Saturday, March 30, 2019

SNC Lavalin - They are all wrong. They are all right.

The SNC-Lavalin affair, distilled into a nugget, involves the Prime Minister of Canada, and his close political and bureaucratic allies, pressuring the Attorney General to institute a Deferred Prosecution Agreement (DPA) against SNC-Lavalin for bribery, rather than prosecuting this Canada-based but global engineering giant. This would mean large fines and supervision for years, to try to prevent the corruption from recurring, but minimal impact on day-to-day operations of the company. Prosecution, on the other hand, could result in  one of Canada's largest companies being banned from working in Canada for years, and could see it move its headquarters, and its best jobs, to another country. Since it is based in Quebec this would have enormous negative political consequences for the Liberal party.

Canada didn't used to have DPAs, they were created for SNC-Lavalin and the Prime Minister clearly wanted one used to prevent damage to the Liberal brand in Canada.

Jody Wilson-Raybould decided to stick with the prosecution despite immense pressure from the Prime Minister's Office.

The normal instinct of people when faced with a crime in theory is to want to vigorously punish the perpetrators. This instinct doesn't work. Centuries of the death penalty did not eliminate the crimes that were punished in this way. And when it is time to use the legal system that was developed in theory, in practice we get unintended consequences such as much larger fractions of the poor and of cultural and racial minorities in jail (maybe this is partly intentional). Or, with corporate crime, we are faced with destroying a company on principle, when the damage to the punishers will be great, and all it will mean is that American and European companies, that have governments that somehow manage to not put their companies out of business when they do bad things, will fill the void.

Trudeau was right to recognize the damage caused by prosecution of a corporation, to thousands of workers who did nothing wrong. Ironically, it was politicians like him who created the laws on prosecution which, in theory, seemed harsh enough to prevent corporate crime. Jody Wilson-Raybould was right to say that SNC-Lavalin did not qualify for a DPA.

So, what is the magic solution? Well, it seems quite simple to me: Prosecute the executives, throw them in jail, fine the company, and let new people take the helm. SNC-Lavalin will easily survive having to bring in a new management team (and if it doesn't, it has much bigger problems).

Why don't western countries prosecute executives for corporate crimes? There probably are lots of legal arguments, but I'm going to guess that the major reason is that the elites in any country are all friends, and prosecuting the executives of a major corporation based in that country, means prosecuting the friends of the elites that run the political parties that have power. Trudeau will have socialized with the leaders of SNC-Lavalin, Bombardier and other powerful Canadian corporations, and will not want to see his friends in jail.  Especially as they are also generous donors to the Liberal party.