SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service)

SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service)
Court (s) Database
Federal Court Decisions
Date
2019-03-08
Neutral citation
2019 FC 282
File numbers
T-1843-18
Notes
A correction was made on March 11, 2019.
Reported Decision
Decision Content
Date: 20190308
Docket: T-1843-18
Citation: 2019 FC 282
Ottawa, Ontario, March 8, 2019
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
SNC-LAVALIN GROUP INC., SNC-LAVALIN INTERNATIONAL INC. AND SNC-LAVALIN CONSTRUCTION INC.
Applicants
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ORDER AND REASONS
[1] The Respondent brings this motion pursuant to Rule 359 of the Federal Courts Rules, SOR/98-106, seeking an Order to strike the Applicants’ Application for Judicial Review [Application] without leave to amend.
[2] The Application at issue involves a determination made by the Director of Public Prosecutions [DPP] in the context of the DPP’s prosecution of the Applicants on charges pursuant to the Criminal Code, RSC 1985, c C-46 [Criminal Code] and the Corruption of Foreign Officials Act, SC 1998, c 34 [Corruption of Foreign Officials Act]. The decision for which the Applicants seek judicial review is the DPP’s determination not to offer (or invite) the Applicants to engage in negotiating a remediation agreement, in accordance with section 715.32 of the Criminal Code.
[3] Part XXII.1 of the Criminal Code (sections 715.3-715.4) governs remediation agreements, which are also referred to, particularly in other jurisdictions, as deferred prosecution agreements. A remediation agreement would be an alternative to pursuing the criminal prosecution and possible conviction of an organization accused of a criminal offence. The provisions were enacted as part of the Budget Implementation Act, 2018, No 1, SC 2018, c 12 [BIA 2018] and were proclaimed into force on September 21, 2018.
[4] The Respondent, the moving party on this motion, argues, among other things, that the DPP’s determination not to invite the Applicants to enter into negotiations for a remediation agreement is purely an exercise of prosecutorial discretion in the context of a criminal proceeding. The Respondent submits that the law is clear; prosecutorial discretion is not subject to judicial review, except where there is an abuse of process. The Respondent adds that the prosecutor’s discretion is derived from the common law and not from a federal statute, and as a result, the DPP is not a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], and this Court does not have jurisdiction to review the DPP’s decision in any event. As such, the Application has no chance of success and should be struck.
[5] The Applicants respond that the DPP’s decision is an administrative decision based on administrative law principles and is, therefore, subject to judicial review. On this motion, the Applicants argue that the DPP’s decision bears the hallmarks of an administrative decision. They submit that the decision differs from other decisions that a prosecutor may make regarding the conduct of a prosecution, which would be within their prosecutorial discretion, because the decision to invite an organization to enter into negotiations is made while the prosecution continues and requires the prosecutor to consider a series of factors set out in section 715.32, which if satisfied requires the invitation to be made.
[6] The Applicants allege in their Notice of Application for Judicial Review that the DPP unlawfully exercised her discretion in refusing to invite the Applicants to enter into negotiations for a remediation agreement. The Applicants assert that they met all the conditions and criteria set out in the relevant Criminal Code provisions to permit the negotiation of such an agreement and that there was no reason for the DPP not to invite the Applicants to enter into negotiations for a remediation agreement.
[7] The issue on this motion is whether the Application for Judicial Review of the DPP’s decision not to invite the Applicants to enter into negotiations for a remediation agreement should be struck or should proceed. This depends on whether the Application has a reasonable prospect of success. In the present circumstances, this requires the Court to first determine whether the DPP’s decision is an exercise of prosecutorial discretion, which is not subject to judicial review except where there is an abuse of process, or whether the DPP’s decision is an administrative decision and, if so, whether it is subject to judicial review by this Court.
[8] For the reasons that follow, I find that the Application shall be struck as it has no reasonable prospect of success in the context of the law and the governing jurisprudence and taking a realistic view. The well-crafted arguments of the Applicants have been carefully considered, as the reasons below will demonstrate. However, the law is clear that prosecutorial discretion is not subject to judicial review, except for abuse of process. The decision at issue—whether to invite an organization to enter into negotiations for a remediation agreement—clearly falls within the ambit of prosecutorial discretion and the nature of decisions that prosecutors are regularly called to make in criminal proceedings. The jurisprudence provides many examples of decisions found to be squarely within the prosecutor’s discretion and the decision at issue is analogous. The other issues raised in this motion follow from the finding that the decision is one of prosecutorial discretion.
