It’s been another week of high drama in politics. Albertan’s concerns over allegations of impropriety surrounding Jason Kenney winning the leadership of the UCP have been swamped by accusations that Justin Trudeau violated the rule of law in his dealings with Jody Wilson-Raybould over the prosecution of 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 this illegal conduct in the future and it’s going to be punished one way or another so it’s been lobbying hard for a Deferred Prosecution Agreement (DPA) to avoid going to court.
Jody Wilson Raybould
Kathleen Roussel, the Director of Public Prosecutions (Prosecutor) decided against a DPA. Jody Wilson-Raybould (JWR) supported the Prosecutor’s decision and the prime minister, his staff in the PMO, and others were not happy about it.
JWR was shuffled out of Justice into Veterans Affairs and quit cabinet. Last week she appeared before a parliamentary justice committee 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 this Canadian respects JWR, I do not fully understand her view. Here’s why.
The testimony
JWR’s testimony is clear on the facts. She wears two hats. She’s the Justice Minister (a political role) and the 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 JWR has prosecutorial discretion. She can issue directives to the Prosecutor on specific prosecutions or take over the prosecution altogether as long as she gives notice she’s doing so in the Canada Gazette. In other words, it is perfectly legal for JWR to tell the Prosecutor how to prosecute SNC—whether to go with a DPA or go to court.
JWR confirmed it’s 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 were not happy with her decision to support the Prosecutor’s decision to take SNC to court and over the course of four months contacted her and/or her staff 20 times to discuss other “solutions”.
JWR says these contacts amounted to undue pressure and were inappropriate.
The Prime Minister and JWR agree that the PM did not direct JWR to change her mind on SNC, leaving the decision up to her. They agree there was significant contact between JWR and/or her staff and other cabinet ministers, their staff and the PMO, but they disagree 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:
- JWR could talk to the Prosecutor about her decision not to offer a DPA.
- A member of JWR’s staff could “reach out” to Department of Public Prosecutions to discuss the Prosecutor’s decision.
- JWR (in her capacity as Attorney General) or the Prosecutor could hire external counsel, a retired Supreme Court of Canada judge for example, to review the Prosecutor’s decision not to offer a DPA.
JWR offered her own solution. She said SNC could send her a letter and she’d forward it directly to the Prosecutor. It’s unclear what she expected the Prosecutor to do with it.
The first two suggestions are silly given JWR’s position she wasn’t going to change her mind and intervene to make the Prosecutor offer SNC a DPA. However, this rationale undermines JWR’s own solution that SNC could send her a letter and she’d forward it to the Prosecutor. All three suggestions create the impression she might reverse her position when it’s clear she won’t.
The solution of an external legal opinion from a retired judge makes sense given the legislation was new and there was no precedent governing how the DPA process should work. However, JWR 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 will 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 JWR rejected the opportunity to test Prosecutor’s decision with outside counsel, if the opinion supported her position she’d be vindicated, if it 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 Prosecutor refused to offer a DPA to SNC. We’ll never know whether 20 phone calls and meetings over four months with JWR and/or her staff created “undue” pressure or was normal interaction on a ground breaking issue. We’ll never know why JWR 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 JWR characterized the pressure as “inappropriate” but not illegal.
We also know opportunistic politicians are twisting JWR’s testimony to allege the PM tried to get JWR to betray her duty to uphold the law, this is nonsense because she would have upheld the law whether she supported the Prosecutor’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 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 for the Trans Mountain pipeline.
On-line conspiracy theorists speculate this is an effort to replace Trudeau with Chrystia Freeland in order to deliver Canada into the hands of her “good friend” George Soros.
Unless we get more information, this hearing is nothing more than political spectacle, bread and circuses that distract Canadians from issues raging in their own backyards.
Susan on the Soapbox 
Susan: Thanks for another great blog. I must say that Canadian politics can be very ugly at times. In relation to the federal Liberal, SNC Lavelin issue, the courts will have to decide what happens next, and what the verdict is. Sadly, this also will be used by many Albertans as an excuse to support Jason Kenney and the UCP, because they feel the Conservatives do nothing wrong, and other political parties do. Given the fact that the Alberta PCs, starting when Peter Lougheed was not the premier, had a very poor fiscal record, and we still have to pay for their many wrong doings, Jason Kenney was also not the greatest in the CPC, and the UCP are awash in controversies, on a regular basis, it proves otherwise. One longstanding issue with many Albertans, (but not all), is when the federal government, especially the Liberals, do something wrong, which pales in comparison to what the Conservative parties in Alberta do, there is instant outrage, which lasts for many years. The same thing applies to the provincial NDP. Many Albertans let the Alberta PCs make a big mess, and blame Rachel Notley for the Alberta PCs straying off the sound path of Peter Lougheed. Then, when the Conservative parties in Alberta do something wrong, which is far worse, it is swept under the carpet and expected to be brushed off. The Alberta PCs, since the time Don Getty was in power, were known to do the worst kinds of scandals, that lost millions and billions of dollars. A couple of good examples would be electricity deregulation, which was well over $30 billion, and the money lost on a petrochemical (bitumen) upgrader, which was around $35 billion. Yet, the SNC Lavelin issue is on their minds. That or Rachel Notley spending far less on rail cars. Selective outrage is what it is. Jason Kenney also was not an innocent bystander when the CPC made big mistakes. I recall things such as an income trust scandal, that was around $35 billion. Jason Kenney also helped do other big mistakes in the CPC. The auto sector bailout, that lost billions of dollars, more support of TFWs (Temporary Foreign Workers), helping rack up Canada’s debt to nearly $170 billion, and many other things. Yet, I’m sure there are many in Alberta who would like this ignored. It is so sad.
Dwayne, “instant outrage” is the perfect description of what’s going on here. The media and many members of the public made up their minds about what transpired after hearing JWR’s testimony. They paint Trudeau as the villain and JWR as the heroine, but as I said in the post we don’t have enough information yet to jump to that conclusion. That’s not to say there isn’t a problem here, it’s clear from JWR’s testimony that she felt she was under undue pressure. What I don’t know is whether undue pressure in the absence of a clear direction from Trudeau to tell the AG to give SNC-Lavalin an opportunity to negotiate a DPA is enough to support the Conservatives’ argument that Trudeau ran roughshod over the rule of law. Black’s Law Dictionary says the rule of law provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. JWR had the flexibility under the legislation to intervene in how SNC would be prosecuted if she disagreed with the Prosecutor. She did not disagree. Trudeau did not direct JWR to change her mind, but I do agree that some staffers, especially the Clerk of the Privy Council, were pretty heavy handed in how they discussed the case with JWR. Perhaps the concern is that these discussions continued AFTER she’d made her decision but I’m not sure why this is so damaging. Lawyers have been known to change their minds, especially if they get an external opinion that presents the legal issues in a slightly different light. We call it “upon further reflection, I’ve decided….”
Anyway, we need more facts before we go along with Andrew Scheer’s suggestion that Trudeau should resign.
Oh, it is so damned inconvenient to have a saint in the neighbourhood. All the conventional nods and winks suddenly come out into the daylight. Not that I am implying anything about your considered alternatives……
Shakespeare has Brutus say “not that I loved Caesar less but that I loved Rome more.”
More power to JWR, when she is juxtaposed against the creepy, crawlies that infest political life it is no wonder that they cringe.
Way to go, Wonder Woman!
Blair, as I said this is a messy situation but I haven’t seen enough information to justify the argument that Trudeau violated the rule of law.
I haven’t finished my research on situations in which the AG intervened in a prosecution but I did come across this interesting fact: prime minister Mulroney directed his chief of staff Norman Spector to tell Justice Minister/AG Kim Campbell to reopen the David Milgaard case after Campbell had refused to do so. Campbell justified her decision not to reopen the case with this: “I’m convinced the trial was fair, there was no evidence of a miscarriage of justice.” Spector told CBC that Mulroney directed Campbell to reopen the case after Mulroney was accosted by Milgaard’s mother.
If Andrew Scheer is right that Trudeau is not allowed to use undue pressure to get the JWR to intervene with the Prosecutor on how to prosecute SNC, then Mulroney was way off side the rule of law when he directed Kim Campbell, through an intermediary, to reopen the Milgaard case after Milgaard had been tried and convicted of murder in a court of law.
