This is a political commentary of a radically different sort than we have become used to, at least in the current Canadian political environment.
When it comes to national politics, I am one of those ageing and irrelevant “has beens” or, perhaps more accurately, a completely self-acknowledged “never was”. In the simplest of terms, I am just one more ordinary Canadian who happens to have a perspective on the unbridled travesty now unfolding on our national stage. For that reason, while I expect not an inch of polite deference for what follows based on who I am or what I do, I also hope, whatever readers may think of me, that the views set out herein will not be presumptively dismissed or disregarded by those who really do exercise power and influence in this land, including our leading politicians and political commentators. As an admittedly flawed human being, my only hope is that my analysis of the SNC Lavalin affair will stand or fall solely on the substance and soundness of the arguments it advances.
THE CONTEXT WE ARE DEALING WITH
I am mindful of the fact that thoughtful enquiry and serious analysis on almost any question is no longer in vogue. We live in an age of online outrage, where bullying and, often, baseless opinion, is given far more attention, not to mention credence, than it deserves. The metaphysical “distance” inherent in digital engagement seems to have normalized, if not altogether legitimized, an environment of increasingly intense personal attacks, however irresponsible or unfounded. The sort of rational argument and debate that used to be the aspirational hallmark of modern liberal democracy is now, sadly, under siege on the internet. Many understandably fear that the very essence of “civil society”, including respect for a balanced and informed opinion, is now in serious jeopardy. Anonymity in the virtual sphere, coupled with an absence of enforceable rules or even broadly accepted behavioural norms, has militated mightily not only against the emergence of politically “balanced” communities but also respect for a moderate opinion. There is no Speaker of the House capable of maintaining any sense of order or decorum in our online chambers of debate. Sadly, politicians at both of the extreme ends of the ideological spectrum have learned how to capitalize on our exploding social media platforms, where no one is able to hold anyone accountable for the spontaneous blasts and bursts of outright ignorance that now pass unchallenged for legitimate political commentary. The notion that anyone other than pathetic public policy nerds, like myself, would actually read and consider arguments advanced in this format in 2019 is one that I acknowledge is naïve. Please forgive me for retaining hope and driving on. Canada matters enormously to me.
There is a second enormous challenge in dealing with the issues that the debate over the SNC Lavalin matter has unleashed. In stark contrast to what seems to have become acceptable in online engagement, this is also an era that demands an unprecedented degree of “respect” and “sensitivity” in the context of genuinely in-person and interpersonal dealings. The demonstration, as opposed to the mere articulation, of authentic and genuine empathy, particularly for those from segments of society who have unfortunately suffered from intolerance, disrespect, discrimination and other systemic abuses, has become a core requirement of our contemporary culture, especially for those in positions of leadership and power. Those who have historically suffered on account of their sex, sexual orientation, race, religion or heritage, especially including Canada’s indigenous peoples, are now rightfully and boldly asserting their expectations for freedom, equality and respect, not only in their workplaces and communities but also in the political agenda of the nation. This is a development that is long past due and decidedly welcome. Given that one of the two central protagonists in the debate is Ms. Jody Wilson-Raybould, it has also a development that has completely “re-framed” the context of the discussion. My focus will be on de-personalizing the issues, hoping that the facts, the law and stone-cold logical analysis relevant to the matter will prevail.
