Deferred prosecution agreements—or DPAs—are much in the news these days thanks to now former Attorney General Jody Wilson-Raybould’s momentous resignation from the federal cabinet.
DPAs are a corporate get-out-of-jail-free card or, more precisely, an avoid-jail-and-pay-a-fine-instead card. They became a reality in Canada last year after being slipped into a 500-page federal omnibus budget bill and later passed into law.
As Canadians now know, the DPA option seemed tailor-made for SNC-Lavalin, the Montreal-based multinational that faces federal criminal prosecution over alleged payment of $48 million in bribes to Libyan officials.
The government’s calculus appeared to be that with DPAs in place, the federal prosecution service could abandon criminal proceedings and take the soft glove approach instead. The trouble was, federal prosecutors rejected entering a DPA with SNC-Lavalin. Wilson-Raybould refused repeated entreaties by her cabinet colleagues and senior political staff to intervene. She was demoted to Minister of Veteran Affairs and later resigned.
If any good comes from the ongoing controversy it may be in realizing this: The SNC-Lavalin affair is part of a much broader story where corporate malfeasance can be swept under the rug.
Corporations are rarely charged for breaking the rules.
Corporations are rarely charged for breaking the rules. And when they do face consequences for their actions, the penalties are often so laughably low they engender further bad behaviour.
Consider these corporate environmental infractions in Beautiful British Columbia.
Load Em Up Contracting Ltd., a company licensed in BC to haul hazardous wastes, was penalized in 2015 for “knowingly submitting false information” about the wastes it transported.
The penalty? A paltry $575 fine that represented the only time since 2006 (when digitized records became publicly available) that any waste handler was penalized under BC’s Hazardous Waste Regulations.
In 2015, Synergy Land Services Ltd. submitted falsified documents to the provincial Oil and Gas Commission (OGC). Geographical locations and the stated work to be done were changed without the knowledge of the professional archaeologist whose signature appeared on the documents. Despite assertions that it treated such actions “very seriously,” the OGC let Synergy off with a warning. A $500,000 fine could have been imposed.
In 2018, the OGC discovered that pipeline builder Transmountain Pipeline Corporation violated BC’s Water Sustainability Act not once but four times. The company improperly reported water that it was using and it laid down meshed plastic mats in streams, preventing fish from spawning. The company was fined $230 for each violation of the Act, for a total fine of $920. It was the equivalent of a motorist getting slapped on the wrist for speeding.
In July and September 2018, the Ministry of Forests, Lands, Natural Resource Operations and Rural Development sent enforcement officers to inspect 49 large dugouts and dams near the community of Dawson Creek. The region is prone to droughts and is home to some of the most intense natural gas industry fracking operations in BC.
The inspection blitz followed media reports generated by Freedom of Information (FOI) requests made by the Canadian Centre for Policy Alternatives. The FOI documents revealed how natural gas companies built as many as 91 dams on Crown and private lands, typically without first obtaining required permits and licenses. The dams were all built to capture freshwater used in fracking operations. Just four “violation tickets” were issued—totaling $960—even though offences under the Water Sustainability Act carry fines of up to $1 million.
The list goes on. But perhaps the most egregious example of all involves two of those 91 unlicensed dams. Both were built by Progress Energy Canada Ltd., a subsidiary of Malaysian state-owned Petronas.
FOI documents revealed how companies built as many as 91 dams without first obtaining required permits and licenses.
The two dams in question qualified as “major projects” under BC’s Environmental Assessment Act. One was as tall as a seven-storey building and was later found to have serious design flaws that could have caused the dam to collapse.
Progress was legally required to submit its plans to the Environmental Assessment Office (EAO) before building the dams. It didn’t. Other dams built by the company also violated provincial water laws and dam safety regulations.
The matter was referred to provincial Crown counsel in June 2018. Under the Environmental Assessment Act criminal proceedings must be launched within three years of an infraction first coming to light. Since the EAO learned of the two major unauthorized dams in summer 2016, very few months remained before Crown counsel would lose options to prosecute.
Two litmus tests for deciding whether to initiate criminal proceedings are whether a prosecution is in the public interest and whether the prosecution has a reasonable chance of succeeding. That Progress built the dams without referring them to the EAO first is undisputed. That doing so carried potential environmental and public health and safety risks is not in doubt either. What is in doubt is whether there was the political will to do anything about it.
As the Jody Wilson-Raybould affair so vividly underscores, there’s the public interest and then there’s the political interest. When political and corporate interests dovetail, it’s the public interest that is all too often sacrificed.
This article first appeared in The Province newspaper on March 31.