It was a headline befitting the National Enquire, splashed across the top of the newspaper in four different fonts and three different colours: “The evidence abundantly shows that Mr Trudeau knowingly sought to influence Ms Wilson-Raybould both directly and through the actions of his agents.”
And boom, it turned into a media circus.
The fundamental problem with this headline is the Ethics Commissioner, Mr Dion, also said simply seeking to influence another’s decision is not enough to breach of section 9 of the Conflict of Interest Act.
A second element is required. Mr Dion had to find that “Mr. Trudeau, through his actions and those of his staff, sought to improperly further the interests of SNC-Lavalin.”
Mr Dion said both elements were satisfied; however Errol Mendes, a professor of constitutional and international law, says Mr Dion appears to have misinterpreted “his own act and his jurisdiction” and we need a “more in depth discussion of the accuracy of this report among government, the media and…the public.”
Sadly, the media is not interested in a thoughtful discussion about the Report. It’s perfectly happy running amok, cherry picking its way through the Report and blasting out the juicy bits to boost readership.
Media Spin I: Improper interference in a criminal proceeding
The media says Mr Trudeau breached the Act by trying to get JWR to “interfere” with a criminal prosecution. This ignores the fact the AG has the discretion to intervene and if she chooses to exercise her discretion she’s not “interfering” with a criminal prosecution, she’s “intervening.” (And remember Mr Dion said Mr Trudeau trying to get JWR to do anything doesn’t violate the Act).
Media Spin 2: The women vs the old boys club
The media says JWR led a group of women (Ms Roussel, director of public prosecutions, Ms Prince, her chief of staff, Ms Drouin, her deputy minister, former Liberal MP Ms Philpott and maybe even former chief justice Beverly McLachlin who “had her own reservations”) in a fight to fend off the “Old Boys club” (comprised of Mr Trudeau, some SNC executives and senior government officials, and maybe even two former Supreme Court justices, Frank Iacobucci and John Major) who were trying to get JWR to “interfere” with a criminal prosecution.
Have they read the report?
Ms Drouin, JWR’s deputy minister, was the first to propose bringing in an outside expert. She said the Attorney General (JWR) could issue a directive instructing the Prosecution Service to give the outside expert enough information to ensure the “public interest criteria had been properly weighed”. JWR rejected her deputy minister’s advice.
With respect to Ms McLachlin, JWR said she’d talk with the former chief justice, then changed her mind. Ms McLachlin was prepared to meet with JWR, Ms McLachlin’s so-called “reservations” were that she was no longer a lawyer and couldn’t give legal advice, she needed a proper briefing and she’d need to be retained by the AG not the government.
No matter how the media spins it, this wasn’t a battle between the women and the Old Boys club.
Media Spin 3: Rushed remediation agreements
Discussions about whether Canada should adopt remediation agreements (also known as deferred prosecution agreements) had been ongoing since May 2015 when SNC engaged in discussions with the Harper government. Talks stalled and were suspended pending the outcome of the federal election in Oct 2015.
The Trudeau government revisited the idea in Feb 2016. It held public consultations from Sept 25, 2016 to Dec 8, 2016 and found the majority of the participants supported the idea. It introduced amendments to the Criminal Code in the omnibus Budget Bill that was tabled on Mar 27, 2017. The Budget Bill was reviewed by the House Standing Committee and several Senate committees before receiving assent on June 21, 2018. The Criminal Code amendments went into effect on Sept 19, 2018.
JWR complained that the consultation process was rushed and refused to lead the memorandum on the Criminal Code amendments to Cabinet, speak publicly or speak before parliamentary committees about it.
Was the consultation rushed?
There are no rules setting out how long public consultation should last. Consultations range from three weeks for input on national historic sites, to three months for input on the agenda for Canada’s Sustainable Development Knowledge, to three years for input on the implementation of the Species at Risk. JWR didn’t say how long the consultation should have been, but she was so unhappy with the process she boycotted it.
Media Spin 4: It’s all about Quebec votes
Mr Trudeau had direct contact with JWR once, in a meeting in Sept 2018 that included Mr Wernick, the Clerk of the Privy Council. Mr Trudeau said he understood the decision was JWR’s to make and she’d made it. He said he wanted to find a “solution” and when she agreed to talk further with Mr Wernick and her own deputy minister (who’d suggested bringing in an outside expert and reaching out to the Prosecution Service) he thought she was prepared to revisit the issue.