I. The Background
A. The Applicants and the charges
[9] The Applicants describe SNC-Lavalin as a global fully integrated professional services and project management company. SNC-Lavalin employs over 50,000 employees around the world, including many in Canada, who provide, among other things, capital investment, consulting, design, engineering, construction management and operations and maintenance services to clients in the oil and gas, mining and metallurgy, infrastructure, clean power, and nuclear energy sectors, as well as engineering design and project management.
[10] The Applicants were charged in February 2015 with two offences; pursuant to paragraph 3(1)(b) of the Corruption of Foreign Officials Act, with bribing a foreign public official and pursuant to subsection 380(1) of the Criminal Code, with fraud. The offences relate to conduct occurring between 2001 and 2011. The DPP is prosecuting both charges. The preliminary inquiry began in the Superior Court of Quebec in October 2018 and was expected to resume in February 2019 (with a view to being completed at that time). Subject to the outcome of the preliminary inquiry, the trial is expected to proceed later in 2019 or in 2020.
B. The Development of the Remediation Agreement Regime
[11] The Government engaged in a public consultation process in November and December 2017 to seek the input of interested stakeholders regarding the advantages, disadvantages and other implications of a Canadian model for deferred prosecution agreements. Amendments to the Criminal Code were introduced in March 2018 as part of the BIA 2018. The BIA 2018 was passed on June 21, 2018 and the Criminal Code amendments, now contained in Part XXII.1, were proclaimed in force on September 21, 2018.
C. The Applicants’ Provision of Information
[12] The Applicants note that they made overtures to the DPP regarding their interest in and suitability for a remediation agreement based on the proposed legislation as early as April 2018. The Applicants provided extensive information to the DPP regarding how they met the relevant criteria. The Applicants continued to make submissions to the DPP following the enactment of Part XXII.1, including following receipt of an indication from the DPP on September 4, 2018 that she would not invite the Applicants to negotiate a remediation agreement.
[13] The Applicants note that they provided an extensive amount of information by way of letters and meetings to demonstrate how their actions reflected the objectives and criteria for a remediation agreement. This included information about efforts made since 2012 to implement, monitor and independently evaluate an ethics and compliance program; anti-corruption training for all employees; the turn-over of senior management and the Board of Directors; the dismissal or severance of senior officers associated with the questionable activities; and the serious impact of a continuing prosecution, a lengthy trial and the possible conviction on employees, pensioners, and other stakeholders, including that SNC-Lavalin could be barred from bidding on contracts. The Applicants also note that they advised the DPP of their willingness to provide further information, if they were invited to negotiate a remediation agreement, regarding how they would meet the objectives of a remediation agreement, for example, through the negotiations of reparations to victims, proportionate penalties and measures to denounce the alleged wrongdoing. The information was provided on the understanding that it was confidential and protected by privilege. The Applicants submit that this evidence should be considered on the Application for Judicial Review.
D. The Remediation Agreement Regime
[14] Part XXII.1 of the Criminal Code is a complete regime for the determination of whether to engage in negotiations for a remediation agreement and, if negotiations are pursued and an agreement is reached, for the approval, conditions, enforcement and consequences, including for non-compliance with the remediation agreement, among other details.
[15] The Applicants and the Respondent describe the provisions in a similar manner, although they differ in how certain provisions should be interpreted and whether the initial decision of the prosecutor to invite an organization to enter into negotiations is an administrative decision or an exercise of prosecutorial discretion. The parties note that remediation agreement regimes have existed in other jurisdictions under other names, such as a deferred prosecution agreement.
