In SNC-Lavalin Group Inc. v Canada (Public Prosecution Service), 2019 FC 282 (CanLII) the Federal Court found that a decision not to offer an invitation to negotiate a remediation agreement falls under the ambit of prosecutorial discretion and is not subject to judicial review.1
Background
SNC-Lavalin Group Inc. as charged with fraud pursuant to s. 380(1) of the Criminal Code, and bribing a foreign official pursuant to paragraph 3(1)(b) of the Corruption of Foreign Officials Act. The Director of Public Prosecutions was prosecuting both charges.
A remediation agreement, also known as a deferred prosecution agreement, is an alternative to a traditional prosecution and is defined in s. 715.3(1) of the Code as “an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement.” Section 715.32 of the Code sets out the conditions that must be met in order for the prosecutor to enter into negotiation of a remediation agreement.
The DPP sent a letter to SNC declining to offer SNC an invitation to negotiate a remediation agreement with respect to the charges. SNC then brought an application for judicial review of this decision, arguing that the decision to extend an invitation to negotiate a remediation agreement is an administrative decision which is subject to judicial review because the decision must be made with regard to several factors as set out in s. 715.32 of the Code. The DPP brought a motion to strike the application arguing that the decision to offer a remediation agreement is an exercise of prosecutorial discretion and not subject to judicial review, except if there is an abuse of process.
Federal Court decision
The court concluded that a decision made in the exercise of prosecutorial discretion is not subject to judicial review. The court noted that the exercise of prosecutorial discretion is quasi-judicial and this independence is essential to the criminal justice system because it allows prosecutors to fulfil their professional obligations without fear of either judicial or political interference. The court noted that it would be problematic to import administrative law principles into the criminal justice system because it would “open the floodgates to the review of countless decisions which are considered to fall within prosecutorial discretion and that this would result in the paralysis of the criminal process.” The court concluded that the jurisprudence is clear that prosecutorial discretion is defined broadly and is not subject to review by the court.
Next, the court found that the DPP’s decision was an exercise of prosecutorial discretion. The Court examined the wording of s. 715.32 of the Code and noted the language regarding the prosecutor’s decision as to whether to enter into a remediation agreement is permissive and clearly preserves the prosecutor's discretion.
The court also noted that the decision is analogous to other decisions which were found by the courts to be within the ambit of prosecutorial discretion, such as the decision to prosecute a charge or stay a proceeding, or the decision to pursue an alternative measure. The court concluded that the “consideration of the public interest and the specific factors to guide the public interest does not transform section 715.32 into an administrative decision.”
Finally, the court found that the DPP’s decision was an exercise of prosecutorial discretion and that the DPP is not a “federal board, commission or other tribunal” under s. 2 of the Federal Courts Act. Specifically, the court found that “the source of prosecutorial discretion is derived from the common law and the constitution” and consequently, the court concluded that it did not have jurisdiction to review the decision.
As a result, the court found the application had no reasonable prospect of success and struck the application for judicial review without leave to amend.
Takeaways
This decision confirms that prosecutorial discretion will be interpreted broadly and will not be subject to judicial review, except where there has been an abuse of process.
Christopher Wirth is a partner and Alana Spira is an articling student with Keel Cottrelle LLP
End Note
- An appeal of the decision was filed with the Federal Court of Appeal on April 4, 2019.