During this meeting Mr Wernick mentioned the upcoming Quebec election and Mr Trudeau said he was a Quebec MP. JWR asked Mr Trudeau if he was politically interfering with her role. He said no and never mentioned politics again, unfortunately some of his staff did in their meetings with JWR and her staff.
Professor Mendes and others say the Shawcross doctrine precludes an AG from considering political interests in a criminal prosecution. But here’s the kicker. Professor Mendes says the Shawcross doctrine does not apply in a consideration of section 9 of the Act and the Ethics Commissioner misinterpreted the Act and his jurisdiction when he applied it.
Media Spin 5: This is about ethics
Mr Dion said Mr Trudeau attempted to influence JWR’s decision not to intervene in the SNC prosecution on four occasions:
- At the Sept 2018 meeting when he said he was an MP for Quebec. Professor Mendes says the Commissioner inappropriately applied the Shawcross doctrine and misinterpreted his jurisdiction when he did so.
- When PMO and Privy Council staff asked whether the AG could intervene in SNC’s application for judicial review to expedite the hearing or get a stay pending the outcome of discussions about the remediation agreement. Does staff asking the question amount to “influence”?
- Suggesting to JWR that she seek external advice from “someone like” former chief justice Beverly McLachlin when SNC had legal opinions from two former Supreme Court justices and shared them with the government and these opinions were prepared for the “sole purpose of persuading [JWR] to reconsider her opinion.” This is highly insulting. Ms McLachlin is not a puppet on a string. She would have formed her own opinion which may or may not have agreed with that of the two former Supreme Court justices.
- The “final and most flagrant attempt to influence” JWR was her conversation with Mr Wernick where he asked her to reconsider. The irony here is palpable. The Ethics Commissioner is relying on a conversation JWR secretly taped (most people would call that unethical, but the Ethics Commission calls it an “audio recording”) to condemn Mr Trudeau for things Mr Wernick said.
Mr Dion said these four instances tick the box for “seeking to influence.” He then embarked on a mushy discussion of the “national public interest” to demonstrate Mr Trudeau sought to improperly further SNC’s interests.
Mr Trudeau said he was trying to save 9,000 jobs. Mr Dion said this was improper because a prosecutor cannot consider the “national public interest.” Mr Trudeau’s lawyer argued “national public interest” as defined in the Criminal Code is modeled on the OECD Anti-Bribery Convention and the former Secretary-General of OECD said it was never intended to include job loss so a prosecutor can consider it . Mr Dion rejected this argument.
And Mr Trudeau was done.
When its all over
Yes, the Report contains evidence of discussions between Mr Trudeau and his staff and JWR and her staff, but these discussions are not enough to find Mr Trudeau in breach of the Act. To cross that bridge Mr Dion applied the Shawcross doctrine, perhaps in error, and relied on a definition of the national public interest which may be incorrect. The Report requires more in depth discussion.
Not that it matters to the media who are guided by the maxim: what would the National Enquirer do?
Based on what we’ve seen so far, the National Enquirer would be proud.
Susan on the Soapbox 
Susan: Thanks for another great blog. In regards to the SNC Lavalin affair, what many people forget is that this issue did not begin when Justin Trudeau and the Liberals were in power. The CPC had something to do with this too. It was reported in the news, even in 2012. John Baird, a former Mike Harris PC cabinet member was involved. I gave you a link in my response to you, on your previous blog. There was a hefty amount of bribe money being involved. Postmedia is reporting this to the maximum. If you see The Sun, it is on the headlines, and in columns galore. Yet, there are people who claim the media in Canada was paid off by the Liberals. Where is the media on the kamikaze scandal and Jason Kenney? There are people who think this is false, and want to deflect to Justin Trudeau and the SNC Lavalin affair. I know the media in Canada has been in a downward spiral for quite a long time. It’s also evident that columnists have a political leaning, mislead people with untruths, and people happily go along with it, and rarely question what they are reading. If anyone does question something they see, it will almost certainly never be acknowledged by the media. There are rare exceptions when it does happen in letters to the editor in newspapers, but mostly the letter writers themselves also would not know what the truth was, even if it was right in front of them. Again, look at what you see printed in The Sun. At least, I can come here and offer my thoughts, which is good. I do appreciate your responses.
