal to homeowners.

“It’s impossible not to be preoccupied by the rapid increase in office vacancies,” Jean-Marc Fournier, the former Quebec politician who now heads the UDI, said Thursday in an interview.

Still, with COVID-19 vaccinations set to accelerate in the coming months, “the economic picture is bound to improve,” he said. “People will start returning downtown. It’s much too early to say the office market is going to disappear.”

Public health measures implemented since the start of the pandemic almost a year ago — such as caps on office capacity — have deprived downtown Montreal of more than 500,000 workers and students. A mere 4,163 university and CEGEP students attended in-person classes in the second quarter, the most recent period for which figures are available. Border closures and travel restrictions have also brought tourism to a standstill, hurting hotels and thousands of local businesses.

Seventy per cent of downtown workers carried out their professional activities at home more than three days a week during the fourth quarter, the report said, citing an online survey of 1,000 Montreal-area residents conducted last month.

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