[16] In a nutshell, a remediation agreement is a voluntary agreement between a prosecutor and an organization accused of certain economic crimes. It is an alternative to the traditional prosecution of criminal offences against an organization. It is premised on the prosecutor being of the opinion that there is a reasonable prospect of conviction and on the organization accepting responsibility for the alleged conduct, among other conditions. It is defined in subsection 715.3(1) 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.(accord de réparation)”
[17] The purpose of a remediation agreement and the conditions for inviting an organization to enter into negotiations for a remediation agreement are set out at sections 715.31 - 715.32. The purpose, as described in section 715.31, includes denouncing wrongdoing, holding organizations accountable and reducing the negative consequences of the wrongdoing on other persons, including employees, who were not responsible.
[18] Section 715.32 sets out the conditions for a prosecutor to enter into negotiations for a remediation agreement, including that the prosecutor is of the opinion that there is a reasonable prospect of conviction and that negotiating the remediation agreement is in the public interest and appropriate. A non-exhaustive list of factors is set out for the prosecutor to consider with respect to the public interest and appropriateness of negotiating the agreement.
[19] Section 715.33 addresses the contents of an offer to negotiate and how the information shared is used and protected. Section 715.34 lists the elements of the remediation agreement, including what must be specifically included and what may optionally be included. Section 715.36 requires that the prosecutor take reasonable steps to advise any victim that a remediation agreement may be entered into. Section 715.37 governs the approval by the Court (which means the Court of criminal jurisdiction in which the prosecution is proceeding) of any remediation agreement that has been negotiated and provides factors for the Court to consider in determining whether to approve the agreement. Where the agreement is approved, subsection 715.37(7) provides that the prosecutor must direct the clerk of the court to enter on the record that the proceedings are stayed. Sections 715.38 - 715.41 address other aspects of a remediation agreement, including variations of an agreement, termination of an agreement and the recommencement of proceedings where an agreement is not complied with. Of note, where the Court orders that the agreement has been complied with, the proceedings are deemed never to have been commenced. Section 715.42 requires the Court to publish a remediation agreement approved by the Court, and certain other orders, including an order to stay the proceedings, unless non-publication is necessary for the proper administration of justice.
[20] The key provisions at issue in this motion are set out below and Part XXII.1 is set out in its entirety at Appendix A.
715.31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:
715.31 La présente partie a pour objet de prévoir l’établissement d’un régime d’accords de réparation applicable à toute organisation à qui une infraction est imputée et visant les objectifs suivants :
(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;
a) dénoncer tout acte répréhensible de l’organisation et le tort causé par celui-ci aux victimes ou à la collectivité;
(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;
b) tenir l’organisation responsable de son acte répréhensible par l’imposition de pénalités efficaces, proportionnées et dissuasives;
(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;
c) favoriser le respect de la loi par l’obligation faite à l’organisation de mettre en place des mesures correctives ainsi qu’une culture de conformité;
(d) to encourage voluntary disclosure of the wrongdoing;
d) encourager la divulgation volontaire des actes répréhensibles;
(e) to provide reparations for harm done to victims or to the community; and
e) prévoir la réparation des torts causés aux victimes ou à la collectivité;
(f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.
f) réduire les conséquences négatives de l’acte répréhensible sur les personnes — employés, clients, retraités ou autres — qui ne s’y sont pas livrées, tout en tenant responsables celles qui s’y sont livrées.
715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
715.32 (1) Le poursuivant peut négocier un accord de réparation avec une organisation à qui une infraction est imputée, si les conditions suivantes sont réunies :
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
a) il est d’avis qu’il existe une perspective raisonnable de condamnation pour l’infraction;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused 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;
b) il est d’avis que l’acte ou l’omission à l’origine de l’infraction n’a pas causé et n’est pas susceptible d’avoir causé des lésions corporelles graves à une personne ou la mort, n’a pas porté et n’est pas susceptible d’avoir porté préjudice à la défense ou à la sécurité nationales et n’a pas été commis au profit ou sous la direction d’une organisation criminelle ou d’un groupe terroriste, ou en association avec l’un ou l’autre;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
c) il est d’avis qu’il convient de négocier un tel accord dans les circonstances et qu’il est dans l’intérêt public de le faire;
(d) the Attorney General has consented to the negotiation of the agreement.
d) le procureur général a donné son consentement à la négociation d’un tel accord.