Thanks Dwayne, I really appreciate getting your comments and the links you provide for additional information.
Your point about the media is very well taken. Many people think the CBC should be defunded, they believe it’s a Liberal mouthpiece. Anyone who follows CBC’s political pundits would disagree. I just finished listening to a CBC podcast in which three well known reporters discussed the Ethics Commissioner’s report. All of them focused entirely on the first element of section 9, did Trudeau seek to influence JWR, none mentioned that he could try to influence her all he wanted but it would not be a violation of section 9 unless the second element (to improperly further the interests of SNC) was also satisfied. If CBC was doing its job properly the moderator of the show would have been well briefed on both elements and could have put the question to them. Having said that it probably doesn’t matter, the focus of the program was we’re 10 weeks away from the federal election will this be a fatal blow to Trudeau and the Liberals. It won’t have an impact on the hard core Liberal base, but it will impact those who were sitting on the fence.
Susan: If the CBC is a Liberal mouthpiece, how come the comment moderators, governors and directors on it were put there by Stephen Harper? Many of the panelists on the CBC are right leaning. I’m glad you are here. If you were on other forms of social media, like YouTube, you would get a lot of nasty comments from trolls, who often violate their Terms Of Service, which is very bad.
Good point re: CBC Dwayne. I post my blogs to Twitter and Facebook. Comments on Facebook are pretty decent because I can control who my “friends” are but Twitter can be a nightmare. I don’t get into shouting matches with people on Twitter, there’s no point, their minds are made up and that’s that. I see this blog as a place where people can discuss ideas without worrying that someone is going to swoop down and clobber them.
Susan: Like I said, I was on Twitter, until June, 2018. My account got knackered, I could not get back on it. On another social media platform, someone was trying to impersonate me. I hope it was rectified, as it violated the platform’s Terms Of Service.
Dwayne, I’ve heard of others who’ve been thrown off social media and they don’t know why, meanwhile people who post hateful things seem to get away with it. I have no idea who’s enforcing their Terms Of Service but they have to do a better job, especially now with the federal election less that 10 weeks away.
A most succinct clarification on the dramatic narrative trying to be imposed upon a public looking for scandal. I can go back to talking about Water – Pipelines – and “the Miracle Network” that are trying hard not to become the class of fools from the 2014 oil industry collapse, caused by environmentalist such as “moi”. Jack Gallagher – and other former Calgary Oil Boys since departed somehow are of a different class than today’s line up of rogues. The high levels of Nitrous Dioxide is seldom used in Dentistry anymore. Yet NO2 air pollution stills hangs on in the ventilation systems of the towers of “Red Square” – and the “oil Barrel” and other iconic places where the mountain fresh water flows through the cracks of Mother Earth. The new Messiah in his standoffish demeanour look deliriously funny as he appoints kangaroo Court Tribunals to investigate the economic impact of free clean narcotics within the crumbling neighbourhoods. The comedy never ends.
Thanks for your honest insights.
Bj
Sent from Mail for Windows 10
Papajaxn, the latest act of insanity was the announcement by Elections Canada that nonprofit groups who say carbon dioxide as a pollutant or climate change is an emergency could be considered to be indirectly advocating against Mr Bernier and the People’s Party of Canada who doubt the legitimacy of climate change. This would be considered a partisan activity even if they don’t mention the candidate or the party by name. Is this what we’ve come to? Non profit groups cannot report scientific facts to counter politicians’ rhetoric? Really?
BTW Morgan is an Alberta boy, born and raised. Last August he had a video gabfest with Jason Kenney running down Liberal energy policy which appeared on Kenney’s official Facebook page. It’s ironic the Cons who are trying to make political hey out of SNC when the guy who was largely responsible for this mess in the first place, appears to have close ties with the Tories.