Here’s the link of the CBC interview with Spector and others https://www.cbc.ca/player/play/1446731331933
Could the government have given SNC-Lavalin clemency, absolving them from the restrictions on government contracts (but maybe not the fines)? This might have been less scandalous than the current situation.
Keith, it’s my understanding that a Deferred Prosecution Agreement would work along the lines you suggested and would been even less controversial than clemency because a DPA would not let SNC off the hook. Under a DPA SNC would be hit with a substantial fine and would be bound by a number of conditions which would be monitored to ensure the company behaves ethically. If SNC violated any of those conditions (for example, an executive bribed someone else) the criminal prosecution would continue because the prosecution is just “deferred” not dropped and the executive involved in the bribery would be criminally prosecuted. A DPA would keep SNC on the hook for a long time without banning it from bidding for government contracts.
Interestingly JWR’s testimony indicated the individual prosecutor working on the file wanted to give SNC a DPA but his/her boss (the Prosecutor) did not. Without knowing more about the file it’s hard to determine why the Prosecutor thought a DPA was not appropriate here. It has worked in other countries like the US, the UK and Germany.
The part missing in your well-written argument, it seems to me, is that PPS had already decided to prosecute SNC-L on the basis of its investigations. JWR as AG would have to overrule that decision and Gazette the reasons why she was doing so. Surely a decision to overrule an independent prosecution service on one of its prepared cases is not something to be taken lightly by any AG, even if high level pressure is being applied for her to do so.
It is not the AG’s principal role to decide who is prosecuted or for what; that is why the Public Prosecution Service was established as an independent entity in the first place; there were/are too many cases and too much work, and political intrigues should not be allowed to interfere. Nor would one expect an AG to routinely direct the work of the PPS for that same reason. I imagine the PPS personnel would object mightily if every decision they made to prosecute was second-guessed by an overactive AG.
The introduction of a Deferred Prosecution Agreement Bill buried deep in a budget document last year, meant only for the benefit of larger corporations to substitute fines for executive jail time or other corporate penalties for criminal behaviour (as in other neoliberal governments in the UK and US which are effectively run for corporate executive benefit to all outward appearances) seems to have arrived after the initial decision to prosecute by the PPS was made. So back-dating legislation applicability seems to be what JWR is objecting to.
I think it would fit with her philosophy, some of which I’ve read. In fact, she has written a splendid foreword essay on the role of the AG in Charter litigation at:
https://www.justice.gc.ca/eng/csj-sjc/principles2-principes2.html
While not directly bearing on the SNC-L case, it’s well worth reading, because it delves into continuity between governments of different stripes and on a number of other issues in which she stresses legal continuity to avoid in-the-field judicial confusion. It’s very clearly written, and gives some idea of the mind of JWR at work. It’s not lightweight fluff but written well enough to be understandable.
Better read it soon, because other pages seem to be getting Lametti-ized. I’ve kept the .pdf version myself.
Excellent observations all Mr.Malcolm.
In light of them, I’d say this can only bolster the case of ‘conspiracy theorists’ who see this latest scandal, especially when combined with the utterly incredible “Deferred Prosecution Agreement Bill”, as clear evidence Canada is more plutocracy than democracy.
Tommy Douglas was right: Canadians are Mice having only a choice between different breeds of cats… but who knows, perhaps this federal ballot completely fed up Canuks will 180 the US’s last election, and elect the NDP to power. I’m not holding my breath, mind you.
GoinFawr – you are assuming that an NDP win would take us out of our mice role.
I have serious doubts 🙂
I have no doubts Canada is a plutocracy although with more class than the US. We tend to do things more on the British style rather than the rude Yanks. 🙂
Just like in Alberta we will learn the hard way that we do what the corporations tell us to do or we suffer the consequences.
I know very little about these issues involving law because I personally cannot see justice in our so called justice system. I just see a maze of rules designed more and more to serve the plutocracy. Harper did not miss a chance to do that.
So to me the fact that someone is trying to do anything possible to avoid losing jobs instead of penalizing the company for what they reckless did is a travesty. It does not seem that the Business community thinks the same way. This to me creates then the systems like Colombia and others where it is basically impossible to get it corrected unless a radical revolution happens. Colombia has been at it for 50 years.
I believe we are already in a very difficult position.
Carlos, you raise some important points here. I’ve talked to quite a few business people about the SNC situation. They think it’s silly to prosecute corporations for bribery and corruption when doing business in other countries. They adhere to the adage “when in Rome do as the Romans do”. Sadly the people saying this aren’t just the executives who could get their hands on the kind of cash you’d need to bribe a senior public official but the workers who think we’re all naive about the realities of doing business in places like Africa, Russia, parts of Europe and the Middle East. Very discouraging.
GoinFawr, this mess (which just got worse with the resignation of Jane Philpott as Treasury Board President) may well force Canadians to rethink who they want to support in Oct 2019, who knows they might even vote Green.
Bill you’re right, s 15 of the Director of Public Prosecutions Act would require JWR to Gazette her decision to intervene or override the decision of the Director of Public Prosecution to prosecute SNC. The Act sets out the procedure and addresses the concerns you’ve raised about an overactive AG second guessing all prosecutions and an AG intervening after the DPP has made the decision to prosecute. S 13 says the DPP must notify the AG of a prosecution or intervention that raises questions of important general interest (so the AG wouldn’t be involved in routine decisions). S 14 allows the AG to intervene in the first instance or on appeal, so the AG is free to intervene quite late in the process. The only requirement is that she Gazette her decision (interestingly, publication in the Gazette can be delayed in “the interests of the administration of justice”). Bottom line, the AG has a lot of latitude.
Thanks for the link to JWR’s forward on the role of the AG. It was illuminating. I liked how she defined the rule of law to mean no one is above the law. I would be interested in Andrew Scheer’s explanation of how Trudeau violated the rule of law in this case given that JWR’s statement that yes, she was under undue pressure but no, it had not crossed the line into illegality. That tells me as far as the AG is concerned she doesn’t think the PM violated the rule of law.
After I wrote that and hunkered down for a snowstorm here in Halifax, I saw a TV clip on the Commons Committee hearing, where JWR specifically said the pressure was applied to her as AG, in her opinion. That by definition is not legal. Perhaps her other statement absolving the PMO and followers from having violated the rule of law was from an internal conflict she felt due to her dual role. She pretended, in effect, that although the pressure was applied to her as AG, she would treat it as pressure on the Justice Minister. Hell of a conflict to sort out in one’s mind.
But she, I think, is playing more than fair with her colleagues. What we haven’t heard is what happened after she was demoted to VA, and what triggered her final resignation. She’s not allowed to talk on this to the Committee by the terms agreed with JT to allow her testimony as AG/Justice Minister.
I’ve dug a lot of snow and am still not finished! Tomorrow.
But after some hours hoisting the white stuff, I came back inside to discover Philpott had resigned as well! Now I wonder why Brison resigned. He said it was to spend more time with his family here in NS. Then got a plum job with BMO in Toronto.?????
Intrigue.
Bill, things got even more interesting today with Gerald Butts’ testimony. I thought Butts made three good points (1) the PMO and PCO had legal counsel advising them about what they could safely say to the AG without crossing the line, (2) as this unfolded they were suggesting JWR get an external opinion from an former Supreme Court of Canada judge like Beverly McLaughin, (as I said above I think this makes good sense in a case without precedent), and (3) JWR was shuffled because Scott Brison resigned, the only credible person to replace Brison was Jane Philpott who had been vice-chair of Treasury, and the only credible person to replace Philpott in Indigenous Services was JWR. JWR turned down IS because Justice/AG was her “dream job” and IS was not. Butt says none of this would have happened if Brison hadn’t left. As you point out Brison was offered a plum job with BMO and the dominoes started to fall.
Unfortunately JWR can’t talk about what happened after she accepted Veterans Affairs so we still don’t know everything. The intrigue continues.
Here’s a link to Butts’ testimony https://medium.com/@gbutts2019/statement-to-the-house-justice-committee-681bec98e9b?sk=f8c220a2638119d758e16d8f489971de
Ms Soapbox: with the utmost respect, as I always enjoy your blog posts, and I also know you are also a lawyer, I disagree with your fundamental position that there is nothing untoward about the pressure that seems to have been put on JWR in this matter.