(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors:
(2) Pour l’application de l’alinéa (1)c), le poursuivant prend en compte les facteurs suivants :
(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
a) les circonstances dans lesquelles l’acte ou l’omission à l’origine de l’infraction a été porté à l’attention des autorités chargées des enquêtes;
(b) the nature and gravity of the act or omission and its impact on any victim;
b) la nature et la gravité de l’acte ou de l’omission ainsi que ses conséquences sur les victimes;
(c) the degree of involvement of senior officers of the organization in the act or omission;
c) le degré de participation des cadres supérieurs de l’organisation à l’acte ou à l’omission;
(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
d) la question de savoir si l’organisation a pris des mesures disciplinaires à l’égard de toute personne qui a participé à l’acte ou à l’omission, parmi lesquelles son licenciement;
(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;
e) la question de savoir si l’organisation a pris des mesures pour réparer le tort causé par l’acte ou l’omission et pour empêcher que des actes ou omissions similaires ne se reproduisent;
(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
f) la question de savoir si l’organisation a identifié les personnes qui ont participé à tout acte répréhensible relatif à l’acte ou à l’omission ou a manifesté sa volonté de le faire;
(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;
g) la question de savoir si l’organisation ou tel de ses agents ont déjà été déclarés coupables d’une infraction ou ont déjà fait l’objet de pénalités imposées par un organisme de réglementation ou s’ils ont déjà conclu, au Canada ou ailleurs, des accords de réparation ou d’autres accords de règlement pour des actes ou omissions similaires;
(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and
h) la question de savoir si l’on reproche à l’organisation ou à tel de ses agents d’avoir perpétré toute autre infraction, notamment celles non visées à l’annexe de la présente partie;
(i) any other factor that the prosecutor considers relevant.
i) tout autre facteur qu’il juge pertinent.
(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
(3) Malgré l’alinéa (2)i), dans le cas où l’infraction imputée à l’organisation est une infraction visée aux articles 3 ou 4 de la Loi sur la corruption d’agents publics étrangers, le poursuivant ne doit pas prendre en compte les considérations d’intérêt économique national, les effets possibles sur les relations avec un État autre que le Canada ou l’identité des organisations ou individus en cause.
715.33 (1) If the prosecutor wishes to negotiate a remediation agreement, they must give the organization written notice of the offer to enter into negotiations and the notice must include
715.33 (1) S’il désire négocier un accord de réparation, le poursuivant avise l’organisation, par écrit, de son invitation à négocier. L’avis comporte les éléments suivants :
(a) a summary description of the offence to which the agreement would apply;
a) une description sommaire de toute infraction qui ferait l’objet de l’accord;
(b) an indication of the voluntary nature of the negotiation process;
b) une mention du caractère volontaire du processus de négociation;
(c) an indication of the legal effects of the agreement;
c) une mention des effets juridiques de l’accord;
(d) an indication that, by agreeing to the terms of this notice, the organization explicitly waives the inclusion of the negotiation period and the period during which the agreement is in force in any assessment of the reasonableness of the delay between the day on which the charge is laid and the end of trial;
d) une mention du fait qu’en acceptant les conditions de l’avis, l’organisation renonce explicitement à inclure la période de négociation et la période de validité de l’accord dans l’appréciation du caractère raisonnable du délai entre le dépôt des accusations et la conclusion du procès;
(e) an indication that negotiations must be carried out in good faith and that the organization must provide all information requested by the prosecutor that the organization is aware of or can obtain through reasonable efforts, including information enabling the identification of any person involved in the act or omission that forms the basis of the offence or any wrongdoing related to that act or omission;
e) une mention du fait que les négociations doivent être menées de bonne foi et que l’organisation doit fournir tous les renseignements exigés par le poursuivant dont elle a connaissance ou qui peuvent être obtenus par des efforts raisonnables de sa part, notamment ceux permettant d’identifier les personnes qui ont participé à l’acte ou à l’omission à l’origine de l’infraction ou à tout acte répréhensible relatif à l’acte ou à l’omission;
(f) an indication of how the information disclosed by the organization during the negotiations may be used, subject to subsection (2);
f) une mention de l’utilisation qui peut être faite des renseignements divulgués par l’organisation durant les négociations, sous réserve du paragraphe (2);
(g) a warning that knowingly making false or misleading statements or knowingly providing false or misleading information during the negotiations may lead to the recommencement of proceedings or prosecution for obstruction of justice;
g) une mise en garde portant que le fait de faire sciemment des déclarations fausses ou trompeuses ou de communiquer sciemment des renseignements faux ou trompeurs durant les négociations peut mener à une reprise des poursuites ou à des poursuites pour entrave à la justice;
(h) an indication that either party may withdraw from the negotiations by providing written notice to the other party;
h) une mention du fait que l’une ou l’autre des parties peut se retirer des négociations en donnant un avis écrit à l’autre;
(i) an indication that reasonable efforts must be made by both parties to identify any victim as soon as practicable; and
i) une mention du fait que les parties doivent, dès que possible, faire des efforts raisonnables pour identifier les victimes;
(j) a deadline to accept the offer to negotiate according to the terms of the notice.