The SNC Lavalin affair is remarkable, in large part because it has unfolded against this new and complex back-drop for contemporary political debate. The circumstances surrounding SNC Lavalin have been presented to Canadians as a serious “scandal” where so-called “red lines” of proper political conduct have been crossed, not only by our Prime Minister, but also by his political and apolitical (i.e. civil service) staff including the Clerk of the Privy Council. There is no question in my mind that the debate that has erupted is one that could be described not only as politically and emotionally charged, but also one that is entirely unhinged from sober logical analysis and sound legal argument. The fact that the Internet has enabled an explosion of armchair moral outrage including, occasionally, violently aggressive verbal attacks from the radical left and right is no surprise. The shock is in the extent to which Canada’s opposition politicians, aided and abetted by what appears to be a shockingly lazy mainstream media, have played to the demonstrable ignorance of the online trolls with their outrageously mistaken analyses of the relevant facts, coupled with their totally erroneous understanding of the applicable law. Depending on who is holding the microphone or the pen, the allegations now being asserted against our Prime Minister and his government range, on the one hand, from political immorality and corruption and, on the other, to outright illegality up to and including actual criminality. These very serious charges have been accompanied not only by solemn declarations that the Prime Minister has suddenly lost his moral authority to govern, but also by repeated demands for resignations, public enquiries and, most remarkably, even criminal investigations. All of a sudden, the national public debate has become dominated by outrage from opposition politicians, reinforced by enthusiastically complicit and unquestioningly acquiescent attacks upon the Prime Minister in our headlines, news stories, editorials and political punditry.
THE LINES WE HAVE CROSSED
In my respectful opinion, however, the proverbial “red lines” that have been crossed in this sad national saga thus far, rather than those properly giving rise to the predictable hue and cry of political scandal, are those much more subtle and sophisticated boundaries that have been breached by the government’s critics, without any serious challenge to date. Opposition politicians, together with an army of sympathetic media columnists and commentators, have fallen victim to a perverse new form of political correctness. Specifically, it is my submission that the contemporary preoccupation with “empathy” for a particular point of view, articulated by someone with a perspective that has never before had proper and equal voice on our national stage, has, in this particular case, quickly fallen down a fatally slippery slope resulting in uncritical “endorsement” of, and “agreement” with, the actual substance of the position taken. In my opinion, the politicians and pundits have crossed this line without due regard for, or analysis of, the fundamental logic which underpins the very soundness of the argument being made and, hence, its ultimate legitimacy. But empathy, however necessary or appropriate, ought never to be uncritically converted into endorsement or agreement. I intend to demonstrate that this is one crucially important line that, whether through purely political contrivance or anti-intellectual convenience, is still being strategically ignored.
Jody Wilson-Raybould is an impressive Canadian who, unquestionably, has accomplished much in her distinguished career. Independently of the important fact that she, by virtue of her acknowledged talents and commendable hard work, has broken tremendous barriers for both women and indigenous Canadians, her long record of public service and selfless commitment to Canada and Canadians is beyond question. In so many obvious respects, Ms. Wilson-Raybould’s achievements are worthy of enormous credit and, yes, respectful deference. Not surprisingly, the respect she has earned also seems to have resulted in Canada’s indigenous community fully rallying to her support on the matters in dispute. The problem is that, while it is clear her supporters, from all backgrounds and walks of life, are standing shoulder-to-shoulder with her in the position she has taken and the allegations she has made, that does not translate into support for her legal justification for what she has done because, to be blunt, that remains a total mystery. It is my submission that, while the respectful deference and community loyalty she has won from many Canadians, is well deserved, these factors must never undermine the standards of basic responsibility and answerability in matters of conduct by elected officials to which Ms. Wilson-Raybould must be held, both for her judgment and her conduct on the specific matters in question. Normal accountability for, and critical examination of, the positions she has taken and the allegations she has made have been twisted and compromised for the many charged with such responsibility, by a festering fear of being found to be behaving in a way that opinion leaders and ordinary Canadians might regard to be politically incorrect. Politicians of all parties, as well as most media commentators, have so obviously been wary in posing tough and direct questions, making critical comments or otherwise challenging her position on SNC Lavalin in any way that might be seen as exhibiting a lack of empathy for the peculiarities of what she has described as her “lived experience” (i.e. who she is, where she comes from and what she has been through). Nor, it seems, have they undertaken the careful analysis of the applicable facts and law that would enable them to do so. As a result, no serious or coherent intellectual challenge has yet been presented to test, much less counter, Ms. Wilson-Raybould’s point of view as to what the existing law contemplates, permits and, indeed, requires of the Minister of Justice and Attorney-General of Canada (AG) in circumstances such as these. I intend to do so here, in part because it is impossible to do so effectively via Twitter or Snapchat.
