It’s been a few weeks of high drama in Canadian politics over accusations that Justin Trudeau violated the rule of law in his dealings with former justice minister Jody Wilson-Raybould over the prosecution of Quebec-based engineering giant SNC-Lavalin.
SNC is charged with bribing Libyan officials between 2001 and 2011 to win lucrative contracts. The SNC executives involved are no longer with the company. SNC has implemented new ethics and compliance rules to prevent illegal conduct in the future and has been lobbying the federal government hard for a Deferred Prosecution Agreement (DPA) to avoid going to court.
Kathleen Roussel, director of public prosecutions, decided against a DPA. Wilson-Raybould supported the decision. And last week a federal court judge rejected SNC’s application for a judicial review of that decision.
The prime minister, his staff in the Prime Minister’s Office (PMO) and others were not happy with Wilson-Raybould’s decision on the DPA. A mini cabinet shuffle saw her moved out of Justice and into Veterans Affairs before she quit cabinet. She appeared before a parliamentary justice committee last month to explain what happened. She acquitted herself well.
At the end of her testimony she said, “I imagine Canadians now fully understand that in my view these events constituted pressure to intervene in a matter, and that this pressure – or political interference – to intervene was not appropriate.”
Actually, no. As much as Canadians may respect Wilson-Raybould’s decision to quit, it’s difficult to fully understand her view.
Wilson-Raybould wore two hats as justice minister (a political role) and attorney general (a non-political role). The prosecution of SNC falls under her responsibility as AG, which requires her to make decisions in a non-partisan, objective way, free from political influence.
As attorney general, she had prosecutorial discretion. She can issue directives to the Department of Public Prosecutions (DPP) on specific cases or take over prosecutions altogether as long as she gives notice she’s doing so in the Canada Gazette. In other words, it would have been perfectly legal for her to tell the DPP how to prosecute SNC – whether to go with a DPA or to go to court.
Wilson-Raybould confirmed it was okay for cabinet ministers to draw the AG’s attention to important public policy considerations relevant to her decision on how a prosecution will proceed, but she can’t let such considerations influence her decision. In other words, it was okay for the PM, finance minister and others to raise the economic implications of a conviction in the SNC case.
She said the PM, staff at the PMO and others contacted her and/or her staff 20 times to discuss other “solutions” over the course of four months. She said these contacts amounted to undue pressure and were inappropriate.
The prime minister and Wilson-Raybould agreed that the PM did not direct her to change her mind on SNC, leaving the decision up to her. They agreed there was significant contact between Wilson-Raybould and/or her staff and other cabinet ministers, their staff and the PMO, but they disagreed on the characterization of this contact.
Was it the regular contact between members of cabinet and their staff on a difficult file or was it undue pressure and inappropriate?
The PM’s staff, the clerk of the privy council, the finance minister and his staff suggested the following solutions:
Wilson-Raybould could talk to the Department of Public Prosecutions about her decision not to offer a DPA. A member of Wilson-Raybould’s staff could “reach out” to the DPP to discuss the decision. Wilson-Raybould (in her capacity as AG) or the DPP could hire external counsel, a retired Supreme Court of Canada judge, for example, to review the decision not to offer a DPA.
Wilson-Raybould offered her own solution. She said SNC could send her a letter and she’d forward it directly to the DPP. It’s unclear what she expected the DPP to do with it.
The first two suggestions and her own solution were nonstarters given Wilson-Raybould’s position that she wasn’t going to change her mind and intervene to offer SNC a DPA.
However, the hiring of a retired judge to provide an external legal opinion makes sense given the legislation around DPAs was new and there was no precedent governing how the process should work. Wilson-Raybould rejected it as being inappropriate. She didn’t say why, but some legal experts have suggested a second opinion would undermine the rule of law by allowing someone (who?) to do an end run around the AG. This is puzzling.
Lawyers working for corporations retain outside counsel for a second opinion when they face issues that could seriously harm the company if they get the law wrong. Bringing in outside counsel is not an abdication of legal responsibility or a sign of incompetence. A second opinion provides “air cover” for a legal decision that may be unpopular with senior management – and if it turns out the company lawyers were overly cautious, they can change their advice.
It’s unclear why Wilson-Raybould rejected the opportunity to test the DPP’s decision with outside counsel. If the opinion supported her position, she’d be vindicated. If an outside expert came to a different conclusion, she could have ignored it or revised her position. In either case, it would have put an end (temporarily) to the pressure she was under from the PMO and others.
Violation of the rule of law?
Canadians will never fully understand what happened here.
We’ll never know why the DPP, for example, refused to offer a DPA to SNC. We’ll never know whether 20 phone calls and meetings over four months with Wilson-Raybould and/or her staff created “undue” pressure or was a normal interaction to a groundbreaking issue. We’ll never know why Wilson-Raybould rejected the offer of an external legal opinion from a retired Supreme Court judge. We’ll never know why she resigned as Veterans Affairs minister. She said she’d resign immediately if her successor in Justice agreed to a DPA he didn’t but she resigned anyway. All we know is Wilson-Raybould characterized the pressure as “inappropriate,” but not illegal.
We also know opportunistic politicians are twisting Wilson-Raybould’s testimony to allege the PM tried to get her to betray her duty to uphold the law. This is nonsense because she would have upheld the law whether she supported the DPP’s decision or decided to intervene and take over the prosecution. She had the legal authority to do both. Meanwhile conspiracy theories abound.
The normally level-headed Green party leader Elizabeth May is asking whether we should be concerned that SNC’s counsel is former Supreme Court Justice Frank Iacobucci, the same Frank Iacobucci who is leading the consultation process between the government and Indigenous peoples over the Trans Mountain pipeline.
Unless we get more information, the SNC-Lavalin affair is nothing more than political spectacle, bread and circuses that distract Canadians from issues raging in their own backyards.
Susan J. Wright is an Alberta-based lawyer.
A slightly different version of this article was published at rabble.ca.