Look who’s coming out of the woodwork. Gwyn Morgan, the former chairman of SNC during its scandal plagued heyday who stepped stepped down in 2013, is now shilling for Scheer.
https://business.financialpost.com/opinion/gwyn-morgan-a-principled-conservative-policy-would-challenge-trudeaus-climate-propaganda-with-truth
Ronmac: well, that was interesting. Gwyn Morgan’s pitch is (1) if climate change is about global warming how do you explain the floods in Quebec that were caused by unusually high snowfall (actually climate change is about global warming which causes extreme weather ie. floods, droughts, heat, (2) carbon tax is wrong because the people get refunds but the corporations bear the full cost (yes, because their activities cause much of it and they should pay for the direct and indirect costs of their activities), (3) oil consumption will rise 10 million barrels/day by 2030 (that’s 10 years out, what about 50 years out?) and (4) it doesn’t matter what we do because Canada’s impact is tiny (so instead of being part of the solution we should be part of the problem) and lastly, his advice is this: prepare for the worst, build dams and compensate homeowners and leave the corporations alone.
Not very inspiring to most of us but a fine message for those wealthy enough to leave the country when it all goes pear shaped.
Very selfish attitude, but I’m not surprised.
BTW Morgan is an Alberta boy, born and raised. Last August he had a video gabfest with Jason Kenney running down Liberal energy policy which appeared on Kenney’s official Facebook page. It’s ironic the Cons who are trying to make political hey out of SNC when the guy who was largely responsible for this mess in the first place, appears to have close ties with the Tories.
Ronmac, yes, it’s as ironic as Jason Kenney trashing the equalization program he himself supported when he was in the Harper government. These guys know no shame.
Why can’t Canadians have a government that governs honestly and openly for the benefit of Canada? Why do news snoops have to poke and peek hither and yon to catch a glimpse of what our governing politicians are doing? Asking a question should result in an honest and complete answer.
Why does every answer to just about every question asked of our Prime Minister elicit fuzzy answers that even University Professors have trouble understanding. I suspect that our PM does not know the answer to any questions asked of him.
Ed, I agree that we deserve honest and complete answers to our questions. I also believe the politicians and the media should refrain from whipping up the public with incomplete and incorrect information. I think that’s what happened here.
Trudeau is to blame for elevating an inexperienced lawyer to the most important legal position in the country. JWR was a crown prosecutor for 3 years, after that she was a Treaty Commissioner and and Regional Chief for the BC Assembly of First Nations. As far as I can tell she was the least qualified Justice Minister/Attorney General we’ve ever had.
JWR is to blame for giving the PM and others mixed messages–no, she won’t change her mind, yes, she’d talk to Wernick and her own deputy minister who suggested reaching out to the Prosecution Service and retaining an outside expert. No, she wouldn’t reach out to the Prosecution Service, Yes, she’d accept a letter for SNC setting out the public interest issues and send it to the Prosecution Service, no she wouldn’t talk to Beverly McLachlin, yes she’d talk to Beverly McLachlin.
The final straw for me was when she secretly taped Wernick. That is not ethical under any circumstances.
If Schneer thinks the law has been violated, shouldn’t he start a “Private Prosecution” ?
Keith, Scheer knows he can create more political hay by characterizing this in criminal language. Hence the claim the Ethics Commissioner found Trudeau “guilty”. We normally reserve that word for violations of the Criminal Code, not violations of non-criminal statutes. But hey, if it allows Scheeer to keep this in the press a little longer, it’s good politics.
PS I liked how you spelled Schneer.
The only thing that is cut and dried about politics is that nothing is cut and dried. Thank you for helping me make sense of this so-called scandal. It’s taken me some time to move beyond my own biased thinking that a woman…an indigenous woman, moreover, could b anything other than a victim when she is placed in such a situation. Scheer and his handlers are practically orgasmic in their rush to do whatever it takes to satisfy their lust for power. It’s a pity that so many Canadians rely on inaccurate, one-sided, misleading accounts. I will be sharing your blog. Maybe some will read it.
Thanks Connie. I know what you mean about struggling to move past our biases. I was impressed by Trudeau’s effort to bring gender balance and diversity to Cabinet, but given that this is the top legal job in the country he should have appointed someone who was better qualified for the role. The fact that it’s a dual role (Justice Minister and Attorney General) makes it one of the most complex political positions an MP can hold.
Thank you for this succinct and thorough analysis.
All through this affair, something keeps coming to me that I have long wondered about and that is perhaps agency.
What do I mean?
