“Liberals “normalize” scandal, when they do it.”
The real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct
April 6, 2019
Where is the scandal here, ask the worldly-wise? No money changed hands, no crimes were committed, not even a whiff of sex. When it comes down to it, isn’t this all just a disagreement between a couple of cabinet ministers?
This is the scandal in the SNC-Lavalin affair. It isn’t just that the prime minister and a phalanx of other senior government officials — including his principal secretary, Gerry Butts, his chief of staff, Katie Telford, and the clerk of the Privy Council, Michael Wernick — quietly tried to derail the prosecution of a company with a long history of corruption and an even longer history of donating to the Liberal party; that they pressured the former attorney general, Jody Wilson-Raybould, to have prosecutors drop charges of fraud and corruption against the company in favour of a “remediation agreement” for which it had already been deemed ineligible; or that they did so, by the former attorney general’s account, for explicitly partisan reasons.
It isn’t that the crimes of which the company is accused — bribing officials in the bestial Gaddhafi regime in Libya, to the tune of tens of millions of dollars — makes this one of the most serious cases of alleged corporate corruption in Canadian history; or that the case is regarded as an important test of Canada’s willingness to prosecute companies alleged to have engaged in corruption overseas, as a signatory to the OECD Convention on Combating Bribery of Foreign Public Officials, after years in which we were regarded as international scofflaws.
It isn’t that the legislation providing for remediation agreements — also known as deferred prosecution agreements, they are a kind of plea bargain wherein a company admits guilt, pays a fine and restitution, but avoids a criminal conviction — had only just been passed, tucked deep inside an omnibus bill, in response to a massive public and private lobbying campaign by SNC-Lavalin; or that, when the director of Public Prosecutions, Kathleen Roussel, declined to offer the company the escape hatch it had spent so much money to obtain, it mounted yet another furious lobbying campaign to have her decision overturned.
It isn’t normal. More, it must not become normal
It isn’t that when caught Justin Trudeau and his people lied about it (“the allegations are false”); that when they were done lying about it stonewalled, deflected and obfuscated; that they repeatedly smeared, or encouraged others to smear, both the former attorney general and the former Treasury Board president, Jane Philpott, who resigned from cabinet rather than participate in this sordid campaign; that they muzzled both women by selective application of solicitor-client privilege and cabinet confidentiality, even as they ignored these constraints themselves; that they shut down two parliamentary committees rather than hear all the evidence from these and other relevant witnesses; and that after all this, when there was nothing to be achieved by it but sheer humiliation, kicked them both out of caucus.
No, the real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct: as if monkeying around with criminal prosecutions was all part of the usual give and take of cabinet government, or at worst a misunderstanding between people who “experienced situations differently.”
But it isn’t normal. More, it must not become normal. If SNC-Lavalin’s campaign had succeeded — if it were yet to succeed — it would not only mean the independence of the attorney general and that of the DPP had been compromised on this occasion, or that this particular prosecution had been improperly suppressed. It would set a precedent for every similar prosecution in future. The lesson for any large company facing criminal charges would be, not to phone their lawyers, but to phone their lobbyists, their MP, cabinet ministers, civil servants, anyone with the presumed ability to get the charges killed.
Because the arguments the government has used to justify its conduct in this affair could just as well be used in other cases. If it was all normal and above-board this time, it would surely all be normal the next. That is what makes all this so dangerous. Lying about it, covering up, at least acknowledges that something wrong was done. Whereas shrugging it off, in the prime minister’s airy fashion, clouds our very ability to tell right from wrong.
That is where the scandal is, here: less in the scandal itself, than in the attempts to pretend it is not a scandal.
Why is prosecutorial independence such a big deal? Simply, because power, unchecked, tends to be abused.
The powers of the state to investigate, arrest, charge, try, convict and ultimately imprison someone are among its gravest; they are in some sense the foundation of all of its other powers. The consequences, if such powers were to be corruptly or even mistakenly applied, are so severe that each of the institutions responsible is walled off from the others, that any errors or abuses might be contained.