It is true that there is nothing wrong with other government Ministers, including the PM, and officials like PMO and PCO staff, offering her advice and counsel on this matter. But, if you believe her testimony before the Committee—and I do—they went further than that. When, after numerous representations from many different people, she told them to back off and that her decision, which was not to overrule the DPP, was final, they didn’t. That the “advice” she was given was actually veiled pressure and threats is proven, IMHO, by the fact that after she refused to act on that so-called advice, she was demoted to a lower-ranked Cabinet post.
Back in the day, when I was a Union activist and grievance officer, the decision on how voluntary or mandatory a request from a manager was, hinged on consequences for non-compliance. An employee need not be actually disciplined; being denied a promotion or a new job, or downrated at annual performance appraisal time, due to such non-compliance, would be enough for me to argue that the request was not fully voluntary. The same applies to JWR. Despite the government’s and the PM’s denials she was given direction to change her decision, and all their proclamations that she had complete, unfettered discretion in this matter, the fact she was demoted to Veterans’ Affairs is all the evidence I need that she was in fact given “direction” by other means. As a lawyer might say, res ipsa loquitur.
Jerrymacgp: you’re right, we usually agree on most things so I’d like to thank you for disagreeing in a respectful way that allows us to explore our differences.
Let me start by saying I believe everything JWR said in her testimony. I believe the facts she shared–dates and details of conversations she or her staff had with 11 others including the PM, the Finance Minister and the Clerk of the Privy Council–are accurate. I also believe she’s telling the truth when she describes how these conversations made her feel. She felt the level of pressure was inappropriate. No one can refute how another person feels. My point is this: she stuck it out, she did not resign. This is consistent with her position that while the pressure was inappropriate it was not illegal (presumably this is why she didn’t resign on principle from her post as Justice Minister). She didn’t resign until after she was transferred to Veterans Affairs and the issue of inappropriate pressure became moot. This doesn’t make sense, why resign on principle when you’re no longer in the job, especially since she said she would have resigned immediately from VA if her replacement at Justice gave SNC a DPA, he didn’t and she quit anyway. If she stayed on as a cabinet minister she could have continued to speak her truth to power. Cabinet is like an executive leadership team, people chime in on other people’s portfolios.
I agree with your point that one need not be fired in order to be disciplined. I see JWR’s transfer to VA as directly related to her performance in Justice. What I’m not clear about is whether the transfer was entirely the result of her refusal to intervene with the Prosecutor or whether the fact she refused to consider getting an external opinion from a retired SCC judge was also a factor. The fact she refused to retain external counsel creates the impression that she didn’t like to being second guessed by anyone, not even a retired SCC judge, this may have been the last straw for the PM. But we’ll never know because we don’t have enough information.
Well, now we do have one more little tidbit of information… the resignation of Jane Philpott from the Trudeau Cabinet. I get a sense of the wheels coming off.
Thank you! Finally, a proper explanation. On a much smaller level with less consequences, when I worked at Crown Counsel and it came to the laying of charges, 20 phone calls and 4 months to come to a decision is nothing.
It’s interesting because Ive seen the news coverage of this and Ive been feeling that an airing of what really transpired can not be covered in news bites. Also, there will be confidentiality issues so how are we, the public, going to get a true airing of the facts.
When I was reading this and read about the option of a second opinion from a Supreme Court Justice, I thought that’s what I would have done. I mean, CYB, cover yout butt.
Thanks Joanna. Like I said, we’ll never know all the ins and outs of what happened. Let’s face it if we discovered that part of SNC’s pattern of bribery was providing sex slaves to key public officials I too would be horrified if they got a DPA instead of court, but we’ll never know.
And yes, part of the value of a second opinion from a legal expert is the CYB factor.
Thank you Susan for your informed opinion. It’s helped to clarify a confusing issue for some of us.
Thanks Jo-Ann. It’s hard to figure out what’s going on in politics anymore and the 24/7 news cycle has erased any opportunity to analyse and think.
I have found it hard to believe the traction this story is getting. The nine of the first eleven pages of the Globe and Mail last week were completely about the JWR testimony (another was a full page ad). I don’t believe 9-11 got that much! The chattering classes were having a heyday and wild speculation has been the order of the day. This is way over the top and the media really need to take a look at themselves.
Joe I agree. It’s interesting you drew a comparison to the 9-11 coverage. We were in the US then and one thing I remember about the 9-11 coverage was the media’s focus on each and everyone person who died. The papers were full profiles of this person and that person who happened to be at the wrong place at the wrong time. I thought of that when I saw Post Media do an “in depth” exposé of the 11 people who has some contact, direct or indirect with JWR or her staff. They started with Justin Trudeau and worked their way down to a low level staffer whose name I’ve forgotten and whose role in the piece was trivial. It was as if they were trying to create the impression there was a conspiracy to bring poor JWR down. The media really need to get a grip.
Susan, I’m wondering what you make of Jane Philpott’s resignation from cabinet over the SNC-Lavalin affair?
MoS, I just saw this announcement and it’s troubling. Jane Philpott clearly links her decision to resign to the pressure on JWR to intervene in the SNC-Lavalin case so once again everything hinges on whether JWR was “subjected to political pressure or interference regarding the exercise of her prosecutorial discretion”. I don’t know what Ms Philpott knows that we don’t know but JWR’s statement that she was subjected to inappropriate pressure but it wasn’t illegal hasn’t pulled me over the line yet.
That being said Ms Philpott also said this: “In Canada, the constitutional convention of Cabinet solidarity means, among other things, that ministers are expected to defend all Cabinet decisions. A minister must always be prepared to defend other ministers publicly, and must speak in support of the government and its policies. Given this convention and the current circumstances, it is untenable for me to continue to serve as a Cabinet minister.” The fact she says “this convention and the current circumstances” make it untenable for her to continue to be a Cabinet minister makes me wonder whether there is something else going on.
Here’s a link to Ms Philpott’s resignation letter: https://www.ctvnews.ca/politics/read-jane-philpott-s-full-resignation-letter-1.4321826
Yes I agree and what I think is going on is that the system is a joke and the government is locked in the hands of big money and big corporations. Much more than they even know. I think that the realization that we need great reforms is starting to hit everyone including ministers with some kind of soul like JWR.
Cabinet Solidarity is a political/party principle and convention, not Constitutional. Put another way, it would not be a violation of the Constitution to disagree with a Cabinet decision; but it must by party tradition (all parties) that you do it from outside Cabinet.
Very clear and fair-minded explanation of the issues
Thanks Cathleen, given that the “rule of law” is at the heart of this issue I really wish more lawyers would chime in.
Susan, it is very obvious that something happened, after JWR’s demotion, that triggered her resignation but until the gag is removed, we will never know.
Marilyn, I agree, we now know from Butts’ testimony that JWR was originally offered Indigenous Services but turned it down because she’d spent her life “…opposed to the Indian Act, and couldn’t be in charge of the programs administered under its authority.” Butts said he understood JWR’s position and talked to the PM to find another alternative. As you say something must have happened that caused her to accept and then resign from VA.
It’s a shame she turned down IS…she obviously respected Philpott who’d previously held the role; given JWR’s perspective she may have been able to make some real progress with that portfolio.
This is where the conspiracy theorist in me comes out of hiding. Are the two of them (JWR & JP) conspiring to bring Trudeau down?
Jo-Ann, god only knows anymore, but it bothers me that Philpott resigned before Butts and others had a chance to give their testimony. Interestingly Butts said Philpott was excited by her move and that JWR “was an excellent choice for Indigenous Services”. Butts also said Philpott worried that JWR would see it as a demotion” connected to the SNC case. Butts says this was the first time anyone suggested such a connection. He said if Brison had stayed put no one would have been moved anywhere. Interesting, eh?
Indeed!
I find your explanation very interesting and obviously from a perspective of a person that knows the ins and outs of the current system.
The problem is that you are a lawyer and so you look at the issue in a different way. For a person like myself I do not have any problem understanding why JWR did not want to propose a DPA to Lavalin. Like me, she probably believes that they violated the law and should pay the price for it. She is a lawyer but she believes in a different kind of justice, maybe due to the fact that she is an indigenous person and they were never given any breaks when facing the law. On the contrary.
Corporations and businesses have been elevated to a special status in our country and they certainly take full advantage of it.
In my opinion the issue of creating jobs is irrelevant when we are talking about braking the law.