An MP is elected to responsibly represent the citizens in the electoral district (ED) that elected her/him. Thus the backbench opposition MP elected by the people in my electoral district can be counted upon to represent, perhaps advocate for my interests as well as those of the other citizens in the ED. That seems pretty straightforward. Where that MP’s party’s policy contradicts my interests, work has to be done to accommodate both positions.
Now if the MP representing my ED has been appointed to the opposition shadow cabinet, we might have to do some work to make sure my interests are not disabled by party policy within that portfolio. This situation seems to me more extreme than a non-shadow cabinet holder MP at least as far as policy for that MP’s shadow cabinet portfolio. But that’s just how it has to work in the presence of political parties as law makers.
Anyone in an ED represented by the opposition leader has a greater complication to deal with. The leader seems to me to be honour-bound to represent the party’s policy positions in all things, unless the citizens in that ED express interests contrary to the party policy? Accommodation is now more difficult, taking a great deal of skill to succeed at.
The same, of course, holds true in the case of ED’s represented by government MP’s. Any MP represents the interests of the citizens who elected her/him. Again, accommodation must be made to successfully represent the interests of both the citizen and the government.
Again, successful representation of both citizen and party is more difficult for a cabinet minister, especially in the case of the interest being directly applicable to the mandate of that minister’s portfolio.
The Prime Minister’s role is by far the most difficult to balance as includes all of: 1) the MP who represents and advocates citizen’s interests, 2) MP respesenting and advocating government interests, 3) leader of the government with its policy positions, and 4) the duties of the Prime Minister as chief executive mandated by statute and tradition.
When the MP who happens to be the PM advocates on behalf of the citizens within her/his ED, who is doing the advocating, is it the MP or the PM? How would the person that MP is advocating to know the difference? Is there some mandated protocol by which other MP’s and other cabinet members know who is talking to them? Without a clear statement to that effect, is the person being advocated to then allowed to draw her/his own conclusions and decide which serves that person’s interests best and work under that assumption? Is that person then allowed to change her/his mind with or without communicating the approach taken and now it’s, for instance, not the MP advocating, but the PM advocating?
To me, the SNC Lavalin – Government of Canada affair can be fairly characterised as at best confusing. I think it is highly material to the situation that both the Prime Minister and the Justice Minister had to be on the same wavelength as to who was talking to whom. It is quite possible that the PM thought he was doing his duty as the MP and not the PM. It is quite possible that the Justice Minister thought she was talking to the PM, not the MP. If this was the case, this was a terrible oversight on the part of each of them.
As far as I am aware there is no explicit statute or tradition enforcing the clarity of communication around this issue.
Mike Klein
On Mon, Aug 19, 2019 at 9:16 PM Susan on the Soapbox wrote:
> susanonthesoapbox posted: ” It was a headline befitting the National > Enquire, splashed across the top of the newspaper in four different fonts > and three different colours: “The evidence abundantly shows that Mr Trudeau > knowingly sought to influence Ms Wilson-Raybould both directly ” >
Mike, what an excellent point! You’ve nicely pointed out yet another reason why the SNC situation is so gnarly. Who is talking to whom and which hats are they wearing? The fact this was brand new legislation appeared to trouble JWR a lot. In her testimony to the Ethics Commissioner she said she receives between 2 and 8 Section 13 memos from the Director of Public Prosecutions a month. Section 13 memos are the notices to the AG advising her of her legal right to intervene in a prosecution and either (1) direct a prosecution or (2) take over its conduct at any point in time up to conviction or acquittal. JWR said there was no precedent for the AG intervening but the law was clear that she could. She said there was no precedent for the AG getting outside expert advice on this case, although her deputy minister gave an example of how she’d brought in an expert panel in Quebec. Also JWR wasn’t averse to hiring outside experts to help her. She hired Gregoire Webber, a respected legal academic, to work with her team on a memo on prosecutorial independence, remediation agreements, the prosecution’s decision not to go with a DPA and the “political considerations regarding an intervention from the AG.” I wonder what those “political considerations” were and how she rationalized receiving a memo on “political considerations” given the fact the AG is not supposed to consider “political considerations” when she decides whether or not to prosecute.
As you said, at best the SNC case is quite confusing, at worst, it’s a mess.