The second line that has been crossed in this matter by those on the political attack is, in my humble opinion, the blurring of another critically important distinction. No single person’s opinion as to the requirements of the law, even when articulated with moral certainty, whether self-righteously or not, by someone of the presumed authority of Ms. Wilson-Raybould, ought to be accepted, blindly and without question by anyone, whether friend or foe, as a position to which objective moral and legal rectitude should be automatically attributed. The rule of law in matters such as these is rarely a matter of a binary choice, much less moral certainty, as between black and white, or right and wrong. That is why all of our provincial and federal courts of appeal, including the Supreme Court of Canada, consist of a panel of judges, rather than a single judge sitting alone. We look to a team of judges delivering a range of legitimate judicial opinion on what, in any particular case and only upon the rendering of a majority decision, becomes binding law for all Canadians. No one seriously questions Ms. Wilson-Raybould’s honesty, integrity or truthfulness in the statements she has made in relation to the SNC Lavalin affair including, most especially, the evidence she gave last week under oath before the Justice Committee. No one is looking to challenge her testimony as to the authenticity of the personal pressure she felt or the emotional anxiety she experienced as a result of what transpired. But everyone looking for truth should question whether her view as to the rule of law, as it applies in this case, is, without question, demonstrably, exclusively and objectively accurate. I intend to do so via this medium, even though I fear that this sort of traditional form of argument in a liberal democracy may have become an impotent vestige of a bygone era.
The cries of “scandal” from so many quarters demand a thoughtful response, however it is received, because the stakes in this matter are now far too high. The legitimate empathy we all feel for Ms. Wilson-Raybould cannot triumph over a proper and thorough analysis of the legal position she has taken and the political allegations she has made. The potential consequences of saying or doing nothing extend far beyond the impact of the SNC Lavalin affair on the popularity of our Prime Minister or the results of the next federal election. Canadians urgently deserve a resolution of the far more important question as to what sort of conduct by our elected officials constitutes improper or inappropriate political pressure in these circumstances, resulting in a breach of the rule of law. To be clear, improper political pressure, rather than direct interference, political corruption or even criminality as has been alleged by others outside the circle of direct knowledge, is the most that Ms. Wilson-Raybould has thus far alleged or, perhaps more appropriately, conceded. My focus will, therefore, be on decisions she has taken and the actual allegations she has made; not on the outrageously inappropriate and, from an evidentiary perspective, baseless extension of her conclusions which the Prime Minister’s political opponents and media critics are now test-marketing to Canadians.
DEFERRED PROSECUTION AGREEMENTS: THE STATUTORY FRAMEWORK
The concept of a Deferred Prosecution Agreement (DPA) has become a well-known and widely accepted criminal prosecutorial tool in advanced western democracies in relation to foreign corrupt practices (i.e. bribery). It is a prosecutorial tool that, in many respects, is conceptually similar to a plea bargain agreement, albeit focused more directly on organizational responsibility and liability for criminal acts, rather than on individuals accused of crimes. The DPA is, in effect, a variation upon the long and well-established principle of prosecutorial discretion, especially as it has developed in common law jurisdictions.
The exercise of prosecutorial discretion in relation to traditional plea bargains typically involves consideration of a number of relevant factors including, most importantly, the Crown’s prospects for achieving a conviction on the count in question, as well as mitigating factors or circumstances including the conduct of the accused generally and/or co-operation with the Crown from the accused in the prosecution of other related or unrelated matters.
DPAs also generally involve the co-operation of accused organizations with the Crown and the courts and, typically, the fulfilment of certain commitments including organizational reform directed at reducing the possibility of further criminal conduct within the organization, the payment of fines or other penalties and other remedial undertakings appropriate to the situation in question.