There are a lot of issues with corporations breaking the law but governments choose to let it go and concentrate on the other citizens only because the owners of these corporations are in bed with the kinds of the PM and others.
JWR is probably too truthful to herself to play that fiddle and she thinks about the future of Canada and not just her bank account. If that is the case she has my full support as she seems to have from most other non-privileged Canadians.
Someone suggests conspiracy theory, I just believe that time has come to get our Democracy, our values, morals and ethics back on track before we become another banana republic. It does not take long. I think we are well into the process already.
Carlos, you raise important points. You’re right I do view this situation through the lens of law because at it’s heart it concerns the rule of law. If JWR as AG believed the PM and others violated the rule of law she had a duty as AG to warn the PM in writing; if the PM and others didn’t stop she had a duty to resign and make her position public. She didn’t do that, in fact she said she didn’t believe the “undue pressure” was illegal. If we’re talking about the rule of law, we need to talk about what kinds of actions violate the rule of law, otherwise leaders who don’t violate it will be thrown out and those who do violate will be kept in power and we’ll be none the wiser.
You’re right that JWR has a unique perspective by virtue of being an Indigenous person herself. At the end of her testimony she said her understanding of the rule of law has also been shaped by her experience as an Indigenous person and the history of Crown-Indigenous relations which she said includes a history of the rule of law not being respected. My concern with this is: is this relevant–what if the AG was a gay man who hadn’t been allowed to marry his husband until 2005, or an Asian person who’s family had been interned during the war, would we agree that their personal history should inform their understanding of the rule of law?
I 100% agree that it’s a terrible mistake to elevate corporations and businesses to a special status simply because they provide jobs. Instead of focusing on giving breaks to the “job-creator” (as Jason Kenny would say), let’s focus on ensuring citizens have access to education, healthcare, etc so they can be productive members (and workers) in our society.
Susan I agree with you believe me – I understand that your view is the correct one in the present context. The problem is that I do not like the way our justice system works because I strongly think that many lawyers and judges take advantage of it for their own benefit and justice gets lost in translation. I do not have the knowledge or the skills to offer a better alternative but I do believe there is a better way. I think that just like the corporations having a hold on our economic system, lawyers have control over our justice system as well. Please believe me that it is not my intention to be disrespectful to you or the profession but many Canadians think like myself and I am sure you know that. It is not any different than the control that doctors have over our health care. A lot of changes that could be very beneficial to all of us are not done just because it reduces the access that doctors have to our health care dollars. Never mind the commissions on drugs.
I think that in the last couple of decades all these issues have become worse because of the fact that Conservatives and Liberals do not believe in regulation and civilized standards of living and prefer to let the market decide what is best for us individually and the rest will fall in place. Well I do not believe that at all and I know that left without some oversight and some regulation we will fall into mafia style societies which in most cases are irreversible. If you think that here we have a hard time changing some of these injustices you should see what it is like in countries where they are basically unregulated. I have had that experience and I am passionate about trying not to go that route. It is crazy and we are slowly damaging our wonderful country just because somehow we have been brain washed to believe that no taxes and no regulation is good for all of us. IT IS NOT
So going back to the point I fully understand your example of the gay person and I agree with you but I am one of those that I do not believe that any human being can actually do that and act as if one is impartial to past experiences. Depending on the level of trauma experienced, in some cases it is impossible. Living a fairly normal life yes but totally impartial NO.
Yes lets educate our citizens and help them along and they will create the jobs we need. Being a slave of big corporations is the worst mistake we make and in Alberta we are addicted to it and in many cases we have no choice.
If we had a healthy democracy these issues would at least be discussed. This is why Proportional Representation is so crucial because it allows smaller parties to put pressure in parliament. Like it is we have white wine or higher alcohol grade white wine. Change is almost impossible.
Thank you for reading and for your opinion – I do agree with you but I also have a different view of the overall picture. Is it a fair one? I would like to think so.
This argument seems premised on the notion that SNC-L has a lock on government contracts. In SNC-L goes down those contracts what, evaporate? SNC-L employees might not get to work on those contracts but some other company will win that work and will hire and employ the people needed to perform the work. In fairness, SNC-L’s major rivals seem mainly Alberta and Ontario-based. SNC-L has threatened to pull up stakes and move to London but that’s hard to imagine given the World Bank has put them on ice for the next decade. It strikes me that, if SNC is barred from Canadian government contracts that will mainly impact the company’s shareholders and its creditors and, of course, Liberal fortunes in Quebec.
Thanks for another well written column, Susan.
In your research, did you happen to come upon the history of the ‘do not pay bribes’ law that started this whole mess? I am curious about which government passed it. For the life of me I cannot visualize Stephen Harper passing a law that imposes restrictions on a corporation.
This would certainly not excuse Justin Trudeau for politically interfering with the justice system, but it does make Andrew Scheer’s ethical criticisms of it a bit hard to take.
Bob, the Criminal Code has had anti-bribery laws on the books for a very long time, the Chretien government passed the Corruption of Foreign Public Officials Act in 1998 to make it easier to prosecute people who bribed foreign officials. In the 2018 Budget, the Trudeau government added amendments to the law to allow the Crown to negotiate Deferred Prosecution Agreements. Apparently this was after a consultation period in the fall of 2017 which showed “strong public support” for DPAs (I have absolutely no recollection of this whatsoever). Lawyers say DPAs make it easier to address corporate crime because the Crown doesn’t have the time, money or expertise to take on complex cases, especially in foreign jurisdictions when the will to cooperate is limited.
So to answer to your question, if the Conservatives think DPAs are bad, they should say they’re going to repeal them if/when they are elected.
I don’t know about you but I’m not holding my breath!
Thanks for taking the time to look that up, Susan. It was the bribery of foreign officials, as opposed to bribery in Canada, that I was wondering about, and you came through wonderfully.
Thank you for all the work you do.
This is the most objective, thorough and level-headed synopsis I have seen on this issue. Thank you.
I would like to add a couple of additional points:
1. The case has been mistakenly labelled by many as a would-be abandonment of criminal prosecution in favor of a negotiated settlement. Not so. It is DEFERRED prosecution, which is perhaps best framed as “PROSECUTION UNLESS”, that is, if a negotiated settlement process fails to meet the tough requirements set out in the (amended) Criminal Code, then criminal prosecution proceeds.
2. It does not matter that SNC Lavalin has been a bad actor. Indeed, the VERY PURPOSE of the negotiated settlement is to explore resolutions that address the bad acting without punishing innocent victims (in the Code: “employees, customers, pensioners and others”). In fact, the first condition for negotiated settlement is that there would be a reasonable prospect of criminal conviction.
3. Some have wrongly said that considerations in deciding negotiated settlement cannot address economic impacts. Not so. The claude where this is mentioned says “national economic impacts”, and this is juxtaposed against “Canada’s relations with other states”. Thus it means MACRO impacts and relations. This is very different from local and direct and impacts on employees, customers, pensioners and others…the very stated purpose of the provisions.
4. The “Shawcross Principle” makes it clear that an Attorney General not only can but for all practical purposes MUST consider impacts on “public morale and order” (interpreted to be the public interest) and this calls for active consideration of all significant impacts, for which perspectives of others (including PM and Minister’s) may well need to be communicated, indeed possibly clearly and strongly.
5. While the decision to decline the option of negotiated settlement was made, it is under appeal, so presumably more consideration of factors is justified until a FINAL decision for criminal prosecution is reached. So not too late for more engagement for the AG to understand allimolications. These, by the way, go beyond matters that Lavalin itself might be concerned with, e.g., impacts on employees, suppliers, community, etc., so other parties may need to weigh in.
6. The former AG claims that she did her duex diligence. But she offered not a single whiff of even the kinds of factors she addressed. Just as I will not take the word of the Clerk that no undue pressure was exerted, nor will I accept that the former Attorney General handled the case well, particularly given the new provisions in law. Surely there would be no meaningful down side to pursuing negotiated settlement. If successful, great. If not, proceed with criminal prosecution.
7. The issue of conflict with the distinct roles of Attorney General and Minister of Justice is an important issue but largely a distraction. The Shawcross Principle derives from the UK case (which applies in Canada) where the Attorney General is not only separate, but not even member of Cabinet. And STILL can and should approach and be approached to ensure full consideration of impacts of a major and sensitive prosecution.
