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Canada might be internationally obligated to invite JWR back to the Justice Committee

In a Monday morning statement, the OECD (Organisation for Economic Co-operation and Development) released a statement acknowledging the Canadian SNC-Lavalin scandal.
Mika Ryu Montreal, QC

In a Monday morning statement, the OECD (Organisation for Economic Co-operation and Development) released a statement acknowledging the Canadian SNC-Lavalin scandal.

It very diplomatically reminds Canada that it is a party to the “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions“, a convention whose name almost sounds like it was written specifically to prevent companies like SNC-Lavalin from bribing sons of dictators.

The crimes alleged against SNC-Lavalin include bribing a certain Gaddafi with $30,000 of Canadian prostitution services.

Mainstream news sources point to the OECD’s citing of investigations by the Ethics Commissioner and the Justice Committee as signs that the OECD is not hugely concerned about Canada breaking the agreement. But the very existence of the statement suggests otherwise.

It might be better interpreted as a threat, albeit one that was better “veiled” than those lobbed at former Attorney General Jody Wilson-Raybould.

The OECD statement reads in part:

“The OECD Working Group, which brings together the 44 Parties to the Anti-Bribery Convention, 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 appropriate interpretation is that the OECD may not realize that the alleged offences are likely beyond the scope of the Ethics Commissioner.

Another fair assumption is that of the OECD Working Group decides that the government, through its majority on the Justice Committee, has not allowed for an adequate investigation, Canada might be found in violation of the agreement. It is not clear what consequences would follow.

It is also probably fair to say that if Attorney General David Lametti still offered SNC-Lavalin a DPA at this point, that would violate the agreement.

International obligations and national sovereignty

Following the brief and shallow public debate on the UN Compact on Migration and the effect it would have on the erosion of national sovereignty, proponents of the agreement were quick to point out that it was not legally binding.

But as Daniel Bordman pointed out, these international agreements must be read on its own text, as they are often properly codified into each signatory country’s own domestic legal system. The conclusion here should not be that international agreements are bad, but that they signal countries’ intentions to each other. Populations of those countries are well within reason to express opposition, even to simple declarations, that are signed by the government on the international stage.

Not convinced? Just take a look at part of the Anti-Bribery Convention and think about where you might have seen this wording elsewhere:

The OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

If you guessed that it was in our own Criminal Code, as amended by the omnibus legislation that added deferred prosecution, making specific reference to the Corruption of Foreign Public Officials Act, which was the very act that the Chretien government passed in direct response to the OECD Anti-Bribery Convention, then you guessed correctly:

Section 715.32(3) of the Criminal Code

Prosecutorial independence

Legal decisions are correctly separated from political ones in societies that are governed by the rule of law. Legal decisions are left to public officials that have the capacity to do such things as ensure compliance with domestic law and international obligations.

The Director of Public Prosecutions did that, and determined that SNC-Lavalin could not be offered a Deferred Prosecution Agreement. Attempting to interfere with that decision, while ignoring all the good reasons not to, may have put Canada offside with the international agreements that the Liberals have claimed to treasure so dearly.

If Justin wants to keep the OECD from even further exposing his hypocrisy, he better hope that the Justice Committee’s investigation is to their liking.

Editor’s Note: A list of signatory states to the Anti-Bribery Convention mentioned in this article can be found here.

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Mika Ryu
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