Ms Soapbox: What I infer from your post is that there is nothing to this affair, i.e. no scandal. A rare occurrence here — I disagree with you. What I find most distasteful about this whole affair, is the degree to which lobbyists for SNC were in the vest pockets of staff at the PMO & in Bill Morneau’s Department. The company virtually wrote the language for the DPA provision that was slipped into that omnibus budget bill. It’s like a con artist being asked for input into amendments to the Criminal Code to make plea bargains easier. And yes, that intense lobbying by SNC predated the Oct 2015 election that swept the Liberals into power.
Clearly, Conservative or Liberal, it doesn’t matter: big corps like SNC get privileged access to government and get to edit the rules that govern their businesses.
Jerrymacgp I was focusing on the media coverage of a complex decision that might in fact be wrong; specifically the media covered the 1st element of a section 9 violation: did the PM directly or indirectly try to influence JWR’s decision? Yes, but they failed to add this isn’t enough to constitute a breach. The 2nd element: did the PM’s use his influence to improperly further the interests of SCN? Mr Dion says yes and relies on (1) the definition of “national public interest” that conflicts with what the OECD says it means, and (2) the Shawcross doctrine that Mr Mendes says is not applicable in this context (although it may be applicable in another context to these facts). The point I was making was the media ran with lurid headlines and stories about the 1st element and didn’t bother to look into the 2nd element, at the very least they could get their own legal experts who say Mr Dion was right and Mr Mendes and the OECD were wrong or vice versa.
But to your bigger question, I wholeheartedly agree with you that the most disturbing aspect of this affair is the degree to which SNC was working hand in glove with the staff at the PMO & in Morneau’s Department. Mr Dion cites many examples of ridiculously close contact and indeed arrogance on the part of SNC who button-holed government people at conferences in Beijing and Davos, got input from Finance staff on a power point document setting out the public interest considerations which happened to include a “Plan B” slide showing the company drastically downsizing or packing up and moving to the UK, sent the PMO reports of their share price dropping, got legal opinions which they wanted to be shared with JWR and wanted to meet with Trudeau personally (thankfully he refused).
So while we may disagree on the correctness of Mr Dion’s report I think we agree that no matter how many times we are told the [fill in the blank] party will be different if elected, once they’re in power, they’re the same. Actually I’ll qualify that, the Alberta NDP worked hard not to fall into the same trap. Some voters don’t think they went far enough on the energy file, but it takes time to turn the Titanic away from the iceberg. I think they would have gotten there but for the fact the people preferred Kenney’s UCP.
And, of course, there’s the fact that JWR hates SNC with a vengeance because of their involvement in the Site C dam project.
JJ I wasn’t aware of the SNC/Site C dam connection, although I got the impression from the Ethics Report that JWR was nervous about doing anything that would set a precedent in this area and felt more comfortable deferring to her Director of Public Prosecutions.
There appears to be some cherry-picking here as well. There’s no mention of Trudeau’s lies about why JWR was removed from her position as AG and nothing about how the PMO actively worked with SNC to influence JWR to change her mind about the deferred prosecution, without being clear about the extent of their collaboration with SNC, nor about the fact that very few jobs were at risk given that there are other companies in Canada that could pick up any work that SNC lost. You also don’t consider why JWR and Philpott would go so far in opposing Trudeau if he and his staff did nothing wrong. Instead of being an objective analysis, this reads like Liberal spin.
Peter I didn’t discuss Trudeau’s reasons for removing JWR from the AG/Justice job because it wasn’t part of the Ethics Commissioner’s report. You’re right about how closely the PMO and SNC worked together. The Ethics Commissioner described this in great detail but doesn’t dwell on it in the “Analysis and Conclusion” section of the report starting at para [245]. Instead he focuses on whether the evidence supports a finding that Trudeau directly or indirectly sought to influence the JWR’s decision and whether as a result he improperly furthered SNC’s private interests. This leads to a detailed discussion about the meaning of the words “private interest”, “improper” and “national economic interest”, and a discussion of the Shawcross doctrine.
Mr Dion came to no conclusions on whether jobs were at risk. Neither did he speculate on why JWR and Philpott would go so far in opposing Trudeau. He concluded that Trudeau did “seek to influence” JWR, (if you accept that everyone who talked to JWR about SNC did so at Trudeau’s direction and only Trudeau is culpable because only Trudeau is JWR’s boss, then I’d have to agree). Where Mr Dion and I part company is whether the purpose of the influence was to further SNC’s private interest.