Only the police may lay charges. Only prosecutors may decide whether to take those charges to trial. Only the courts may find someone guilty. And no one outside the judicial system may interfere with any of them.
This stricture applies most firmly to those most in a position to violate it: those at the apex of political power, in charge of the government that employs all these officials. The concern is obvious. People in power typically wish to use their power to entrench themselves in power. Were they to have access to any of these powers it is easy to predict how they might be used: to punish their enemies, or reward their friends. It is easy to predict, because that is how they are used, in places where police, prosecutorial and judicial independence is not the norm.
And yet it is mostly just that: a norm. Woe betide the cabinet minister who is caught phoning a judge about a case in front of him — he will be forced to resign, probably within the day. Why? Because convention decrees it.
But suppose a minister were to phone a judge, and being caught, refused to resign. Suppose instead he were to say he had a good reason. And suppose he succeeded in confusing the issue, relying on the public’s ignorance and the media’s short attention span. Not only would he have gotten away with it — he would have established the precedent.
That’s the thing about conventions: they apply only until they don’t. Each, moreover, is to some extent dependent on the others — on the broader convention that conventions are to be observed. It’s harder to insist on one convention if all the others are sliding into disuse.
All the more reason, then, to insist.
Why is prosecutorial independence such a big deal? Simply, because power, unchecked, tends to be abused
Perhaps the case for prosecutorial independence is clear enough in principle. What seems to elude many people is what it means in practice, or the necessity of certain institutional safeguards to protect it.
In the present case, there are two. The office of the Director of Public Prosecutions was established by act of Parliament in 2006 in the wake of the sponsorships scandal, with a view to making explicit the broad independence prosecutors had hitherto been afforded under the common law. The sole exception: the attorney general may direct the DPP with regard to the “initiation or conduct” of a prosecution, or even take over a prosecution altogether — provided she does so in writing, and in public, via the Canada Gazette.
The point of that last provision was to ensure such decisions would not be taken lightly. An attorney general has the power to instruct the DPP, but it is expected she will do so only in exceptional circumstances, for example in the case of an egregious error of law; otherwise little would be left of the DPP’s independence. In fact, it has never happened.
The other pillar of prosecutorial independence is the attorney general. As the DPP is (largely) independent of the AG, so the AG is intended to be independent of the rest of government; if anything the proscription on interference is more absolute. Not only is the attorney general not to be directed or instructed with regard to a particular prosecution, she may not even be pressured, by the prime minister or anyone else.
More than a convention, this has the status of a constitutional principle. Famously enunciated by a former attorney general of the United Kingdom, Sir Hartley Shawcross, in a 1951 speech to the British Parliament, the principle has been repeatedly upheld by Canadian courts.
So far as an attorney general involves herself in a decision about a particular prosecution — which is to say, almost never — she must be able to do so free of extraneous considerations, whether these be the consequences for her party, her relationship with colleagues, or her job.
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- ‘We have to make difficult choices’: No regrets in SNC-Lavalin affair, Wilson-Raybould and Philpott say
So when the former attorney-general complained, in her testimony to the Commons justice committee, of being repeatedly pressured to intervene in the SNC-Lavalin case, she was not, as the government has encouraged people to think, betraying personal weakness (“ministers are always under pressure”) or a misunderstanding of the realities of cabinet government.
Because the position of the attorney general, and the nature of a prosecution, is wholly unlike that of an ordinary cabinet minister debating this or that item of policy. This bears repeating: Prosecutions are not policy choices. It is perfectly reasonable for officials in government to engage in “robust debate” or “vigorous discussions” about whether to raise taxes or lower them or whether or not to legalize marijuana. It is not at all reasonable for them to debate who should be put on trial. It does not matter what legitimate grounds ministers and other officials might think they have. It is simply none of their business.
And yet the government has tried to pretend this is all some sort of a complex grey area. A dizzying array of arguments has been deployed: that it was not really pressure (they only wanted her to seek outside advice!), that they did not think it was pressure (people “experience situations differently”!), that it was not sustained pressure (only 20 times!).