The possibility of DPAs being available to Canadian organizations is anything but a novel or unprecedented concept. Within Canada’s legal system, it has long been possible for organizations accused of crimes and subject to prosecutions to be dealt with by alternative means including non-criminal penalties. In the United States, the equivalent of DPAs has been available to deal with accusations of organizational crimes for 20 years. The U.K. introduced its regime in February 2014. France did so in November 2016 and Australia followed suit in December 2017.
Canada has modelled its remediation agreement regime on the comparable U.K. statute. As distinct from the U.S. approach, Canadian DPAs, like plea bargains, are not back-room deals that can be kept secret. Canadian DPAs, in addition to being presented to the court, must also be approved by the Court in the way that pleas bargains are, in order to become binding and enforceable in accordance with their terms.
Reduced to their basics, Canadian criminal justice reforms, proclaimed in force on September 17, 2018, merely codified the context under which the equivalent of a plea bargain might be formally pursued by accused organizations and, in turn, considered by the Crown including, most particularly, the provision of statutory clarity as to the relevant factors to be considered and responsibility for the process pursuant to which such consideration must be given.
In Canada, the relevant factors to be considered and objectives to be achieved in negotiating and concluding a DPA are now specifically enumerated in Section 715.31 of the Criminal Code of Canada(CCC) as follows:
“(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;
(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;
(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;
(d) to encourage voluntary disclosure of the wrongdoing;
(e) to provide reparations for harm done to victims or to the community; and
(f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.”
Clearly, in addition to the sorts of objectives that would guide negotiations in relation to any plea bargain, a DPA exists to insulate innocent parties from harm when they have no responsibility whatsoever for the crimes alleged.
The question then turns to when, and under what conditions, the prosecutor may exercise the discretion to enter into negotiations for a DPA. Again, the criteria are clearly spelt out in Section 715.32(1) of the CCC, which specifies clearly that “The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
(d) the Attorney General has consented to the negotiation of the agreement.
Clearly, the statute specifies that the public interest is an issue for the prosecutor to consider in exercising his/her discretion to enter into DPA negotiations and that the AG’s consent is required. Does that mean that the public interest is a matter for the prosecutor’s discretion alone and that the AG does not have either the jurisdiction or the responsibility to interfere in that determination?
In fact, nothing could be further from the truth. Section 15.32(2) of the OPPA goes on to specify the scope of appropriate consideration for the prosecutor in assessing the “public interest” in the matter and the factors he/she ought to consider, as follows:
“Factors to Consider
(2) For the purposes of paragraph (1)(c) [i.e. determining the public interest], the prosecutor must consider the following factors:
(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
(b) the nature and gravity of the act or omission and its impact on any victim;
(c) the degree of involvement of senior officers of the organization in the act or omission;
(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;
(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;
(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and
(i) any other factor that the prosecutor considers relevant.
Factors not to consider
(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
Note that, while the statute, on the one hand, permits the prosecutor in Subsection 15.32(2)(j) to consider “any other factor that the prosecutor considers relevant” in assessing the public interest, that blanket discretions is strictly and severely constrained by Subsection 15.32(3) directly precluding the prosecutor, when it comes to offences under Section 3 or 4 of the Corruption of Foreign Public Officials Act(CFPOA), from including in his/her consideration of the public interest matters touching on “the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.” This requirement for a determination of the public interest that excludes these factors is directly applicable to the SNC Lavalin case.
This is the very nub of the matter and the profoundly important point of applicable law that, with the utmost respect, Ms. Wilson-Raybould seems to have missed entirely. The responsibility and requirement to consider and act based on an assessment of the public interest that does not tread on the territory of the “national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved” is, as I will shortly explain, the responsibility of the AG alone in consultation with his/her fellow cabinet members.
WILSON-RAYBOULD’S TESTIMONY BEFORE THE JUSTICE COMMITTEE
It is appropriate to direct our attention now to the refreshingly candid but, from my perspective at least, extraordinarily curious testimony that Ms. Wilson-Raybould gave under oath before the Justice Committee on February 27, 2019, following the issuance by Cabinet of the waiver of privilege that she required extending over the duration of all internal discussion and debate in this matter during her term as AG.