Thanks for you response, Susan.
Hello Susan,
While I am a great fan of the Soapbox, I disagree, not so much with your formidable analysis, but with the emphasis on criminality.
What Trudeau has failed in is an understanding of the huge importance of the Rule of Law in a democratic society. Whether it was criminal behaviour or not is irrelevant – the actions undermined trust in government at a time when we desperately need leadership. To keep going with the mantra of protecting jobs as if this trumped highly inappropriate behaviour demonstrates this very clearly.
Expected better.
John, to be clear my focus was the Ethics Commissioner’s Report and the media picking up the 1st element of a section 9 contravention but not the 2nd element of a section 9 contravention. Mr Dion found evidence to support his conclusion Trudeau (directly or indirectly) violated the 1st element and sought to influence JWR’s decision, but this isn’t enough to breach section 9.
Mr Dion’s investigation into the 2nd element included a review of the Shawcross doctrine which is the touchstone for prosecutorial independence and the rule of law. My concern is that Professor Mendes said when Mr Dion embarked on this line of reasoning he went “…outside his jurisdiction in asserting that…Section 9 covers any time government advances the financial interests of corporations, [and that Mr Dion] has the jurisdiction to determine that, if the actions of the prime minister and his officials were contrary to the Shawcross doctrine, it becomes an improper purpose….this approach is straying outside what can be regarded as a conflict of interest analysis and moved [Mr Dion’s] mandate into the highly complex area of constitutional principles regarding prosecutorial independence, and the specific constitutional roles of ministers and senior government officials who interact with the attorney general. This is the domain of constitutional experts providing advice to governments, the courts and especially the top courts of parliamentary systems. While there can be legitimate discussions on whether the prime minister and his officials crossed a line in their attempts to influence the decision of the attorney general in terms of the Shawcross doctrine, in terms of ministerial and cabinet responsibility, it should not be part of any application of Section 9 of the Conflict of Interest Act.”
Mr Dion cites Krieger v Alberta Law Society as the leading case on Shawcross. Krieger is a Supreme Court of Canada case argued before Beverly McLachlin, Frank Iacobucci and John Major et al. Iacobucci and Major both provided legal opinions to SNC about JWR’s ability to intervene. McLachlin was prepared to meet with JWR to review the file. I would be stunned if three former SCC justices would have anything to do with this case if they thought for one minute they were putting the prime minister into a position where he could be found to have violated the Shawcross doctrine.
Bottom line: I’m still not convinced there’s a violation of the Shawcross doctrine, but if there is section 9 of the Conflict of Interest Act is not the way to deal with it.
It’s useful to note that in Alberta (& in all other provinces, to my knowledge) the prosecutorial discretion to proceed with charges or not (including extra-judicial diversion measures, which would include a ‘deferred prosecution’); is exclusively predicated on two discrete considerations: is there a reasonable likelihood of conviction and IS IT IN THE PUBLIC INTEREST TO DO SO (capitilization for emphasis is mine).
Thanks for this Norm. It helps put this entire discussion into context. I think people don’t realize just how much latitude prosecutors have.
Like many things in politics, public policy, legal matters and mixtures of all of the above: it’s complicated. Take the time to consider the facts and the consequences of knee jerk reactions.
Esme you’re so right. We’ve reached the point where we expect the media to pick up a story and report it thoughtfully overnight and in 800 words or less. No wonder citizens are overwhelmed trying to sort through the wheat and the chafe. As a friend one said, we’re in the Age of Outrage and it’s exhausting!
Looks like by all the comments that a large some seem to think there is a “scandal”. I have said it a few times ” it is easy to criticize but hard to govern”. Mr. Trudeau has to make difficult decisions, he has to do something and what is in the country’s best interest and Canadian”s best interest. There is a controversy, JWR had an agenda and she wanted to do that even if in not the best interest to Canada. To what purpose would a criminal prosecution serve, most or all of the guilty parties have left the firm, the company have now reformed their ways and bribery is not part of the culture.
A “scandal” makes good press even though it might mean we will get another ” Harper like” government that will give to the rich , oppress brown Canadians incarcerated abroad, try and deny a women’s right to choice, run high deficits as an excuse to cut programs.
