I would like to directly address these comments Mr. Butt stated today that I enumerate.
1-The deferred prosecution has been badly mischaracterized as a get-out-of-jail-free card, instead of a way for companies to make amends while protecting innocent workers, shareholders and pensioners from being harmed.
This is a misleading statement by Butt. This is not about “companies”, it is about SNC Lavalin specifically and it is crucial everyone understand the issue is not about deferred prosecution agreements or whether they can be used, it is about what criteria should be considered if using one in this specific case, and whether the specific elements of the crime and the history of the company requesting it make it a reasonable proposition to consider.
The deferred prosecution agreement as a possible alternative to plea bargaining or traditional criminal sentencing after a trial was passed into law on September 19, 2018. This law refers to it by the name “remediation agreement”. It can be considered with companies who engaged in “economic” crimes. If allowed it would suspend ongoing or outstanding criminal proceedings. It then would require the company to complete specified undertakings to avoid facing criminal charges and an actual criminal trial. Those undertakings are described as fines, remediation measures, enhanced reporting requirements and allowing independent 3rd party audits and reviews of the company’s compliance procedures.
The theory behind it is to encourage voluntary disclosure of misconduct by corporations for having committed criminal activities that probably would have otherwise not been detected by regulators. Its also supposed to hold an organization accountable for bad behaviour and to deter it from doing this kind of behaviour again.
The previous remediation agreement discussions in 2017 were general and never specific to Lavalin and its situation. When this was passed it was not done with NO open discussion but at the last second inserted in an Omnibus bill to prevent discussion of it. One must therefore ask, if it was business as usual, why did the Minister of Justice in a government Trudeau claimed would be open and transparent and never hide things in omnibus bills do just that and not introduce it and discuss it in Parliament and why was it not discussed on the floor if it was genuine and the Liberals had nothing to hide? Why did they even keep it secret from their own MP’s on the Legal Committee before they passed it?
What this amendment says is that to be eligible (not entitled, its not automatic entitlement, you must show cause why you are entitled) for a remediation agreement, the accused can not be a public body, trade union or municipality. It is also limited to consideration for economic offences, i.e., bribery or fraud, not for crimes of death or bodily injury or would violate the Canadian Competition Act.
For this kind of agreement to be considered BEFORE the prosecutor can enter into negotiations as to the specific conditions of the agreement as it pertains to the specific elements of the case, these conditions must first be met:
1-there is a reasonable prospect of conviction with respect to the offence (appears to apply in this specific Lavalin situation);
2-the conduct in question caused no “serious bodily harm or death or injury to national defence or national security”, and was NOT committed for “the benefit of, at the direction of, or in association with a criminal organization or terrorist group; (Lavalin is not considered a criminal organization at this time or a terrorist group, it did bribe as part of its conduct, Mummar Ghadafi who was said to cause serious bodily harm or death or injury to national defence or national security, by killing in his own country thousands of persons who opposed his view, funded terrorist organizations including the bombing of a passenger jet over Scotland and whose groups killed thousands in Chad, Niger, Dahomey, Malawi, Mali, Central African Republic, to name but a few countries);
3-negotiating the agreement must be “in the public interest and appropriate in the circumstances” (the question remains does the fact that people might but not necessarily lose their jobs if Lavalin was convicted (there is zero proof of that) over-ride the the public interest to be protected from the criminal activities of Lavalin as well one has to question whether the circumstances were appropriate for these reasons:
i-The accused lobbied the government 80 times for the DPA-why was someone with a direct vested interest in a specific dpa and part of an on-going criminal proceeding allowed to do this?
ii-The Prime Minister openly stated his concern for intervening and pushing for the DPA was on behalf of the constituents of his riding who might lose jobs-in so admitting this which was again repeated and confirmed by Mr. Butt today, they both acknowledged they knew they had a conflict of interest and it was inappropriate the PM and PMO have anything to do with any discussions as to the DPA because of that conflict; the conflict, was the interest attached to whether the persons in Trudeau’s riding could lose their job versus the need to protect all Canadians from crime and not undermine the neutrality of the court system and have it appear to take into consideration partisan or political concerns as criteria for its implementation.
