My Two-Hatter Take on Wilson-Raybould, Trudeau, and SNC-Lavalin

Former federal Minister of Justice and Attorney-General, Jody Wilson-Raybould, testified for nearly four hours before the Parliamentary Justice Committee yesterday. Her testimony was riveting, thoughtful, precise, backed up by notes, her credibility impeccable, and her presence a paragon of integrity. Dramatic, yes? But “devastating to the Liberals,” no.

She related several instances over the five-month period between September 2018 and January 2019 when Prime Minister Trudeau, senior members of the PMO, and the civil service put what she described as “inappropriate pressure” on her and her staff, apparently in an effort to have her “change her mind” about supporting the Director of Public Prosecutions in her criminal charges against SNC-Lavalin for bribery in Libya, and her refusal to offer them a DPA (“deferrred prosecution agreement”) to settle the matter. In her view, their actions amounted to “a consistent and sustained effort to politically interfere” with JWR’s role as an independent Attorney-General.

JWR admitted that what happened did not rise to the level of criminal activity but, in her view, “it was inappropriate” and, but for her refusal to change her mind, could have amounted to a derogation from “the rule of law” in Canada. She went on to testify that she thought her removal from her Cabinet position as Minister of Justice and her role as Attorney-General was due directly to the stand she had taken on SNC-Lavalin.

If you have not seen her testimony, do not rely on press reports. Watch it yourself on the internet.

The opposition is having a field day. Leader of the Opposition, Andrew Scheer, called for the PM to resign and for the RCMP to start a criminal investigation. NDP leader, Jagmeet Singh, insisted on a full-fledged Judicial Commission of Inquiry. The Justice Committee wants the PM to extend the government’s waiver of cabinet confidence and solicitor-client privilege so that JWR can return and testify about what happened between her and the PM after she was demoted to Minister of Veteran Affairs. The Committee and the media agree that everyone who had contact with JWR and her staff must testify before the Committee and the Ethics Commissioner so that “Canadians can know the facts.”

In his press conference after JWR’s testimony, Prime Minister Trudeau forcefully denied that he and his staff did anything wrong. He totally rejected JWR’s characterization of what occurred. He agreed that his government was concerned about the consequences of the ongoing SNC-Lavalin prosecution on “jobs,” and on innocent employees, creditors and investors of the company. But he insisted that the decision about the criminal prosecution was for the Attorney General to make, and that, at no time, did anyone ever direct her otherwise. While respecting the role of the Attorney General and the primacy of “the rule of law,” he acknowledged, as JWR said, that his government wanted “a solution” to the SNC-Lavalin problem.

We’ve had three weeks of political turmoil in Ottawa and unprecedented testimony about how government works from the inside. Despite the drama, no one in the Justice Committee, nor in the national media commenting on the event later, picked up on the primary lesson evident from all that has occurred.

At the end of her testimony, former Attorney General Jody Wilson Raybould suggested that the dual role of Minister of Justice and Attorney General which exists in Canada should be divided, as it is in Britain. There, the Minister of Justice sits as a member of Cabinet, concerned with policy development and political considerations. The Attorney General is an independent office, does not sit in Cabinet, and is shielded from political influence by the separate structure created by the express division of responsibilities for policy development and for prosecutions. She suggested that such a structure would be useful for the Canadian government to consider. I totally agree.

In my view, this entire episode boils down to different views on the role of Canada’s two-hatted Minister of Justice/Attorney General.  The dual role requires different approaches and different actions. Inherent in the dual role is the potential for conflict. Positing both positions in the person of a single individual may well place her into an impossible conflict, as it apparently did with Judy Wilson-Raybould.

Everyone knew that the AG supported her DPP, and there is no evidence that anyone asked her to countermand her DPP and/or take over the prosecution (although in law she had the power to do that). When, in October, SNC-Lavalin received formal notice of the DPP’s decision not to offer them a DPA, the company immediately started a legal action challenging that decision. That legal action was the first such action on the new law and was pending at all relevant times. The focus of this litigation was on three key questions: could the courts review the exercise of her discretion? if so, what criteria did she use? And did she apply the criteria correctly? All are important questions on how the legislation is to work in the future.