Excellent points J. Phillip. With respect to #6 let me add that SNC applied to Federal Court to quash the DPP’s decision not to enter into DPA on the fact the DPP offered no explanation of its decision ie. SNC is in the dark as to which criteria set out in the legislation it failed to satisfy.
The PM sent JWR a letter on Dec 7, attaching a letter from SNC dated Oct 15. (SNC filed its action on Oc 19). JWR responded to the PM saying “the matter is before the courts, so I cannot comment on it…and…the decision re: a DPA was one for the DPP, which is independent of my office.”
JWR’s response is bizarre for two reasons (1) it’s true the government won’t discuss ongoing litigation with the media, but there’s no reason why the AG can’t discuss ongoing litigation with her PM (the PM is not a reporter) and (2) section 14 of the DPP Act allows the AG to intervene “in the first instance or on appeal” so the AG was still free to intervene if she wanted to (lawsuits are temporarily stayed or settled all the time).
If nothing else, this little exchange illustrates why it would have been smart for JWR to get an external legal opinion from someone like Beverly McLachlin.
Expressing logic to the clamouring is impossible. Don’t spend more that a second or less trying to understand what is going on. It is a tempest in a teapot but it is entertaining the masses.
Kinda like Stampede Wrestling.
The real issues are a lot more dangerous. The UN says fix Climate Chsnge in twelve years or we are done and we argue about SNC.
ARE WE IDIOTS!
I agree Fully and YES we are IDIOTS – How can you explain what is going on everywhere if we are not? 🙂 🙂
Don and Carlos, great point, existential issues like the destruction of life as we know it are looming on the horizon and we’re arguing about who said what to whom and what they meant when they said it. Time to give our heads a shake. I wonder whether Elizabeth May (who is a politician with a lot of integrity) can hammer this point home before it’s too late.
Hey Don,
I’m not fussy for your idiot comment, but otherwise I fully agree with your sentiment. Andrew Scheer is pushing this issue hard with a message that boils down to ‘Vote for me instead.’ Given Mr. Scheer’s mentor’s legacy of addressing climate change by muzzling scientists, and Scheer’s own campaign promises to undo the baby steps the Trudeau government has taken, a CPC vote from me is simply not going to happen.
Yes Scheer is actually worse than Harper – here is a good start
https://ipolitics.ca/2018/05/03/why-andrew-scheer-will-never-be-prime-minister/
Susan, in your reply to Carlos, above, you mention the usual excuse of “the realities of doing business in places like Africa, Russia, parts of Europe and the Middle East”, as do some writers of letters to various editors. So how do you regard the still active cases of the bribes in the Montreal hospital and Montreal bridge contracts? Just a couple of bad apples who are no longer with the company? It’s been company policy at SNC for years. To those of us in the Rest Of Canada, of course, it’s seemed to be the reality of doing business in Quebec.
I agree and that is why I think it is time to put an end to it or at least try harder.
No more excuses no more side deals. You commit a crime and you pay the full price for it. Maybe that will go a long way to help end the problem.
Michael, fair question. The Montreal charges relate to activities the company did in the early 2000s, the Libya bribes occurred between 2001 and 2011. So it does appear that a culture of corruption was the norm for SNC executives involved in both international and domestic operations. It’s hard to say whether this culture has changed, and this may be why the DPP refused to consider a DPA re: the Libya charges.
Based on my corporate experience, it is possible to change corporate culture, but it takes a long time and there has to be an incentive to make it happen.
Rosenkrantz and Guildenstern are dead!
Today the tragedy of the Trudeau cabinet has devolved into low farce rather than high drama. All that was missing from this story was a scene with John Diefenbaker holding Trudeau seniors skull and declaiming in highest courtroom irony “ah, poor Yorick, I knew him well.”
Short of heavenly intervention, the short story of Justin’s career has been written.
What was evident today is that in the best of all possible worlds we would have Prime Minister Jodi Wilson Raybault challenged by Lisa Raitt as leader of the opposition.
Blair, I love your allusions to Shakespeare, but I’m not convinced this is the end of Justin Trudeau. Scheer’s conservatives are awful, Singh’s NDP have yet to find their feet and while I like Elizabeth May she’s made some really silly comments about this whole thing which tells me she’s as political as the rest of them (I guess I shouldn’t be surprised).
We’ll have to regroup in Oct 2019 and compare notes.
Years ago, when my children were little, they would get into squabbles over all sorts of things. When tempers rose I put them both into one room and told them that they could ‘fight it out’ or find a solution to their squabble. It seems to me that this is exactly what is going on in Ottawa right now. Perhaps we need to find such a room for all the people named so far and find out how they could solve the whole thing without the cameras and media getting in the way.
No one can tell another that they don’t ‘feel’ whatever it is they are feeling – sad, happy, badgered, or whatever. All that one can do is to listen to the other, try to understand what is causing that ‘feeling’ and see if there is something that can be done about it. Saying, “You are wrong” or “You don’t deserve to feel that way” isn’t helpful. In fact, it brings about exactly what we are witnessing in our country.
Anne, I agree with you–no one can tell another person what they’re feeling and that they’re wrong to feel that way. I think when Butts and the PM described this as a breach of trust they finally figured out what really happened here. It’s possible to suffer a breach of trust that irreparably damages a relationship but still falls on the right side of the law. What a shame it came to this. It could have been resolved months ago by the parties taking the time to sit down and talk it out instead of sending their intermediaries to do the job and then trying to figure out what someone said to someone else and what they really meant by it.
Overall I think this whole incident demonstrates that Canada plays a hypocritical role in world politics and should be regarded as mostly just a puppet of the USA. As an historian, I would argue that with only a few exceptions that that is who we really are. When we don’t like a regime, either because the Americans don’t like it and/or because it is hostile to foreign investment and trade, we complain that it is corrupt and unsupportive of the needs of local people. And so for example we are working with the gangsterish Lima group, led by the fascist Brazilian prime minister, to overthrow the government of Venezuela which has lots of support from other elected governments within the OAS. We led the effort to overthrow the most compassionate (and elected) government that Haiti has had in the modern period and restore the gangsters who are more open to foreign investment. During the Cold War we never said boo even once when the Americans overthrew elected governments–except ironically in little Grenada where there had effectively been an internal coup. But when our big corporations want contracts, “we” (our Liberal and Tory governments) think it is just fine for them to offer money to dictators so that we can screw the people of those countries to get profitable contracts that their taxes pay for. The cost of paying off their politicians becomes part of those contracts. We might give those companies an occasional slap on the wrist for becoming a giant corporation through completely unethical and illegal means but we then use the “too big to fail” argument to suggest that they should be dealt with leniently (obviously Jody Wilson Raybould rejected that “understanding” within the Canadian state and is paying a price for that). Meanwhile our mining companies commit atrocities in many parts of the Third World to work with dictators to steal farmers’ land and exploit workers, and it’s barely ever even news. And we happily sell arms to the Saudis to use against their own people. Even we as Canadians get somewhat screwed by this corporate view of the world that our governments embrace when our corporations and our wealthy ship their money offshore to “tax havens” quite legally because our laws are set up to allow this. So I think that seeing this incident within a framework of “rule of law” is somewhat frivolous. In our dealings with the world, we throw around a lot of words but the most hypocritical is “ethical.”
Thank you Alvin – some of what I feel but cannot express is exactly what you wrote here.
It is time that as Canadians we either try harder to fix our hypocrisy or just play the game like Americans and stop pretending we are any better.
Alvin and Carlos, I agree with much of what you’ve both said here, but I reject the blanket statement that Canada is nothing more than a puppet of the US. We lived in the US when Jean Chretien refused to follow George Bush’s “coalition of the willing” into Iraq. We Canadians were on the pointy end of the anger directed at those ungrateful Canadians who abandoned the Americans in their time of need. Most (but not all) of my Canadian co-workers supported Chretien’s decision. My Canadian boss however was of the view “we” should just bomb the Iraqis to kingdom come. I raise this to illustrate that the Canadian government doesn’t act in a vacuum when it does the things you’ve outlined in your comment. Many Canadians support them every step of the way. And that is the real problem in my opinion.