4. The AG must consent to the negotiation agreement. Ms. Raybould said she made it clear she was against it. Mr. Butt today in effect called her a liar and said he never knew she was against it and yet testimony now shows the Privy Council head and Deputy Justice Minister both knew she was against it and the Privy Council head had told Trudeau this, so how is it Butt did not know? How could he possibly not know Trudeau knew she was against it? Further if Butt did not know she was against it why would he and Trudeau ask for a second opinion? They clearly knew because if they did not know they would have had no need to ask for a second opinion. According to Ms. Raybould the second opinion was told to her to be a political device she could use to cover her own butt if there was controversy over using it. In fact the Privy Council said the same thing as did another PMO official who all said if she was worried about it, get a second opinion. How would they know she was not against it if they thought she was so worried she needed a second opinion?
5. Prosecutors must also consider the circumstances in which the offence was brought to their attention and the attention of their investigative authorities. In this case it means, Lavalin did NOT come to the government voluntarily, they ONLY started asking for one once they were told they would be charged. This kinds of agreements contemplate a remorseful criminal taking initiative before they are told they will be prosecuted.
Next and this is where most lawyers not just the former AG would not have been comfortable considering a dpa in this case and that is because she would also have to consider:
a-the nature and gravity of this offence (and this includes whether this was a one time offence or part of a pattern of behaviour that keeps repeating) as well as the impact on victims-lets be clear, employees of Lavalin would not constitute victims-victims are people who directly not indirectly were the target of the crime which in this case was and remains Lavalin shareholders, not its employees as well as the public at large. In the case of Lavalin shareholders, the directors and officers knowing the company would be charged, sold their shares of the company before the government announced it would proceed with criminal proceedings meaning they used their insider knowledge to sell their stocks before the values dropped. On the day in late 2015 when it was announced Lavalin would be charged its directors and officers had sold all their shares but the average shareholder not having that insider trading saw their stocks drop in value 15-30 percent as a result of the announcement. They now have sued these officers and directors and the case (shareholder rights action) is still pending and would be directly prejudiced if Lavalin were able to avoid a criminal sentence and so for that reason alone the timing of the request for a dpa is WRONG as it can not be done to prejudice the outcome of any outstanding cases attached to it directly or indirectly;
b-the degree of involvement of senior officers of the organization must be considered which means, if it was just one individual, then the DPA makes sense, but the more wide spread the degree of involvement of senior officers, the less appropriate it becomes-certainly the insider trading done by the senior officers shows wide-spread corruption and a lack of ethics that a DPA would not be appropriate for to try address, its tailored for isolated cases pf behaviour not such advanced and wide spread corruption where something more severe needs to be done;
c- whether Lavalin took disciplinary action including termination of any persons involved-the answer here is a loud NO they have not;
d-whether Lavalin has made reparations or taken measures to remedy the behaviour that led to the charges-again the answer is a loud NO they have not;
e-whether Lavalin has identified or expressed a willingness to identify any person involved in the wrongdoings-again the answer is a loud NO they have not.
f-whether the organization — or any of its representatives was either:
i-convicted of an offence or sanctioned by a regulatory body;
ii- entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar conduct;
ii-had any of its or any of its representatives alleged to have committed any other offences.
Isn’t it interesting Mr. Butt, Trudeau, the Privy Council head did not know any of the above had to be considered by the AG. They would have you believe they had no idea.