j) la date d’échéance pour accepter l’invitation à négocier selon les conditions de l’avis.
(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization during the negotiations is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts or admission of responsibility referred to in paragraphs 715.34(1)(a) and (b), if the parties reach an agreement and it is approved by the court.
(2) Les aveux de culpabilité ou les déclarations par lesquels l’organisation se reconnaît responsable d’un acte ou d’une omission déterminés ne sont pas, lorsqu’elle les faits dans le cadre des négociations d’un accord de réparation, admissibles en preuve dans les actions civiles ou les poursuites pénales dirigées contre elle et relatives à cet acte ou à cette omission, sauf dans le cas où l’accord est conclu par les parties et approuvé par le tribunal et que ces aveux ou déclarations font partie d’une déclaration visée par les alinéas 715.34(1)a) ou b).
II. The Underlying Application for Judicial Review
A. The Decision at Issue
[21] The decision of the DPP is set out in a letter dated October 9, 2018, which indicates that the DPP had conducted a detailed review of the documents submitted by the Applicants, including the submissions made following the DPP’s previous indication, communicated on September 4, 2018, that it would not issue an invitation to negotiate a remediation agreement. The letter indicates that the DPP “continues to be of the view that an invitation to negotiate a remediation agreement is not appropriate in this case. Therefore no invitation to negotiate a remediation agreement will be issued and as a result crown counsel shall continue with the prosecution of this case in the normal course”.
B. The Applicants’ Notice of Application
[22] The Applicants seek judicial review of the DPP’s October 9, 2018 decision. The Applicants seek an Order to declare that the DPP’s decision not to issue an invitation to negotiate a remediation agreement is unlawful and to set it aside. The Applicants also seek an Order by way of mandamus to direct the DPP to issue an invitation and to negotiate a remediation agreement in good faith.
[23] In their Notice of Application, the Applicants acknowledge that whether to issue an invitation to negotiate a remediation agreement is a matter of discretion, but submit that this discretion is fettered and must be exercised reasonably and in accordance with the statutory objectives and factors.
[24] The Applicants, characterizing the decision as an administrative decision, allege that the DPP’s decision is unlawful because it is unreasonable on several grounds. The Applicants allege that the DPP did not weigh and consider the submissions and extensive information they provided in light of the objectives of a remediation agreement. The Applicants also allege that the DPP’s decision indicates only that the invitation to negotiate would not be appropriate in this case, rather than that it would not be “in the public interest and appropriate in the circumstances”, which suggests that the DPP had concluded that negotiating a remediation agreement was otherwise in the public interest. The Applicants further allege that the DPP does not provide reasons to justify her decision that negotiating a remediation agreement would not be appropriate.
III. The Respondent’s (the Moving Party) Overall Position
[25] The Respondent submits that this Application is bereft of any possibility of success for several reasons and should, therefore, be struck. The Respondent submits that the Applicants seek to compel the DPP to exercise her prosecutorial discretion to invite the Applicants to negotiate a remediation agreement with a view to having the criminal charges against them stayed.
[26] First, the Respondent submits that the determination of the DPP not to invite the Applicants to engage in negotiations for a remediation agreement is clearly an exercise of prosecutorial discretion just like many other determinations made in the course of conducting a prosecution. The determination is not based on administrative law principles.
[27] The Respondent submits that the law is well settled; prosecutorial discretion is not subject to judicial review by the Courts, except for abuse of process, which is not alleged by the Applicants.