That is an important exception and ironically something good came out of a situation similar to what seems to have caused the PM to be so interested in doing a special favour for SNC Lavalin. As you may recall, the war in Iraq began just weeks before a Quebec provincial election where the Liberals looked in a decent position to defeat the PQ. It was very important to Jean Chretien who was all over the place on the Iraq issue not to embarrass the federalists by doing Canada’s usual shtick of just supporting the Americans. There had been several demonstrations of 150,000 people at a time in Montreal against Canadian participation in the war. There were decent-sized demos elsewhere too including one of 18,000 in Edmonton. But in proportional terms the anti-imperialist sentiment that would drive people into the streets was largest by far in Quebec. So yes, we stayed out of Iraq BUT we tried to make up for it by getting deeply involved in the Afghanistan war and particularly in deadly areas. We were taking some of the heat off in Afghanistan that allowed the Americans to build up their troops in Iraq. Obviously I don’t want to defend the Taliban but they had ended up in power because the Americans had decided that to overthrow the Soviet-imposed Communists in Afghanistan, they would support the religious nuts who were the ones most willing to fight against that foreign takeover. The Taliban became the “blowback” of this and there we were, helping the Americans to clean up a mess that they had created–with some help form us. If you start going through American-related takeovers from 1945 onwards and Canadian reaction versus Soviet-related ones and look at our disgusting performance on the committee monitoring the Vietnam truce after 1956, it’s clear that our public disagreements with the Americans have been few and far between. But the lesson of 2003 is definitely: get out in the streets if you don’t want our government to do its semi-automatic puppet routine.
You would think from all the outrage, the PM had ordered a mob style hit on someone. I suppose the phrase break down in trust that he used today is not a bad way to describe what happened. It is easy at this time to point fingers and hard to put the pieces back together again.
I suspect the breakdown initially started to happen when the PM’s office questioned the Attorney General’s decision. Few people really like to have their decisions questioned and it seemed to put her in a defensive position. I do suppose there were legitimate reasons to question the decision in this case – the number of jobs involved was significant, this was new legislation and the initial conclusion seemed to be reached fairly quickly, which may have given the impression to others that she did not fully consider the implications of it, whether this was true or not. Also it might have actually been a good idea to get a second outside opinion. If the Attorney General was confident in the conclusion, this may have been a good way to stop the perceived undue pressure from PM’s staff.
In reality, I think a series of mistakes and misunderstandings happened on each side. Each underestimated or misunderstood the other’s resolve and I think there was a lack of clear communication that led to this. It might have also been better if the Attorney General had sent the PM a terse memo at some point saying her decision was final, so quit having his staff hound her. He might not have appreciated it and it may not have seemed polite, but it may have finally gotten the point across to the apparently clueless and/or overly aggressive staff in the PM’s office, one of whom has already paid for his ineptitude in this mess with his job.
Personally I think while this is an important issue, it is also very divorced from the day to day reality of most Canadians. I don’t think average Canadians stay up at night thinking about the Shawcross doctrine or whatever, like they do thinking about making their mortgage payments, paying for prescriptions or daycare, etc.. It does serve the opposition very well to keep this issue alive as it damages the Liberal Federal government and to be fair to the opposition, it actually was a gift to them that so far keeps giving – most of the damage was self inflicted by the Liberals. Therefore, with an election coming up soon, I suspect we will continue to hear about this endlessly in our 24 hour news cycle until people tire of it and/or realize there are other important things we should be paying attention to.
David, I respect your opinion but I disagree with you. The fact that the rule of law is being corrupted by our most senior officials is not important to Canadians? Should not be important to Canadians?
With all due respect your opinion is very much in the usual tired and disrespectful neo liberal thought process that we have been showered with for the last 30 years and that is responsible for the attitude that is prevalent now of total distrust for authorities and government.
Carlos, I think where you and I differ on this is in our interpretation of whether the rule of law was violated. Sam Gunsch (below) sent a really good link that examines the issue from both perspectives. This may be one where we agree to disagree.
David I agree with your characterization of the events. There’s not much more I can add. The most recent iteration of this story focuses on the fact SNC sent a letter to the PM and asked for a meeting. The PM did not respond, he sat on the letter for over a month and then forwarded it to JWR. I don’t see why this is a problem. JWR testified that she herself suggested to the PM that SNC send her a letter that she could then forward to the DPP. I think the press is doing exactly what you said, whipping things up, when it could be focusing on why Andrew Scheer responded respectfully to a conspiracy theorist at a town hall meeting. The fellow said “The Clinton Foundation is part of child trafficking and child sacrifice if you study it. It is in the pizzagate. How do we get that money back?” Scheer said he appreciated the fellow’s concerns. When later questioned about this Scheer said he didn’t hear the reference to pizzagate, and yet somehow he heard “Clinton Foundation” at the start of the question and “how do we get the money back” at the end of the question. Every time a politician lets a conspiracy theorist get away with this garbage they give them strength. https://globalnews.ca/news/5036315/andrew-scheer-pizzagate-comment/
The Liberals could question the wall-to-wall Tory media attack on them by pointing out that the Tory government exempted KPMG, the country’s biggest and most corrupt accounting firm, from criminal prosecution by CRA after it was caught ought in its advising of big corporations and rich capitalists alike about how to illegally evade taxes via use of tax havens. All of those who knowingly took that advice were also spared criminal prosecution. The media paid very little attention to that story. Two retired CRA accountants have told me that they faced constant pressure not to go after the big fish when they caught them out because it would supposedly have a negative effect on the Canadian economy. But there’s the problem in the nutshell once we get beyond the question of Tories (who are horrible on all issues) versus Liberals (who are somewhat better on many issues but generally not as good as the NDP): they both regard the “rule of law” as something to be applied very differently when it involves we little people versus when it involves the big fish. Frankly even amongst “we little people” social class and skin colour mean that the law treats you differently. Several recent books as well as news reports, both Canadian and American, demonstrate that surveillance of Indigenous and Black people is far tighter than for white folks. They get arrested and jailed as a result for far more offences, particularly drug-related ones, than white folks though surveys show that whites proportionally are more likely to be illegal drug users and sellers than non-whites. And I know from personal experience–I’m white and one of my kids is African-Canadian, the other a mix of African-Canadian and Indigenous–that “driving while black” and indeed “being a human while black or Indigenous” is a real thing. Until the law treats everyone the same, I have nothing but contempt for discussions that babble about the “rule of law” in Canada. Whose law? For whom?
Thank you for this Alvin. I’m really sorry to hear that the “driving while black” and “being a human while black or Indigenous” is a real thing in Canada. Here’s my question: how will we change this without talking (babbling) about the rule of law in Canada and where it’s failing us?
We do have to talk about the rule of law in Canada. The question is the starting point. I’d say that point should be that the law is an ass if we are not all equal before it, but with exceptions made for those who, for good reason, cannot be equal. Currently the exceptions are made instead for those who already have all the advantages: too big to fail corporations who got that way because they broke all kinds of laws, and the super-wealthy, for example, as the attitudes inside CRA and Tory and Liberal Cabinets (and frankly, as I learned from a case in 1970 in Manitoba that I won’t elaborate on here where I was personally involved, provincial NDP Cabinets sometimes too) demonstrate. Of course, the dial has moved somewhat since the 1960s with human rights laws and human rights commissions. But the fact that most of the people in western Canadian jails are Indigenous people and African-Canadians are also over-represented tells us more about our laws than about those prisoners. For starters, as I know from my involvement with organizations dealing with people who suffer from Fetal Alcohol Spectrum Disorder, a very large chunk of people who are in prisons suffer from FASD. Prisons will not alter their behaviours and indeed will make them worse. There are better ways of dealing with them (and in fairness to our NDP government, it is doing a few good things on this issue). But, overall, as a society, we could seem to care less or we simply want to lash out and punish the weakest among us. And those who are in charge of the legal system appear to think it’s none of their business to assess whether FASD is in the picture and what it should mean for sentencing and for coordination with the medical and social systems. And then there is the problem of our policing systems and the constant hiring of racists as cops. That can only be dealt with by changing the qualifications for policing and with that the attitudes inside forces. When I was arrested in 1976 in Edmonton along with 60 others for failing to allow a visiting all-white South African cricket team to play, the officers who released me gave me a “would you want your sister to marry one of them” grilling. And the non-white male protesters were without exception in the last group released and all had been manhandled. From my sons’ experience, nothing has changed. So, yes, we have to talk about this, but it has to be more than a discussion of what the laws are. Going back to your discussion of the DPA versus trial issue, the fact that DPAs exist is, in any case, because SNC Lavalin willed it. And the fact that they might get a DPA is because Trudeau fired JWR. Meanwhile despite lobbying by FASD groups, there is no law that gives a DPA equivalent to someone who has FASD or autism or an addiction, and while judges occasionally take such things into account, just look at who is stuffed into our jails. We’ve gone from stealing all the children and putting them in residential schools to stealing all the adults and shoving them in prisons. Someone like JWR could help but she has been excluded because she won’t defend the Mafiosos whom the law generally protects.
