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Divorce, Liberal Style
April 15, 2019
Parliament makes laws. The judicial system enforces them. To do so, it takes into account previous cases in which the laws have applied, the Charter of Rights and Freedoms and any other relevant legislation, and parliament’s intent.
It is critical that the judicial system be independent: otherwise a law passed by one parliament, with which another more recent parliament disagrees, would not be able to be impartially enforced. If parliament disagrees with a law, it must draft amendments to it or a new law, not interfere with the application of the existing law.
There have been instances of parliament believing that judges are interpreting the law in such a way as to undermine the authority of parliament. Some governments have decried what they call “judge-made law”. In such an instance the accusation is that the judicial system is overstepping its authority and creating new law through interpretation which will result in a precedent inconsistent with parliament’s intent.
In the SNC-Lavalin case, it seems to be the reverse. Parliament made a law permitting corporations to request deferred prosecution agreements (DPA) under specific circumstances. This law was developed to put Canadian companies on a level playing field with their foreign competitors (including US and UK companies). It meant that, like companies in other countries, Canadian companies could pay for their crimes without prosecution and the resulting bars from government contracts. In the case of SNC, without such a law, they might find themselves unable to bid for contracts where UK and US companies with similar bribery histories were able to bid, having received DPAs in their own countries. The consequence of a criminal conviction is a ten year prohibition from government business in Canada, which will be reported by the OECD and will likely result in bans in other countries.
No one seems to question that the law was passed in Canada in large part to deal with the exposure one of our signature companies, SNC-Lavalin, was facing with respect to accusations of bribery in Libya.
It seems clear that SNC has broken the law and that it had, and possibly still has, a culture supporting some illegal acts. Not only has it been accused of bribery in Libya, which many would historically have considered a cost of doing business in jurisdictions of the type, but of bribery and kickbacks in its own country, where such things are both illegal and culturally unacceptable. The company has a history of malfeasance with respect to bribery. Bribery is a recognized worldwide problem addressed by an OECD convention, to which Canada is one of more than 35 signatories. That said, SNC has been involved in many projects at home and abroad that have been a source of pride to Canadians and have created both engineering jobs, and that much rarer commodity, head office strategic jobs, in this country. This latter category of jobs is critical to the autonomy of a country, and its future independence and prosperity. Canada punches well below its weight in generating head office jobs in significant corporations, leaving strategic corporate decision making in other countries.
The Director of Public Prosecutions, faced with the SNC-Lavalin Libyan bribery case, chose not to offer the DPA route, but rather to proceed to prosecute the company. The Prime Minister, and those around him, were clearly taken aback by this: they felt that Parliament had given the DPP the DPA tool, and they did not understand why it was not being used in this case, for which it had, on all the evidence, been conceived.
At this point they began requesting that the Justice Minister (a Cabinet Minister in the government that enacted the legislation) use all legal methods to ensure that if legally possible a DPA be offered to SNC-Lavalin. They specifically asked that given that this was new legislation and no precedents for its application existed, the Justice Minister obtain a review of the case for and against the offering of a DPA from a respected and experienced jurist, while assuring the Justice Minister and Attorney General that regardless of what that opinion might say, the Minister of Justice and Attorney General would have the final say and would be respected if she still upheld the position of the Director of Public Prosecutions that the DPA was not appropriate in this case. In Canada, rightly or wrongly, the Justice Minister is also the Attorney General and is thus charged with upholding the independence of the judicial system.
Jody Wilson-Raybould, Justice Minister and Attorney General, took the position that she would not revisit the decision of the Director of Public Prosecutions, that she would be engaging in political interference in the judicial system to review it, and that even asking her to do such a thing constituted political interference.
We have now heard from her, including transcripts and recordings of conversations, and from those she accuses of this interference. Those accused of the interference say that they steered clear of any actions that might be illegal, and she agrees with this. However, her statements have led many in the media to believe that she received veiled threats that if she did not get the decision changed, i.e. overrule the DPP and offer SNC-Lavalin a DPA, she would face consequences. The media and the opposition parties have concluded that her move from Minister of Justice and Attorney General to Minister of Veterans Affairs was such a consequence and amounted to punishment. They contend that this outcome demonstrates that the threats were indeed there, however subtly veiled.
Listening to all the testimony and reading everything submitted, and all of the media reports, it still seems possible that she could have felt what she felt, but that all the PM and his associates were trying to do was to find a legal way to save a company, its employees and investors, from disproportionate consequences for the actions, many years ago, of individuals no longer employed by the company and about which most of them were entirely unaware.
Further, everything in the conversations and recorded phone calls supports the interpretation that everyone was aware of the risks and determined not to interfere in the judicial system, but to keep looking for a solution consistent with the independence of the judicial system to ensure that SNC-Lavalin got the benefit of the law enacted for its advantage if at all possible. This seemed a valid intention given the number of jobs at stake, the potential loss of a significant Canadian company to the country, and the subtraction of institutional large project engineering knowhow from Canada, as it is widely agreed that SNC-Lavalin is the only Canadian company capable of competing on and completing many of the large projects that Canada needs to undertake.
So why is this such a big deal? Why were the media so quick to seize upon the possibility that the independence of the judicial system was being cavalierly sacrificed by the Prime Minister to save SNC-Lavalin from prosecution?
One or more people in Jody Wilson-Raybould’s office intimated to the Globe and Mail that she had received undue pressure on this case, and the Globe and Mail decided that this was a legitimate topic to pursue. With some exceptions, the Globe and Mail has been consistent in condemning the actions of the PM and the PMO as threatening the independence of the judicial system and risking making Canada a place where the rule of law can no longer be taken for granted: in the words of some, no better than a banana republic when it comes to confidence in the integrity of our institutions. The Globe was soon joined by the majority of other media outlets, in the kind of piling on which the media is famous for but draws a severe penalty in sport.