Or that if it was pressure it was not “inappropriate” pressure: because she had not provided them with the reasons why SNC-Lavalin was not given a DPA (she did, though she was not required to), or had not taken enough time over it (“only” 12 days, to review a decision the DPP had already thoroughly considered), or had not protested at being pressured (she did, repeatedly and explicitly: at a meeting with the prime minister on Sept. 17, in a phone call with the clerk of the Privy Council on Dec. 19, and in calls and meetings with various other officials in between), or — most often — because they had a really good reason to pressure her, notably the 9,000 jobs that were allegedly at stake.
The principle, also found in Shawcross, that an attorney general is entitled to seek advice, has been turned on its head, to mean they are entitled to press it upon her. The adage that a prosecutor’s decision is never final has undergone a similar inversion: from a statement that a prosecutor is entitled to change her mind at any time in the presence of new facts or evidence, to an invitation to others to pressure her to do so, and to go on pressuring her, again and again — not because of any new facts or evidence, but only out of an unchanged desire to have their way.
More than a convention, this has the status of a constitutional principle
The emphasis on certain lines of argument would seem in inverse proportion to their tenability. The pretense, to name one, that the attorney general was in need of legal advice, not already available to her from the hundreds of lawyers in her own department — allegedly because the provision providing for remediation agreements was “new,” as if prosecutors were obliged to consult former Supreme Court justices every time a new law was passed — was an obvious fig-leaf: the only reason they wanted a second opinion was because they did not like the first.
The 9,000 jobs claim, likewise, has been comprehensively debunked: not only is it backed by no serious empirical analysis, it does not make sense even as a matter of simple logic. There is little evidence that SNC-Lavalin would collapse in the event of a criminal conviction, even if the attendant 10-year ban on bidding on federal contracts were enforced. Federal contracts are a small part of the company’s overall business, most of which is outside Canada; its foreign subsidiaries would likely not be prohibited from bidding, while even the domestic operation would have billions of dollars in existing contracts to tide it over. Even if SNC-Lavalin were to disappear tomorrow, the jobs would not: the work on those federal contracts would still need to be performed, and the workers hired to do it. They’d just be working for other firms.
And: even if all of the government’s arguments were true, they still wouldn’t make the case for interfering with a prosecution. The maxim is not that an attorney general may not be pressured unless the prime minister has a good reason. It is that she may not be pressured, period.
That’s true as a general principle. It is doubly true when, as the evidence suggests, the reasons were transparently political: the fears, expressed to Wilson-Raybould and her chief of staff on several occasions, that an adverse decision on SNC-Lavalin would harm the party’s political interests in Quebec. And it is triply true when the pressure takes the form, as in the Dec. 19 conversation with the clerk, of threatening her dismissal.
And these are the “respectable” arguments! Of even less relevance are the many and disgraceful attacks on the former attorney general’s conduct, motives and character.
Certainly it is hard to see the sort of obvious error that might conceivably justify the attorney general overruling her
Why did she not resign if she were under such pressure, it is asked, pointedly, as if this was enough to disprove all the evidence that she was, or as if she were under some sort of moral or even legal obligation to — spoiler: there is no such obligation — or as if the issue were not others’ misconduct, but her reaction to it.
The same applies to attempts to impugn her record as attorney general, notably the leaked “revelation” that she recommended an appointment to the Supreme Court the prime minister disliked. That may or may not provide an alternate explanation of why she was removed as minister of justice and attorney general. But her demotion is only a small part of the overall story: the attempted interference in a prosecution is the issue, and would remain so, whatever her fate, and whatever the reasons for it.
And again, with regard to speculation about her motives (was she resentful at being demoted? is she trying to bring down the prime minister?) or attacks on her character (is she naive? difficult? selfish?): true or not, they do not alter one iota the truth of her testimony, or the impropriety of what they reveal. They are just more red herrings, in a veritable sea of them.