Susan, I ‘m concerned about the failure to provide any evidence to support allegations of 9,000 [Quebec?] jobs lost if SNC Lavalin did not get a DPA. losses. Unless JWR and the DPP were presented with evidence concerning the probability of the job losses, there was, in my opinion, no basis to challenge their decisions to not interfere with the DPP’s decision or to not ask for a second opinion of JWR’s decision.
Is there any provision for anyone to require the AG to get an outside opinion on an AG decision, and if so, to provide reasons and evidence for questioning the decision?
Carol, when I read JWR’s testimony it looked like her concern about inappropriate pressure shifted from the issue of SNC job loss to the issue of whether she should get an outside legal opinion. This is certainly how Gerald Butts’ testimony framed the issues. This makes sense given that the economic implications of SNC being prosecuted could only be considered in the context of general policy (even JWR admits that) but not in great detail.
There are no laws or regulations requiring the AG to get an external legal opinion as part of her decision making process. Based on my experience with two international corporations, a wise GC gets an outside legal opinion without prompting from upper management in cases where she suspects her decision will be second guessed by the CEO and the Board or the decision has very serious consequences for the corporation. The external opinion will (1) confirm she’s made the right decision or outline other scenarios and (2) provide what we used to call “air cover” in the event everything goes haywire. I know the Alberta government has requested external legal opinions for difficult files and I suspect the federal government has done so as well, but I don’t know why JWR was opposed to the suggestion.
Oops – please ignore the stray “losses” from the second line.
Unfortunately for the public’s understanding of the situation, I don’t see much national news coverage of legal experts who argue that this *is* as per Susan’s take, a precedent setting matter and that arguments from both sides are arguably legit, and that a process is required to sort out just what guidelines should be adopted for DPA situations. Mostly the media pundits have decided JWR is fully in the right, and the rule of law is apparently under some unique nuclear attack… OTOH, here’s an example of the ‘the sky is NOT falling’ take that should be getting more coverage, IMHO:
https://ipolitics.ca/2019/02/28/who-decides-when-the-red-line-is-crossed-in-instances-like-the-snc-lavalin-affair/
Errol Mendes
Errol Mendes is a professor of constitutional and international law, president of the International Commission of Jurists, Canada, and a recipient of the Order of Ontario.
Sam, thank you for providing the link to Errol Mendes’ article. It provided a balanced overview of the two opposing positions on what constitutes “pressure”. I liked the fact it set out a path forward (guidelines) to assist in the future. I was interested to learn the PCO is already in the process of developing guidelines re: decision making with respect to other major constitutional conventions. Years ago I worked with an American lawyer who couldn’t get over the fact that so much of our constitutional law was based on “conventions” and common law. I suspect with the election of Donald Trump she, like many Americans, discovered that much of what governs America springs from “conventions” and healthy institutions.
Chantal Hebert RTweeted this column by Lysianne Gagnon. I used Google translation… More discussion of the absolutist nature, & non-consultative nature of JWR’s choices/response. IMHO, JWR’s decision to categorically and essentially immediately reject the option of hearing 2nd opinions was probably narcissistic. Her legal CV/experience gives me no confidence she should have been the ‘decider’.
chantal hébert
Verified account @ChantalHbert
LYSIANE GAGNON – La construction d’une héroïne #lapresseplus
ooops the link is here: http://plus.lapresse.ca/screens/cbcd48bb-fcdd-412a-b6f6-38ae0a161b46__7C___0.html?utm_medium=Twitter&utm_campaign=Internal+Share&utm_content=Screen
Before I heard that she illegally and unknowingly recorded that telephone conversation with the Clerk of the Privy Council, I was not sure where I stood on the issue. I have since listened to that recorded conversation, read this thread as well as the full transcript of the Committee hearing. Something is just not right. The arrogance of not wanting to change your mind, complaining of pressure when in my view it was standard due diligence and then ignoring the suggestion of an independent external expert opinion. Who does that! There seems to be a lack of respect or understanding of the law and how and when to apply it in this case. For me what seems to be missing from JWR is basic integrity and respect for the government and due diligence. Although the ripple effect may be far and wide and its not not yet over, my view is the whole issue is “a tempest in a teapot”.
I completely disagree. For whatever reason, the DPA provisions that the Liberals slipped into the budget last year specifically ruled out providing a DPA for economic reasons, which are the only reasons, other than the political needs of the Liberals in Quebec, which it goes without saying would violate the acceptable reasons for a DPA, that the PM and his associates were giving. Why should JWR have given in to pressure to go beyond the opinions of her own officials, well-steeped in the law, to try to bend and twist DPA provisions? Her warnings to the government that trying to pretzel that law would rebound on the government have proved prophetic. I am glad that JWR did record that telephone conversation with Wernick. It demonstrates that he lied to the Justice Committee or at least tried very hard to mislead them while she told the truth. Without evidence in this he said-she said spectacle, many people were going to believe the fancy-sounding, politically experienced white boys’ evidence against the “Indian girl.” The campaign that is being led against her, particularly the scuzzy stuff about the Supreme Court appointment, is beyond putrid. So, I’m glad that she kept, knowingly or not, evidence that shows that she is neither a liar nor a dolt. I suspect that she knew what was coming in terms of Trudeau removing her from the A-G position over this issue. She gave really good advice to the government via Wernick in that tape and I believe her claims that she gave that same warning directly to the PM. While this whole episode is getting boring, I still see JWR and Jane Phillpot as ethical and authentic people and the other side of the debate as jaded politicians in league with a horribly crooked company that knows how to buy politicians. Clearly, as Wernick suggests, the PM was obsessed with this issue and wanted a pliant replacement in the A-G position. Since he himself has said that he would not have replaced her if Scott Brison had not quit Cabinet, the effort by others to suggest that she was probably moved because she doesn’t know or respect the law strikes me as both misogynist and racist or at least blindly partisan.
The ruling out of economic factors for a DPA is a complete misinterpretation by almost everybody, including the Globe and Mail. It is true that Section 715.32 (3) says that the prosecutor “must not consider the national economic interest”. But this is in the context of a small clause cheek by jowl with reference to “relations with a state other than Canada” so it is clearly ruling out MACRO national-level economic considerations and relations.
Most importantly the VERY PURPOSE of the Negotiated Remediation Agreement is to punish the offenders but PROTECT the public interest, which under Section 715.31 explicitly says “reduce the negative consequences of the wrongdoing for persons – employees, customers, pensioners and others” – who did not engage in the wrongdoing…”. Clearly this HAS to include financial consequences, including job security, customer contracts, supply chain impacts and the like….what I would call DIRECT impacts ion those immediately affected, as opposed to NATIONAL ECONOMIC impacts.
Moreover, one of the three core requirements for eligibility for a Negotiated Remediation Agreement, set out in 715.32 (1) is that “negotiating the agreement is in the public interest”.
Lots of other people have been blowing air about “the rule of law” but very few have actually done the homework of reading it.