Ms. Wilson-Raybould’s opening statement, while crammed with timeline detail, was troublingly shallow and inappropriately limited in scope, given the circumstances and the content of the public debate, including her own comments leading up to the hearing. In summary, her evidence focused on laying out her view of the relevant facts and entirely skirted any meaningful discussion of the applicable law. While painfully outlining all of the various interactions in respect of SNC Lavalin over a period of approximately three months, including meetings, emails, telephone calls and texts between herself and, variously, her staff, the Prime Minister, the Clerk of the Privy Council and multiple political staff in the PMO and Finance Minister’s office, the gist of all of her submissions was to make the case that repetitive attempts to encourage, persuade or convince her to explore alternatives and find solutions in the SNC Lavalin matter all added up to inappropriate political pressure. The rationale that she offered for coming to this conclusion was that she had repeatedly made clear to everyone concerned not only that the discretion to consent to the attempted negotiation of a DPA was hers and hers alone, as provided under Section 15.32(1)(d) of the OPPA, but also that she had “made up her mind” on the core question of whether or not to exercise that discretion. Apart from the important fact that the “pressure” in respect of SNC Lavalin began at or about the very date in September that the DPA regime came into effect, her opening statement disclosed very little of value for purposes of the required legal analysis.
At no time during her statement or in her answers to the questions that followed did Ms. Wilson-Raybould ever once disclose her view as to the most fundamental and determinative of questions on the law governing the exercise of her discretion as AG, including her most basic theoretical understanding as to when, under what circumstances and on what basis it would even have been possible, much less appropriate, for her to exercise her discretion to consent to the negotiation of a DPA. Repeated references during the hearing to the so-called “Shawcross doctrine”, without any substantive amplification whatsoever as to what it was and how it applied, were the only hint given as to the legal underpinnings of the position Ms. Wilson-Raybould was taking. There was also much banter from Ms. Wilson-Raybould about Section 13 notices, publications in the Canada Gazette and personal feelings of concern, even anxiety, as to her perception of pressure being applied. Without disclosing the substance of the arguments actually being advanced by others over the period in any meaningful detail, she thoroughly described the circumstances which, in her view, converted that pressure, initially conceded by her to be entirely legitimate, into something “political” and “inappropriate”. The fact that she did not, either in her opening statement or answers to questions, set out her understanding of the statutory framework governing her role in the circumstances and her understanding of the applicable law is, in my submission, extraordinarily telling. She could easily have done so directly and fully without touching on any details of the SNC Lavalin case or addressing matters that were then “sub judice” and thus off-limits for discussion given her status as an MP. That she did not do so should have raised alarm bells everywhere, particularly among the press and media commentators.
Unfortunately, the extensive questioning by MPs that followed her opening statement was especially disappointing. On the one hand, opposition MPs spent almost all of their time attempting to secure admissions that might either (a) elevate her allegations of inappropriate political “pressure” on the part of the Prime Minister and others to accusations of unlawful direction or interference in the exercise of her discretion as AG, or (b) raise questions as to the veracity of prior public statements of the Prime Minister, or evidence given under oath by the Clerk of the Privy Council, thereby opening an entirely new line of political attack. Neither happened and, to Ms. Wilson-Raybould’s credit, she was consistent in her testimony on both fronts to the extent she actually did provide answers. But over the entire proceedings, the only new “meat” which the opposition or the press was given to chew on and digest was greater detail about the extent, scope and nature of the interactions that she ultimately determined to be “inappropriate political pressure”.
On the other hand, apart from some excellent questioning from Randy Boissonneault (MP, Edmonton Centre) which Ms. Wilson-Raybould refused to answer directly on grounds that, forgive me, seemed completely incoherent, the Liberal approach in questioning her focused strangely on why she did not resign given the unwelcome pressure on point from which she repeatedly complained she was suffering. Had the Liberals focused on whether, in theory, there was some legal or other basis in her mind for her to either resign or be fired as a consequence of what occurred, including the possibility that she was either unwilling or unable to fulfil the legal and other requirements of her role as AG, the hearing might actually have added some real substance, as opposed to mere colour, to the debate.