Liberal’s accomplish programs like health care, pension plans , and many more. Conservatives only oppose progress and basically do nothing but give tax brakes to their rich friends.
Brent any way you cut it this has turned into a major mess. I only hope that the Liberals have learned their lesson and will be more careful about letting large corporations, well any business interests, get too close to them. I want to see them come back in Oct 2019. I like where they’ve gone on climate change, especially with the carbon tax, I like what I’m hearing about the national pharmacare plan and many other policies. They have to turn the page on this and get their message out. They can’t let this dominate the airwaves for another 2 months or it will be too late.
PS Welcome back 🙂
I figured with the Liberals coming back up in the polls Federally, this issue would somehow conveniently pop up again. With the Scheer Conservatives struggling to come up with a credible climate change policy or really any discernible policy, except “we promise to do everything better than the Liberals, trust us, really!”, they were starting to languish.
While this issue was worthy of some discussion and debate, it also become a distraction and has taken attention away from other important things that we should be discussing and debating in an election campaign. I hope this will not turn into the Canadian version of Hillary’s e-mails. Conservatives seem to thrive only by distracting voters from what their real plans are and getting them to focus their attention elsewhere.
Thanks David, it’s interesting you mention Hillary’s emails. Just this morning I told my husband this was shaping up to be another James Comey. Roy said who, and that’s when it hit me, no one remembers who brought a candidate down or why, all they remember is the scandal. I’ll bet most Canadians would be hard pressed to explain what the Ethics Report really said, all they know is the simplistic messages shouted at them by the opposition parties and the media. We’re 10 weeks out from the election. It’s time to focus on what each party has to offer and, as you point out, so far the Conservatives aren’t offering much.
Susan, this is excellent. There is so much here that the media doesnt cover. What happened to unbiased reporting presenting all the facts? There’s a lot here. It still blows me away that JWR ignored advice from her own team. No outside expert advice, she changes her mind about consulting with the former chief justice. ???? Why? Ive shared on FB.
Thanks JCV. The level of inaccurate and misleading reporting on the Ethics Report is breathtaking. The opposition parties wanted to call the Ethics Commissioner before the House ethics committee for more information, The Liberals have a majority on the committee and voted it down. One Liberal, Nathaniel Erskine-Smith, voted to bring the Ethics Commissioner before the committee. The press said Erskine-Smith “broke ranks” and voted with the Opposition. Erskine-Smith said the reason he voted that was was not because he agreed with the Opposition but because he wanted the Ethics Commissioner to “sit right there so he could answer questions about how he got this analysis so completely, completely wrong.” Erskine-Smith has a Master of Laws degree from Oxford in constitutional law and political philosophy. The press ran with Liberal MP sides with Tories, instead of Liberal MP thinks Ethics Commissioner balled it up.
Should we be surprised?
Yes, you ought to be more than a little PO’d with this affair!
After all, consider the alternative; that the public service and our elected representatives follow the letter of the law and the more power and influence one has the closer to black-letter law one must hew the line.
It’s absolutely ridiculous!
It’s been abundantly obvious that JWR has some princess issues that interfered with her ability to govern for the common good. And she had help.
Your jaundiced view, Susan, of the Canadian media is well-placed. I would not, for one second, miss their absence nor regret their passing.
Political Ranger, the Canadian media seems intent on burying itself. Just the other day Twitter lit up with a story about the National Post putting their own research on top of a story written by a New York Times reporter. The “research” came from Breitbart (Breitbart!!) The National Post is owned by Post Media.
I can’t wait to see what they’re going to say about the Liberals, the NDP and the Greens in the fall election. Here’s the link https://twitter.com/JesseBrown/status/1165316203826622464
The comment that the Ethics Commissioner “misinterpreted his own act and his jurisdiction” fails to recognize that the Act says what the EC says it is. The EC is not judicially reviewable due to parliamentary privilege. The Government remedy for the purported misinterpretation is to amend the Act. They have done that.
Thanks Brendan, that was a quote from a legal scholar who teaches and writes about democracy, politics, government ethics, constitutional conventions, human rights, and international law. I don’t have the qualifications to justify his statement…I’m simply passing along the fact he made it and it deserves consideration.