Still, the appeal to “grey areas” is seductive. No one likes being accused of “black and white thinking,” while the ability to see “shades of grey” is considered the height of sophistication. And so it is — where there are in fact shades of grey.
But in fact there is no ambiguity about the independence of the attorney general. It is settled law. To pretend otherwise is not to show a nuanced understanding of the complexities of life. It is simply to misrepresent the facts.
It is no defence, even if true, that the prime minister and his officials did not realize they were pressuring the former attorney general. People in high office are supposed to understand basic principles of law, or to be advised by those who do. But in fact it is wholly implausible. From the first time she complained of being pressured — for example, at the Sept. 17 meeting with the prime minister — it is obvious they should have backed off.
No one likes being accused of ‘black and white thinking’ while the ability to see ‘shades of grey’ is considered the height of sophistication
Or rather, no: it should never have even come to that. There is a general ethical obligation on all public office-holders, familiar from the federal conflict of interest code: not merely to obey the letter of the law — how many times have we been told “nothing illegal” took place, as if that settled the matter? — but to perform their duties “in a manner that will bear the closest scrutiny.” They are not supposed to seek refuge in grey areas, even where these exist. They are supposed to stay well clear of them.
How did a principle that was so clear become so muddied? I think it coincided with the introduction of remediation agreements. Before then, decisions on prosecutions were binary: to prosecute or not. Any attempt by elected officials and their staff to interfere with a prosecution would have been seen for what it was.
But now, they could claim they were merely seeking a different form of punishment — albeit a decidedly lesser one. (That it is, in fact, a lesser punishment is obvious: why else would SNC-Lavalin have gone to such lengths to get it?) Moreover, by including among its stated purposes such extra-legal considerations as reducing the “negative consequences” of a prosecution for “employees, customers, pensioners and others,” the legislation can be portrayed as opening the door to discussion by others, outside the ranks of prosecutors.
The merits of remediation agreements as policy may be debated. Supporters note they are used in other countries, which may or may not recommend them to Canada: the evidence is mixed. On the one hand, they offer a chance to avoid prolonged, costly trials with uncertain outcomes. On the other hand, they risk normalizing corruption: where before a company might regard the risk of getting caught as existential, it might now be considered merely a cost of doing business.
Whether a remediation agreement ought to have been offered to SNC-Lavalin, on the other hand, is — again — for the DPP to decide. Her reasons haven’t been made public, but we can guess at them, with reference to the relevant provisions of the Criminal Code, at section 715.3.
How did a principle that was so clear become so muddied?
We needn’t invest too heavily in the celebrated 715.32 (3), borrowed from that OECD convention, forbidding prosecutors from taking into account the “national economic interest.” Take a look at 715.32. “The prosecutor,” it says, “may enter into negotiations for a remediation agreement” provided, among other conditions, the prosecutor is “of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances.”
Informing that judgment are a list of factors the prosecutor “must consider.” Factors such as “the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities.” That’s a clear reference to one of the legislation’s primary objectives: “to encourage voluntary disclosure of the wrongdoing.” But SNC-Lavalin did not voluntarily disclose: it was caught by Swiss bank authorities.
Now go down the list of other factors. Among others: “The degree of involvement of senior officers of the organization.” Yes, they were involved. “Whether (the organization) entered into a previous remediation agreement or other settlement.” Check: several of them. “Whether the organization — or any of its representatives — is alleged to have committed any other offences.” Hoo, yes.
Now scroll down to 715.34: Mandatory contents of agreement. Among these: “the organization’s admission of responsibility for the act or omission that forms the basis of the offence.” Perhaps the company is just playing its cards close to its chest, but it has never yet, to my knowledge, made such an admission: indeed, it says it intends to vigorously contest the charges in court. The DPP may have concluded it was unlikely to make such an admission in future.
Perhaps another prosecutor might have found it “appropriate” to negotiate a DPA in these “circumstances,” but her decision would certainly seem to have plausible grounds, even without being privy to all of the evidence that she would have. Certainly it is hard to see the sort of obvious error that might conceivably justify the attorney general overruling her.
Which, one last time, is her decision.