That the matter was before the courts was useful for the government. As I have argued previously, this Liberal government doesn’t like to be labelled “soft on crime” and prefers to have the courts do their dirty work for them.

But while the matter proceeded before the courts, the Liberal government wanted its constituents to know that they had not forgotten the matter; hence the search “for a solution.” JWR admits that all the officials and staffers who pressured her were looking “for a solution.” What kind of “solution”? Since she said her refusal to interfere with the ongoing litigation was clear as early as mid-September, what kind of “solution” were the PM’s politicos after? I interpret this to mean alternative legislative or regulatory means which could mitigate the damage on SNC-Lavalin in the event of a conviction. An amendment to the mandatory ten-year ban on no-government contracts in the event of a conviction is one possible option; another may be providing a discretion as to what length of ban would apply.

As Minister of Justice, JWR was responsible for policy development related to the Criminal Code. In that role, “jobs” and the interests of “employees, investors, and creditors” would be legitimate and major concerns, and the PM, other officials, and staffers could well want JWR to use the resources available in the Department of Justice to formulate a proposed alternative solution. These were matters that could have been dealt with in the original legislation. For some reason unknown to us, that did not occur and now the government was faced with correcting the lacuna.

Apparently, JWR, wearing her Attorney-General hat, felt uncomfortable with discussion and actions that properly fell to her in her role as Minister of Justice. That she raised the need to separate the two roles before the Justice Committee indicates the dilemma and helps explain the context of what has occurred. For all the shouting from the opposition and the black ink in the media, the Liberals have learned a valuable lesson. I am confident that they have the wisdom and the experience to go forward with the structural solution that stares them in the face and could well resolve the problem.

 

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11 comments

  1. Educating Human Potential

    Thanks for removing the drama and succinctly identifying JWR’s really challenge-her conflicting dual roles.

  2. Bob

    Hi Marion, 

    Being thousands of kilometers away has made it somewhat easier to drop in and out of the SNC ‘affair’.  And perhaps because I’m viewing it all from afar it’s looking just far to dramatic or some might say political.   I appreciated your well written summary.

    Thank-you

    Bob

  3. Marlene K.

    Ah, Marion, you’re such a Liberal! I can hardly wait for Carl to weigh in on this! Great article as usual.
    While there will be more witnessses before the Justice Committee, the majority Liberal members have prevented the calling of some who have been requested. It may not be surprising that JWR’s suggestion about separating the 2 roles has not had a lot of play. I do think the Chair of the Justice Committee suggested or acknowledged that it was a matter the Committee should/could consider and there was some “pundit”-talk about this prior to her testimony. However, I think the testimony was so shocking, the opposition are going to continue to go for the jugular and the media are focused on this previously non-public info about how decisions get made and whether JWR will be able to remain in caucus – and presumably the civics lesson they and we are learning. To give the Liberals credit, their announcements on other matters in the past 2 days should serve them well to take the heat out of the damage JWR may have done to their brand. In spite of the pundit-criticism of how the PM has handled this, it certainly doesn’t look to me like he has skipped a beat. But it’s a long-time before now and the election.
    Nevertheless, thinking about the separation of the AG & DoJ functions, what do we think would have happened to a government-appointed AG if she refused to act as the government thought she should? Do you know: Does the UK appoint the AG for a fixed term? Or “at the will of the Privy Council”?

    • Marion Lane

      Hi Marlene:

      I agree that it is a long time until the election. My son’s response to all this will likely appear here shortly. We have been debating it for a couple of weeks and, as you guessed, his position is very different from mine. He writes here as Bob I.

      As for your specific questions about how the UK AG functions, I do not know the answers. I know that the AG does not sit on Cabinet and there is apparently British caselaw on what is the “appropriate line” for communications between politicians and the AG. I do not know who appoints the AG or his or her term of tenure.
      Cheers Marion

  4. Bob I.

    Marlene,

    There is another comment waiting in the wings.