[28] Second, the Respondent argues that this Court does not have the jurisdiction to determine this Application because the DPP is not a federal board, commission or tribunal within the meaning of section 2 of the Federal Courts Act. The Respondent submits that the prosecutorial discretion exercised by the DPP is derived from the common law, not from an Act of Parliament as required for this Court to have jurisdiction pursuant to section 2.
[29] Third, the Respondent submits that even if this Court has jurisdiction to determine the Application, it should decline to do so and defer to the jurisdiction of the Quebec Superior Court given its expertise in criminal law matters.
[30] Fourth, the Respondent argues that the relief sought by the Applicants in the Application cannot succeed. The test for mandamus is not met; the Court cannot compel the exercise of the prosecutor’s discretion in a particular way.
IV. The Applicants’ Overall Position
[31] The Applicants describe remediation agreements as an unprecedented and revolutionary change in the criminal law. The Applicants submit that the intention of Parliament in establishing the remediation agreement regime is to provide a way to secure all the elements of a conviction except for the finding of guilt, which reflects the statutory objective of holding organizations responsible for their wrongdoing while at the same time reducing the negative consequences on innocent stakeholders. The Applicants highlight the grave implications of a continuing prosecution and possible conviction, including being barred from bidding on future Government contracts, which will have a significant impact on their employees, pensioners and other stakeholders and on “innocent bystanders”.
[32] The Applicants point to the Debate in the Senate on the BIA 2018 that noted the benefits of remediation agreements, including reparations to victims, stimulating change in corporate culture and allowing companies to continue to operate, thereby sparing jobs and protecting investments.
[33] On this motion, the Applicants acknowledge that the exercise of prosecutorial discretion is not subject to judicial review. The Applicants argue that the DPP’s role with respect to offering or inviting an organization to negotiate a remediation agreement does not fall within the ambit of unfettered prosecutorial discretion. Rather, it is an administrative decision which is required to be made with regard to several factors. Therefore, the decision is reviewable for reasonableness and the Application should proceed.
[34] The Applicants submit that the DPP’s decision is not typical of other decisions that fall within prosecutorial discretion, including because the decision to invite negotiations for a remediation agreement is made in parallel to the ongoing criminal prosecution. The Applicants also submit that the interpretation of the statutory provisions in the context of the stated objectives and the intention of Parliament support finding that this is an administrative decision and that it is not immune from judicial review.
[35] The Applicants argue that the DPP’s decision should not be immune from judicial review, as this would thwart the goal of Parliament. Without judicial review there is no way to ensure that prosecutors have considered and applied the criteria and invited organizations to negotiate a remediation agreement where the criteria are met.
[36] The Applicants submit that this Court has jurisdiction to determine their Application because the DPP derives its authority from the Director of Public Prosecutions Act, SC 2006, c 9, s 121 [DPP Act] and the Criminal Code, which places the DPP within section 2 of the Federal Courts Act as a federal board or tribunal.
[37] The Applicants further submit that mandamus would be available to them on judicial review because the DPP had a duty to invite them to enter into negotiations once the conditions and criteria were satisfied.
[38] The Applicants argue that the Respondent’s motion to strike for the convenience of the Respondent to avoid defending the Application is “shocking”. The Applicants submit that their Application raises novel and complex legal issues, including whether the decision is an exercise of prosecutorial discretion or an administrative decision; the interpretation of Part XXII.1, in particular section 715.32; whether the DPP is a federal board for the purpose of section 2 of the Federal Courts Act (i.e., whether the Federal Court has the jurisdiction to review the DPP’s decision) which depends on the source of the DPP’s authority; whether the DPP should be immune from judicial review; and whether mandamus is available as a remedy. The Applicants submit that these issues demonstrate that it is, at least, debatable whether the Application has a reasonable prospect of success. As a result, the Respondent has not delivered the “knockout punch” to permit the Court to strike the Application. The Applicants argue that the Application should be determined by the applications judge with the full record, which is needed to interpret the statute and to determine whether the DPP acted reasonably—i.e., to determine what she did and did not consider.