This would mean Trudeau, Butt, the Privy Council head would have you believe they were not aware of the following public record with Lavalin which would because of the above make a dpa inappropriate:
A-the McGiLL University Health Centre Scandal; in 2010, SNC-Lavalin was part of the consortium that won the $1.3 billion contract to design and build the Montreal University Health Centre's Glen Site, and maintain it until 2044- the contract eventually became the subject of a criminal investigation, and CEO Pierre Huhaime, Executive VP Riadh Ben Aissa and VP Steven Roy were all charged with bribery; Duhaime was forced out in 2012 after an audit found disturbing deficiencies and he was then arrested for making secret payments to sell company as a bribe to get the conrract. He pled guilty Feb.1, 2012 to assisting a public civil servant commit breach of trust. He was let off of 14 other charges. Aissa was charged in 2014 with 16 counts including fraud for 22.5 milion worth of contracts in that same deal and plead guilty to one charge of using a forged document. Roy also was arrested in 2014 but acquitted;
B-Bangladesh Scandal; pursuant to an RCMP raid in September of 2012 in regards to a Padma bridge project in Bangladesh at the request of the World Bank’s anti-graft (anti bribery) unit, this led to the World Bank banning SNC-Lavalin in April of 2013 from being able to bid on any of its projects for 10 years for bribing officials in Bangladesh and Cambodia. As a result of this investigation employees disclosed a secret accounting code used to bribe people across Africa and Asia to get projects. Kevin Wallace, who was the Senior Vice President of SNC-Lavalin International Inc., Ramesh Shah and Mohammad Ismail, SNC-Lavalin employees, Bangladeshi lobbyist Abul Hasan Chowdhury and Zulfiquar Ali Bhuiyan, a Canadian citizen with business ties in Bangladesh were all charged with bribery. Wallace, Shah and Bhuiyan were acquitted in Feb. 2017 after an Ontario Superior Court justice threw out wiretap evidence against them. Ismail and Ismail and Chowdhury were acquitted as well;
C-Libya Scandal; Lavalin had been doing business in Libya for years, then in November 2011, shortly after the fall of Moammar Gadhafi, a consultant hired by SNC-Lavalin was arrested in Mexico, accused of trying to smuggle smuggle Gadhafi's son and other family members out of Libya and into Mexico. That individual Cyndy Vanier spent 18 months in a Mexican jail before being released. She always said her contract with SNC-Lavalin was to help facilitate the travel of SNC employees in and out of Libya. She was never charged in Canada. However in February of 2015, the RCMP charged SNC-Lavalin and two of its subsidiaries with corruption and fraud in connection with many years of dealings by the company in Libya. To be specific bribing of Libyan officials for construction contracts between 2001 and 2011.
In fact bribery scandals and allegations with Lavalin in and outside Canada date back to 1995 and have been continuous inside and outside Canada. So how with such a lengthy history of questionable behaviour would anyone consider a dpa-how would the the pattern of behaviour alone NOT cause any prosecutor to deem a dpa or for that matter plea bargain inappropriate given the repetitive nature of these bribery allegations?
5. All the above said, to qualify for eligibility for a DPA under this new law, Lavalin would also need to accept responsibility for its wrong doings, stop them, accept full responsibility for a history of bribery dating back to 1995 and here is where it gets absurd because they can’t and won’t do it, to qualify for the DPA pay back all money they earned from projects where bribery is involved, AND nput in an actual compliance program requiring every bid they make to be reviewed by an independent third party.
Lavalin can not and will not do that so any discussion of the DPA as being simple and done other places is nonsense. In fact it was only used in the US last year 40 times and that should tell you how narrow an application it has when its used. Very few cases qualify for it and keep in mind individuals in the US not just companies can use it and not just with economic crimes.
2-The Canadian government moved ahead with the option to fall in line with the law in other countries like the United States and Britain, he said.
What Butt did not say was a dpa has never been used in the US or Britain for such a type of case or as a result of a criminal lobbying the government of the day to directly pressure the prosecutor to use the dpa. It's never happened in the UK or Britain so his statement is misleading.
3- Butt repeated several times invoking the fact he was from Cape Breton to state his sole concern was potential loss of jobs and this loss of jobs is a legitimate public policy concern to discuss.
No it was not. Under his dpa law his government passed, potential loss of jobs is NOT a criteria layed out as a legitimate consideration to add to s.718 of the Criminal Code when considering a criminal sentence. As well Mr. Butt would have you believe this was the only consideration he was concerned with when discussing the DPA being used and had no idea of the content of the DPA law passed and what it said needed to be considered. BULL SHIT. Mr. Butt’s job, his very function is to get Trudeau re-elected. He would have you believe he never discussed his major concern was not the loss of jobs, but the back lash a loss of jobs could cost in terms of political support in Quebec. He would have you believe the job loss concern is not attached to the concern it would lose votes for Trudeau. He would have you believe he had no idea his Prime Minister and himself had a direct conflict of interest which should have prevented them from having any conversation about the issue with the AG. He would have you believe you are so stupid and he is so stupid he did not consider this conflict of interest. He would also have you believe you he is so stupid and oblivious to what’s going on around him, he had no idea JWR rejected the dpa and while the Privy Council and Trudeau knew this and the Deputy Justice Minister knew this even though he spoke to Trudeau constantly, he was never told this by Trudeau. BULL SHIT.
4-Ms. Raybould never told me she felt pressured… I only met with her twice.