    But to address your specific point about having a non-governmental AG. That was, in substance, the intent behind creating the Public Prosecution Service (the “PPS”) and delegating the decision-making powers previously reserved to the AG to the Director of the PPS (the “Director”) – see section 3 of An Act respecting the office of the Director of Public Prosecutions (the “Act”). The appointment of the Canadian Director is done from a list of three candidates chosen by a committee that includes representatives from each party and the Federation of Canadian Law Societies. Furthermore, she serves for a single fixed term of 7 years and can only be removed by a resolution of the House of Commons.

    For all this nonsense about the perils of double-hatting, Canada has already separated the criminal prosecution role of the AG from the Minister of Justice and assigned it to Director. This entire scandal is about the government – openly, and shamelessly, trying to reverse the exercise of the Director’s delegated authority. That Liberal cabinet ministers are *openly* musing about doing so in the pages of today’s Star is a shocking disgrace. It shows the contempt they have for the rule of law in this country. They, like Gerry Butts, may not like the PPS, the Director or the Act – “a law enacted by Stephen Harper,” he said, “therefore a bad one” – but that is the law of the land, and they cannot simply disregard it.

    Now, it is true that the Act grants to the AG a reserve power to intervene in a specific matter or provide directives (see section 10 and section 15). But it is also clear that these sections were intended to be reserve powers that were rarely executed. And the Act requires that any such interventions or directives be published in the Canada Gazette with reasons. This means that if the AG is trying to intervene in criminal cases for inappropriate purposes (e.g., to secure votes in Quebec as the PMO sought to pressure JWR to do) – such notices would trigger a constitutional crisis of the sort that we are, in fact, now witnessing.

    I know the Liberals like presenting Stephen Harper as a boogie man, but he created the PPS and delegated the AG’s authority to the Director precisely because he was worried that a government (and, no doubt in his mind, a Liberal government) might interfere in criminal prosecutions to its own advantage. The Act was designed to prevent the Liberals from doing what they wanted to do here and, in no small part to Wilson-Reybould’s integrity, has protected the integrity of our criminal justice system from political intrusion. We don’t need to change our institutions as a result of this affair, we simply need the Liberals to respect them.

  5. Bob I.

    Your interpretation of what the Liberals were pushing for is wholly unreasonable and is part of a broader trend of political partisans trying to rationalize and normalize outrageous behaviour – behaviour they would never tolerate from their opponents – when committed by “their” team.

    First, had the Liberals merely been pushing for an amendment to the Criminal Code, why did they not say so? It would have been entirely appropriate for the PM to ask his Minister of Justice to make amendments to the Criminal Code. Amendments are a matter of legislative policy, not administration of criminal law, and well within the purview of the PM to push for. He did that expressly in his mandate letter to the Justice Minister vis-a-vis other criminal law legislative priorities. No doubt if that was what they were asking, their SNC lobbyist friends would have been happy to provide proposed legislative amendments. As a registered lobbyist, that is what I have done when seeking changes in law. It’s the usual practice. But no such submissions were made.

    Similarly, the 10-year ban isn’t a provision of the Criminal Code, it is a government policy. It wouldn’t be the Justice Minister responsible for changing it (as was revealed in the Globe article I circulated to you last week). Again, if they wanted to change that, they just could have changed it, with or without Wilson-Raybould’s assistance. Nor is it clear she would have objected. Doing so wouldn’t interfere with the independence of her office or the PPS. Indeed, the Globe article I circulated revealed that they started considering changing that policy last October, but they continued to pressure Wilson-Raybould. Why?

    Their cageyness on the topic – suggesting that she find some vague “solution” – only makes sense if they were asking her to do something they knew was improper, and didn’t want to say it explicitly. That something was overturning the Director of Public Prosecutions decision on SNC Lavalin. No other interpretation makes sense.

    Furthermore, your interpretation is expressly contradicted not only by Wilson-Raybould’s testimony, but also by subsequent statements by other Liberal Ministers. Wilson-Raybould testified that her deputy was told that the top priority of the new AG was a briefing on the SNC remediation agreement issue – not a change in law or a change in policy, but reversing the Director of the Public Prosecution Services decision to align with Justin Trudeau’s expressed policy preference.

