Sunday, January 24, 2021

SNC-Lavalin opts for trial by judge on bribery, fraud charges

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SNC-Lavalin Group Inc. has chosen a trial by judge alone as the Canadian engineering giant prepares to defend itself on charges of bribery and fraud amid a shakeup of its corporate strategy in the months ahead.

Lawyers for Montreal-based SNC-Lavalin told a Quebec court during a brief hearing on Friday morning that the company is electing to have its case heard by a judge alone and not a jury, a spokeswoman for the engineering firm confirmed. The company is not required to give a reason for its decision.

“It would be very difficult to find a jury that is not already in some way biased” given the intense public attention on the company this year, said Alan Sarhan, a lawyer with DLA Piper Canada who has worked on several high-profile international corruption cases.

“Let’s be honest. In the court of public opinion – that’s the jury – they’re losers right now. Whether they merit that or not is a whole other discussion,” Mr. Sarhan said. “[The prevailing view is] it’s an evil company that deserves to pay the price.”

The RCMP charged SNC-Lavalin and two of its business units in 2015 under the Corruption of Foreign Public Officials Act for allegedly paying $48-million in bribes to officials tied to the regime of the late Moammar Gadhafi to influence decisions that would benefit the firm. Police also accuse the company of defrauding various Libyan organizations of roughly $130-million.

The case is now headed to trial after a judge ruled last month there was enough evidence to proceed. SNC-Lavalin has said it will plead not guilty.

Ian Edwards, who replaced Neil Bruce as SNC-Lavalin chief executive earlier this month, is under pressure from stakeholders to deliver a blueprint for substantive change at the beleaguered company after a series of legal and operational setbacks have crushed its stock price and darkened its future. SNC-Lavalin directors have handed him a mandate to quickly develop a new strategy that lowers risk and simplifies the business model.

Strain on SNC-Lavalin has mounted on several fronts since last October, when the company announced it would not be invited by federal prosecutors to negotiate a deal to settle the bribery and fraud charges. SNC-Lavalin was thrust into the national spotlight after its effort to win a settlement, called a deferred prosecution agreement (DPA), hit a wall and spiralled into a political crisis for the Trudeau government.

Accusations that officials in the Prime Minister’s Office had put pressure on then-attorney-general Jody Wilson-Raybould to order a deal for the company led to the resignation of the country’s highest-ranking bureaucrat and of Prime Minister Justin Trudeau’s principal secretary. Ms. Wilson-Raybould’s successor, David Lametti, said last month a DPA was still “a legal possibility,” referring to the power of the attorney-general to issue a directive to settle the charges out of court.

SNC-Lavalin executives have lamented that the company is still under a legal cloud given that the charges involve events that happened more than seven years ago and executives who are no longer with the company. Several of SNC-Lavalin’s rivals, in the United States in particular, have settled similar crises without going through lengthy and resource-sapping trials, Mr. Bruce told The Globe and Mail in an interview in March.

“We want to put this behind us,” Mr. Bruce said. “No other place in the world would you be under this cloud for seven years.”

Legal experts are speculating that SNC-Lavalin could evoke the time it has taken for its case to come to trial in making a motion to stay the charges. Some 51 months have elapsed since the RCMP laid charges against the company in February of 2015 and some 35 months have elapsed since the Supreme Court of Canada made its Jordan ruling in July of 2016, a decision that gives defendants the right to a criminal trial within a reasonable time.

Under the new limits set by the Supreme Court, indictable offences cases such as that of SNC-Lavalin must be completed within 30 months from the moment charges are laid. Prosecutors have remedies to argue that the delays are justified, for things such as unforeseen events or complex cases. Judges have some discretion in applying the Jordan principle or not.

“The delay is probably going to be an issue that has to be decided before the trial actually gets under way,” said Toronto-based lawyer Bruce McMeekin, a specialist in corporate regulatory liability. An unreasonable delay can be decided only by a trial court, he said.

The next court date for SNC-Lavalin is Sept. 20.

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