It’s not in the public interest to spare a company that probably should be disbanded for its repeat offences over a long period of time. Why should any company be allowed to grow and force others out of business by getting away with huge and repeated bribes? And in any case the government has always been in the position to change the laws that say that convicted lawbreakers cannot make bids for a 10-year period. There are other ways as well in which the government could protect the workers at SNC if that is their goal including expropriation of the firm or insuring that other firms hire them with the government maintaining their pensions. At this point any effort to introduce a DPA for SNC would likely result in a majority Tory government, which would be a disaster for Canadians. The government created this mess for itself and needs to figure a way to bow out of it gracefully, even if that is letting this gangsterish company which now claims to be squeaky clean go belly up. The efforts to discredit JWR and ignore Jane Philpott while leaving the new A-G to find a way to come up with a DPA could result in the Liberals losing all their seats outside Quebec. You may have noticed that both in Ontario and the West many people are asking why the government is willing to bend laws and make new laws to save a Quebec company but won’t do the same when it comes to pipelines or automobile companies? If the government believes in the “rule of law,” it will dispense with the whole DPA nonsense, the very essence of which is that some people (and really just corporations and the super-wealthy) are above the law and the law is supposed to recognize that. We saw the same thing with the Tories and KPMG in terms of tax law. “The law is an ass” when it fails to treat everyone the same and indeed when it makes corporations, an artificial social construct, more invulnerable to punishment than real, living, breathing people, “the law” is a law for outlaws alone. Voters of all stripes will punish any party that creates a fog to try to save one group from punishment that would be easily meted out to anyone else who broke the same laws. You can say, if you like, that I’m mixing “law” and “justice” and that the two have nothing to do with each other, as a corporate lawyer once told me firmly. But we non-lawyers tend to want justice and law to have some relationship to each other.
Alvin, just to pick up on your comments at the end, I think everyone wants justice and law to have some relationship to each other, however as JWR herself said we are working with the law we have. The law says the Director of Public Prosecutions can offer a DPA to a company charged with bribing a foreign official. The law also says the AG can intervene in the DPP’s decision not offer a DPA. On four occasions over four months, the PM, (once), the Clerk of the Privy Council (once on the taped phone call), PMO staff (once) and staff for the finance minister (once) suggested to JWR that she use all the tools in her legal tool box. One of those tools would have been to ask Beverley McLaughlin, an ex Supreme Court justice for a second opinion. JWR refused to do so, notwithstanding the fact that she told Wernick that she would do so in the taped phone call. If JWR thought Wernick (and through him the PM) were applying ‘inappropriate but not illegal” pressure by suggesting she get a second opinion why did she say tell Wernick she’d call Beverly McLaughlin “right now” in the taped phone call. In my opinion she’s been all over the map on this and I don’t think she’s serving justice at all. It’s easy to say we want justice to override the law when the justice we want would make us happy, but that argument can come back to haunt us if it produces a result we don’t want. I think we’ll just need to agree to disagree on this one.
The taping of the call was NOT illegal and obviously she had already been the recipient of enough pressure that she felt it was warranted. Finally, we have two politicians showing some integrity and people are crucifying them. Do you think they did not know how they would be attacked and villified? It would have been so much easier for them to say nothing and hide their heads in the sand, yet they chose to take the hard road and stand up for their principles. I have enormous respect for both of them and I have to shake my head at those who are bored with this issue. How can anyone be bored with making our government accountable and exposing the corruption that exists?
Marilyn given my response to Alvin, it will come as no surprise that I don’t agree that JWR was justified in taping the phone call. I listened to the call. Wernick did not say anything that contradicted what JWR or Wernick said in their testimony. Furthermore he did not use improper or impolite language. He tried a few different ways to ask her to use all the tools in the legal tool box (this includes getting a second legal opinion from Beverly McLaughlin) and JWR said she’d call McLaughlin and then didn’t. Why did she agree to call McLaughlin if she thought it was “inappropriate” for Wernick to suggest it? Wernick told her it wasn’t good for the PM and the Justice Minister to be at loggerheads, I don’t know why people find this comment alarming. Lawyers run into this in the workplace all the time. Our code of conduct says if we’re asked to do something we think is illegal we are obligated to resign. She could have resigned but she didn’t she stuck around waiting for this to blow over. She said she would have resigned if the new Justice Minister granted SNC Lavalin a DPA, he didn’t and she resigned from her post as Veterans Minister anyway. Lastly she said she taped the call as an aide memoire; obviously it worked that way because her testimony of what Wernick said in the call tracks when Wernick said on tape. The taped call served its purpose as an aide memoire so why did she release it weeks after she’d given her testimony. I don’t think it vindicates her, I think it shows she did something unethical while she was serving in the highest legal position in the land.
Chris I agree with your concerns about JWR recording her phone call with Wernick. She said she did it because she didn’t have a staffer with her and she wanted an aide memoire; if that was the case she could have asked Wernick whether he minded if she recorded the call. She didn’t. She chose to record the call surreptitiously.
The issue about whether her actions were illegal is an important one. I need to take a careful look at the criminal law and privacy laws to see whether this is the case. At the very least it was unethical for her to record the call without Wernick’s knowledge or consent.
JWR made a big deal in the media about how inappropriate it was for Trudeau to suggest she should get a second legal opinion from someone like Beverly McLaughlin, but in the taped phone call she herself said (at least twice) that she’d call Ms McLaughlin. She never did. If this is the way she conducted herself in conversations with others (saying she’d call an ex-SCC judge and then not doing it) I’m not surprised she and Wernick, and the PMO got their wires crossed. I was also very troubled by her response to Wernick when he said Trudeau didn’t understand the situation the way JWR had explained it and she said “nobody is explaining it to him”. JWR was his AG and Justice Minister. It was her job to explain it to him, all she had to do was pick up the phone and call him. (Although maybe it’s a good thing she didn’t, she’d probably have taped him too).
I am very troubled by her conduct. Unlike others I don’t see her behavior as befitting the person who holds the top legal job in the country.
I expect the same persons complaining about JWR taping that conversation would also object her not blowing a whistle when an assault turned into rape. And has everyone forgotten that the excuses about job loss and economic disaster were figments of over-anxious political imaginations?
The taping was not illegal, there was no solicitor-client confidentiality, and the Libs could have avoided the public release of the tape by allowing the inquiry to continue and by not taunting JWR with “put up or shut up”. She chose to put up, Kudos to JWR for recognising danger and taking steps to protect herself and defend integrity.
Carol I’m not sure I agree with you on whether the taping was legal, the Alberta Lawyers Code of Conduct lawyers states that “a lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.” This raises the issue of whether Wernick in his role as Clerk of the Privy Council was her “client”. Lawyers working in-house consider the entire corporation and everyone working in it right down to the mailroom clerk as their “client” and it would be a breach of solicitor-client privilege for in-house lawyers to disclose anything anyone in the corporation said to them. I don’t know if government lawyers see the government in the same way but I’ll check this out because it’s pertinent to both the taping of the phone call and the breach of solicitor-client privilege questions. The answers to these questions will determine whether JWR was right to tape the conversation and then release it to the public.
Thanks, Susan, I made an assumption based about that relationship: perhaps there is a real conflict or incompatibility between the roles as Justice Minister and Attorney General?
Nonetheless, JWR has been put in a very difficult place where I’m certain she felt under attack, and I have respect for her decision to protect herself and her concern for integrity. As it turned out, I think her anxiety was certainly justified. Is that ever a defense for an action not usually considered legitimate?
The other shoe has fallen; not unexpected. It’s what the same-old parties have always done.
A very naïve me voted Liberal once, for Justin’s papa – 1968? Promises of civil rights, equality, and other sunbeams. Soon betrayed with the implementation of the War Measures Act. Justin is indeed his father’s son.
I don’t often agree with Andrew Coyne, but he seems to be the most focused voice on the entire affair, which was and still is inappropriate political interference in our rule of law.
Carol I tend to agree with you with respect to PET and the War Measures Act. It was a heavy handed response to the situation. However I do not view Justin’s decision re: Philpott and JWR as being in the same league. I’m not surprised the Liberal caucus didn’t want JWR in their ranks…she admitted to taping Wernick’s call without his knowledge or permission. This is a terrible breach of trust and if she did it once, she’d do it again. I’m not clear on why they ejected Philpott as well. Perhaps they felt Philpott was loyal JWR, not the party, who knows.
And I don’t agree with Andrew Coyne that this was inappropriate political interference in our rule of law. If it was, then Brian Mulroney is also guilty of inappropriate political interference for directing Kim Campbell (then AG/Justice Minister) to reopen the David Milgaard case. The only distinction between the two cases is Milgaard was improperly imprisoned for 23 years and is a sympathetic figure whereas SNC is not. Interestingly Kim Campbell says Mulroney did not order her to reopen the Milgaard case, while Mulroney and his chief of staff, Norman Spector, say he did.
The only thing that surprises me about the firings is why they didn’t do it sooner. JWR has shown herself to be an enemy of the party. She has harmed the Liberal party, perhaps irretrievably. She can’t be trusted and quite frankly, why would the party keep her?