Sitting back from it, with some geographical distance while it was all going on, I at first thought the media were displaying unseemly glee at unmasking the heretofore virtuous Justin Trudeau. I couldn’t help wondering if there wasn’t something behind this schadenfreude. Is this the classic Canadian tall poppy syndrome, in which we cannot wait to take down someone who has exceeded our expectations for him, and been “too successful”, too good for the rest of us, breathing a rarefied air which, in classic sour grapes mode, we insist we would not want to breathe?
Or has he really done something terribly wrong here? Has he really attempted to subvert the course of justice, take independent institutions and mold them to his ends regardless of the “legalities”? Has he done this not because SNC-Lavalin is important to Canada, but to the Liberal party over many decades and with respect to the upcoming election?
In favour of this argument are Katie Telford’s comment that “we need to stop talking about legalities” and Justin Trudeau’s own comment that “I am the member for Papineau” and Mathieu Bouchard’s comment that “We can have the best policies in the world but it does no good if we don’t get elected”. Yet it is not hard to imagine a context for each of these statements in which it is simply a reflection of a concern for saving jobs and the legitimate concern that is for the electorate, who would naturally respond at the polls. Isn’t that the point of democracy, that our elected officials risk being thrown out of office if they do not act in our interests?
Instead, is it not possible that both Jody Wilson-Raybould and the PM and his associates were acting in good faith, that one was appropriately primarily focused on ensuring that the judicial system was not corrupted by choosing its prosecutions based on political expediency, and that at the same time the other was trying to find a legal way to achieve a laudable objective, that of ensuring innocent people were not punished for the past crimes of people long-since dismissed, while simultaneously punishing those people and erasing the gains their actions brought to the company?
In the end, why should the legal reasons for the refusal of the DPA not be explained to the PM and PMO? We know there was a memo detailing reasons: was it not sufficiently clear to the PM and PMO or did they simply not like the answer? Why should there not be some check and balance to ensure that the DPP has made the correct determination, by the AG? If indeed it is the correct determination, why would the AG fear having to justify it, or fear an experienced jurist’s view, when in the end the DPP is assured of the final say?
If there was indeed a threat of consequences for not changing the decision, rather than for not considering all aspects of it before making it final, then that in my view would not have been appropriate. Clearly many commentators see this as what happened, and believe the AG was not being asked to review the case and reconsider her decision, but to review the case and provide cover for changing the decision in such a way that it would not appear to have been interference…or else.
It seems very clear that the DPP was entirely convinced of her legal position and believed SNC was the wrong place to use the new tool of the DPA. Why then fear an opinion beyond that of the AG? Apparently because being asked to have an experienced jurist review it threatens prosecutorial independence, a bedrock of the rule of law.
It is I think understandable that a government motivated to save jobs and a company might have a hard time seeing that this was crossing a line, and I have found it hard to see it that way myself, but the weight of media opinion is that the PM and PMO did something very wrong, whatever their motivation. Attempts were made by Jody Wilson-Raybould to tell them this, but they did not hear them. The advice they were receiving, according to the testimony of Michael Wernick, the Clerk of the Privy Council, was that they were within their rights to pursue the negotiation of a DPA right up until the courts had rendered a verdict on the case. The consensus is then that this was bad advice: nevertheless, it was the advice they got.
What we had then was two groups trying to do a good job for the country, with different views on how to do it, failing to communicate successfully, so that that irreplaceable and essential commodity, trust, was lost. More than one marriage of two well-intentioned people of integrity has foundered on the rock of failed communication, pride and lost trust.
Rather than expel anyone from the caucus, surely what was needed here was a good long late-night talk where the genuine good intentions of each can be understood by the other, and mutual respect and trust can be restored. (Unless of course, there was already a third party and another agenda driving the divergence of the ways?)
We are told that was tried. The Prime Minister says he was patient, but the two sides could not come together, and mutual confidence could not be restored: a divorce where both sides would go on to rebuild their lives was the only solution. It is in any case where we now stand.
As always in such cases, some friends will take sides, some will try to support both sides. This is different however, because the Liberal Party has not only friends but enemies, and the Opposition parties have a vested interest in having this version of the War of the Roses (the Michael Douglas film, as much as the conflict over the throne of England) continue to play out in public. The media have, perhaps rightly, staked out prosecutorial independence as a central bulwark in our democracy, and are going to ensure that the party that initiated this divorce gives up significant assets, and pays alimony and child support for a very long time.
This will be a major factor in the upcoming election. This government has much to be proud of. It faced one of the greatest challenges to the Canadian economy in our history when the US administration threatened drastic changes to NAFTA, and it devoted all of its resources to navigating that challenge, arriving at a successful conclusion, though there is still work to do. This was all-consuming, and distracted from other files, likely having an effect on the handling of the SNC-Lavalin affair. It has been instrumental in making real progress in poverty reduction. It has taken a brave and principled approach to counteract climate change, in spite of political risk. Time and again it has done the right thing even though it is difficult.
I think they were trying to do that here. If Jody Wilson-Raybould had accepted an external review we would not be here. It was a reasonable request; she could have acceded without characterizing it as a threat to prosecutorial independence. (She was assured that she would have the final say.) No one is innocent in any divorce, but pride and intransigence are often the cause. There is a time for principle to be unbending. This was a time for a little mature flexibility.