Mr. Butt in saying the above would have you believe he is an idiot. If he met her only twice then how would he no if she felt pressured? More to the point, how would he know that not just him but no one else knew she felt pressured because when he testified he posed his answer to say NO ONE knew she felt pressured or had rejected the DPA not just him. Interestingly he claimed at most he met with her twice and his office only met with her twice a month so how could she feel pressured and it was news to him. So he would have you believe after 80 meetings with Lavalin and himself and the PM, Ms. Raybould didn't know about all these meetings and when the Privy Head told her Trudeau was about to blow up and everyone was worried about the fall out, she would not feel pressured. Then he would have you believe when he asked for a SECOND opinion well hey it wasn't a second opinion since she had none yet and its normal to tell someone to get another opinion its not to second guess any other opinion-she was so stupid and retarded she needed to have another lawyer explain to her what a dpa was, what her role was as the AG, what she could and could not consider because its a new thing. Yes indeed. A former Crown Prosecutor would have no idea what it is when considering whether a criminal trial should proceed and need a former Supreme Court Judge to tell her. This is for those of you who are not lawyers, telling a lawyer they would need to speak to another lawyer to tell them whether murder means killing someone. That is how stupid a comment it is.
Also interestingly, when asked for his notes of their conversations this man who keeps meticulous notes has none, couldn't remember his conversations and hey its just a coincidence but also today the Liberals announced they will not allow access to his records or allow Raybould to reappear to address the conversations they had Butt brought up for the first time today. That again coming from a PM who claims to be transparent and open but has deliberately prevented this alleged inquiry from asking vital questions and considering vital evidence. Quite the transparency.
In summary the problem with Butt’s narrative narrative in addition to the above was:
a-he was silent on the issue of whether it is appropriate a subject of an on-going criminal investigation s be able to lobby the government under ANY circumstance;
b-why the dpa was slipped in at the last second in an Omnibus bill and the Liberals now refuse to let Raybould address allegations Butt made for the first time about her, and will not allow her or him to disclose the memos of their conversations or others had with Raybould when this is a government Trudeau loudly boasted would be ethical and transparent politician allowing no one special favours when he ran for office;
c-how Mr. Butt is so stupid he had no idea offering JWR the Ministry of Indian Affairs would be an insult to her;
d-Mr. Butt believes Canadians are so stupid that they would believe JWR was removed not because of her stand on Lavalin, but ONLY because as he said when they moved Philpott to Treasury they magically had to move her to Indian Affairs and then went oh gee that won’t work so we won't leave her and move someone else, we will move her to Veteran Affairs…no other reason. No one else could handle Veteran Affairs but her. They didn't have one other candidate to fill that Ministry and wait, being shuffled from Justice to Veterans Affairs would not be considered a demotion-again that is like saying you remove someone from being a surgeon to a gp but they wouldn't consider it a demotion let alone he's so stupid he could not anticipate that kind of reaction not just with the Indian Ministry but the Veteran Affairs position;
e-how far does Trudeau want to push this script of idiocy and pose his partisan considerations being placed before the country's best needs as acceptable and righteous?
Where do we go with this man now that he has established we should not sentence any criminal if that sentence could impact negatively on his being re-elected?
What the testimony did today is make things worse. It admitted this government is stupid, incompetent, and then tried to use that as an excuse for its behaviour. It would have you believe it is not capable of understanding what a conflict of interest is or pressure or undue influence and its all innocent normal day to day stuff that goes on.
This strategy necessarily will divide the Liberal party further. What it also shows is Trudeau had no problem putting the alleged considerations of his riding before any other Canadians. Is that a Prime Minister anyone wants? Is that leadership or abandonment of leadership? How do you lead when you tell the majority of the country they are expendable because you are more concerned with your own riding than the rest of them? How is that leadership?
How is it the PM let alone his toady Mr. Butt could not identify the conflicts of interest let alone believe there was more than one public interest to consider other than the one they became obsessed over?
Did anyone here any remorse in Butt? Did you hear even an iota of regret in what he said? He played himself as just a guy putting political considerations of his leader above the rest of the nation as if it was acceptable. Then he called Raybould a liar after saying he would not question her integrity by saying she only raised all her concerns and got upset AFTER she was removed from her office. He would have you believe she is a liar and made the whole thing up in a temper tantrum. That is what he rested his entire testimony on. That was as sleeze bag as it gets and it shows you what level of insults and character and personal attacks he will engage in to avoid taking responsibility for what he did.