V. The Issues
[39] The issue on this motion is whether the Application should be struck because it has no reasonable prospect of success. This requires consideration and application of the jurisprudence regarding motions to strike an application for judicial review. This also requires consideration of several related issues and arguments advanced by the parties, including:
Whether and how the exercise of prosecutorial discretion is subject to judicial review;
Whether the decision at issue—the DPP’s decision to not invite the Applicants to enter into negotiations for a remediation agreement—is an exercise of prosecutorial discretion or an administrative decision;
Whether, in the context of the decision at issue, the DPP is a “federal board, commission or other tribunal” within the meaning of section 2 of the Federal Courts Act;
Whether the Applicants can seek mandamus on judicial review; and
Whether the Application should proceed because it raises novel claims and debatable issues and, as a result, should not be found to have no reasonable prospect of success.
VI. The Test for Striking an Application for Judicial Review
A. The Respondent’s Submissions
[40] The Respondent submits that the Court can strike a notice of application where it fails to state a cognizable administrative law claim which may be brought to the Federal Court, or where the Federal Court is not able to deal with the claim under the Federal Courts Act or some legal principle, or cannot grant the relief.
[41] The Respondent submits that the high threshold to strike the Applicants’ Notice of Application is met. The legal principles regarding the exercise of prosecutorial discretion are well established; prosecutorial discretion is not subject to judicial review except in narrow circumstances which do not apply in this case.
[42] The Respondent acknowledges that novel legal issues should generally be allowed to develop, but argues that the issue is whether prosecutorial discretion can be judicially reviewed, which is not a novel issue.
[43] The Respondent submits that the fact that the DPP did not provide reasons for declining to invite the Applicants to enter into negotiations for a remediation agreement does not prevent the Court from striking the Notice of Application. The exercise of the prosecutor’s discretion does not need to be justified and reasons are not required (R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 at paras 54-55 [Anderson]).
[44] The Respondent notes that the Criminal Code includes many examples where a prosecutor exercises their discretion and there is no requirement for the prosecutor to justify each decision. Courts have recognised that such a requirement would bring the administration of justice to a standstill.
[45] The Respondent submits that the Applicants’ argument—that the Application should proceed on a complete record, which they have not yet obtained—overlooks that the obligation to produce a record is tied to what is relevant to the grounds pleaded in the Notice of Application. The Court must first gain a realistic appreciation of the grounds pleaded (Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at para 50, [2014] 2 FCR 557 [JP Morgan]).
B. The Applicants’ Submissions
[46] The Applicants argue that the DPP has failed to identify the “knockout punch” to justify striking out the Application at this preliminary stage. The Applicants argue that motions to strike are best left to the hearing of the Application except in the rarest of cases (Canada v Chiasson, 2003 FCA 155 para 6, [2003] FCJ No 477 (QL) [Chiasson]).
[47] The Applicants note that Courts have been cautioned against determining the interpretation and the application of a new law on preliminary motions (Cannon v Funds for Canada Foundation, 2012 ONSC 399, [2012] OJ No 168 (QL) at 234, 237 [Cannon]).
[48] The Applicants also rely on Paradis Honey Ltd v Canada, 2015 FCA 89, [2015] FCJ No 399 (QL) at para 116 [Paradis Honey], where the Federal Court of Appeal noted that a novel claim should not be struck because it is novel and found that a claim for monetary relief based on public law principles was novel and should be allowed to proceed.
[49] The Applicants submit that the remediation regime raises several novel issues, including statutory interpretation, whether the decision is an administrative decision and whether the DPP is a federal board or tribunal, all of which should be explored by the applications judge given that this is a matter of judicial first impression (i.e., there is no binding authority given that the remediation regime has not been addressed by the Court).
C. The Principles from the Jurisprudence
[50] In JP Morgan, the Federal Court of Appeal confirmed that the threshold to strike out a notice of application for judicial review is high, noting at para 47:
The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600 (C.A.). There must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6; cf. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
[51] The Court of Appeal explained, at para 48, that this high threshold is required to reflect that applications for judicial review should proceed in a summary way and that unmeritorious motions frustrate that objective.
[52] The Court of Appeal cautioned, at para 49, that Courts determining a motion to strike should read the notice of application “with a view to understanding the real essence of the application”, noting that “skillful pleaders can make Tax Court matters sound like administrative law matters when they are nothing