    Moreover, she testified that a number of senior officials offered ways to give her cover to reverse the director’s Decision on SNC – by seeking an external opinion supporting a reversal, by publishing op eds supporting that decision, etc. None of that has to do with changing the law, it was about reversing the Directors decision. They couldn’t have made their desired “solution” more clear. Moreover, since taking over, Liberal cabinet ministers have continued to muse publicly about reversing that decision. Heck *today’s* Star quotes a Liberal Cabinet Minister openly speculating about overturning the Director of the PPS. Why are they talking about that if the “solution” they wanted was a change in law? No, your interpretation is inconsistent with their actual actions and statements. it’s wholly unbelievable.

    Finally, for all the blathering about the dual-hatted role of the AG and Justice Minister, it seems to have eluded everyone that it was precisely to avoid such conflicts that the Stephen Harper government – yes, yes, boo, hiss, enemy of democracy – created the independent public prosecution service and vested ultimate decision-making power – in the ordinary course – to the Director of the Public Prosecution Service.* No doubt, for the same reason, Parliament – controlled by the Trudeau Liberals – in enacting the remediation agreement provisions of the Criminal Code, delegated the substantive legal decision-making role to the Director of the Public Prosecution Service, not the AG.

    The problem is not the dual-hatted nature of the AG’s role. The problem is that the law gives the power to make those decisions to the independent Director of the PPS and the Trudeau government didn’t like the decision of the Director and sought to overturn it. No one contests that description of events. There is no confusion here. It is up to the Director to make the decision, the Director made it, and the Liberals have openly and shamelessly tried to reverse that decision. That is precisely the sort of political interference in political prosecution that the Shawcross Principles prescribe and which the delegation of the AG’s powers to the Director was intended to avoid.

    True, the PPS act does give the AG a residual power to intervene in criminal cases, but it was clear that it was intended that such power would be rarely used, and mechanisms were put in place to ensure that any such use would be heavily scrutinized by requiring that such interventions be reported in the Canada Gazette. Absent a compelling principled basis for the AG’s intervention – i.e. not “but we’ll lose votes in Quebec” – any such effort was expected to provoke precisely the sort of constitutional crisis we’re seeing now. Wilson-Raybould was absolutely right not to invoke her theoretical powers to advance the partisan interests of the PM and his henchmen. Had he done so, she’d be no better than they are.

    In that light, it is disgraceful to excuse or rationalize what was a clear effort to violate the constitutional conventions around the independence of the Attorney General described by the Shawcross principles and reflected in the independence of the Director of the Public Prosecution Service.

    Constitution conventions are not legally binding and they are not legally enforceable. They are, or are supposed to be, politically binding. But they bind only so long as *any* breach of them carries an immediate and devastating political cost and stigma. Excusing the Trudeau government’s disgraceful conduct erodes the force of those constitutional conventions, and, as they erode, this sort of political interference in criminal law will become normalized. While this should be obvious, Trudeau won’t be in power for ever. You may be cool with his interfering in criminal prosecutions to advance his agenda, but I doubt you’ll be so keen on similar interventions by some of his potential successors. Either we hold a hard-line against all such interference, even when it’s done by “our team” or we don’t, and it becomes commonplace. Either you defend the rule of law or you undermine it.

    As an aside, the contributions of the Harper government to accountable governance in Canada – much maligned by the Liberals and their stooges – are on full display in this case. The independence of the PPS addresses the alleged problem of double-hatting that you think the Liberals need to address. Having watched them try to undermine that independence, that you think they might now move to increase it is mind-blowingly naive. The Lobbyist Registry that the Tories strengthened has also exposed the extent to which SNC has pushed the Liberals to rewrite the Criminal Code in its favour. No wonder the Liberals, like Gerry Butts, don’t like Stephen Harper’s laws; they make life much more difficult for them

  6. Marlene K.ri

    Thanks, Bob I. I did wonder if the Canadian DPP position was created to strengthen prosecutorial independence. Interesting that the term is 7 years. It would be interesting to see what was in the consultations on the amendment to the Criminal Code that ultimately created the Deferred Prosecution Agreement. And that the 10-year limit on no federal contracts if convicted is simply a policy that can be easily changed. It must really be that SNC just doesn’t want a criminal record (or a public trial) and the Liberals want to make sure they don’t get one.

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