As it happened, there was little, if any, a real discussion in the hearing as to law and legal framework applicable to the issues at hand, at least as Ms. Wilson-Raybould understands these matters. Apart from her charming and, indeed, intriguing references to “Big House” laws which, as yet at least, have no relevance under Canadian law in the context of the appropriate exercise of the AG’s discretion, the session before the Justice Committee ended up being more about the AGs personal experiences and feelings over the period in question than her legal rights and responsibilities as AG given the matter at hand.
The twin failures, not only of Ms. Wilson-Raybould not addressing her understanding of the governing law applicable to her role in relation to the pursuit of DPAs generally, but also of the Justice Committee to explore that aspect of her thinking, is not only regrettable but remarkable. The complete avoidance of these very questions on the part of opposition spokespersons and the national media, coupled with a transparent unwillingness to explore them, whether due to sheer laziness or a strategic preference for superficiality, is alarming. At no point was this more obvious during Ms. Wilson-Raybould’s testimony than when she was questioned as to whether what she was being asked to do in relation to SNC Lavalin would set a new precedent under Canadian law. While the AG has long had the jurisdiction to issue directions in respect of prosecutions and, even, to assume direct control over them, the mere fact that such a question was asked in circumstances where the applicable legal framework governing DPAs, in particular, finally came into place only on September 17, 2018, is explosive proof of the utter lack of competence on, and familiarity with, the evolution of the law associated with DPAs that was demonstrated in questioning her. Further, the fact that Ms. Wilson-Raybould, in her answer as a former AG, acceded to the questioner’s point by confirming the precedential nature of the matter, without pointing out the self-evident truth, at least to anyone in the know, that prior examples of such interventions would not have been legally possible, is particular damning. In the spirit of sharing one’s “personal experiences”, as someone aware of the legislative history of the matter who was watching, I found myself shaking my head in disbelief as to what was unfolding.
There was a brief moment during the hearing when the discussion veered into an entirely relevant topic, namely the fact that, in Canada, the AG is also its Minister of Justice and a member of Cabinet. Suddenly, it seemed that attention was shifting to an aspect of the entire SNC-Lavalin matter that was central to the questions that needed to be posed and answered, but were being avoided entirely. I am not certain whether Ms. Wilson-Raybould was sub-consciously articulating the inherent tension she had been feeling as a result of her dual role as an elected official because this was at the very root of her discomfort and anxiety, or whether she was merely attempting to divert attention from a proper discussion of her potentially conflicting statutory and political responsibilities in this matter. The fact is that, as Minister of Justice and a member of Cabinet, she cannot so easily escape her political responsibilities or seek to hide behind her other statutory and quasi-judicial role as AG given the law as it stands today. Her suggested solution, being a separation of the two functions as has already occurred in the UK, is not without merit and, thus, worthy of serious consideration, but that is not the point. The fact is that, throughout the SNC Lavalin affair, she was mandated by the law to fulfil both roles.
The mandate of Ms. Wilson-Raybould and all of her predecessors, both as AG and Minister of Justice, is, admittedly, a complex one which has evolved over the centuries and now comprises a broad and varied range of functions which are fundamental in upholding the rule of law. It is also true that there are real tensions between the political and legal elements of the role of the AG. That tension is primarily between being a Minister and a member of the Government while being an independent guardian of the public interest required to perform superintendence functions of a quasi-judicial nature including in relation to discretionary decisions relating to sensitive prosecutions. Whether those tensions are healthy and productive or give rise to impossibly competing demands is a legitimate subject for consideration and debate. Sadly, instead of elaborating on those tensions in terms of her understanding of her roles and responsibilities relative to the SNC Lavalin matter, thereby providing at least some insight into what was motivating both her conduct and her reaction to political input on the DPA question, both Ms. Wilson-Raybould and the committee quickly moved on to other matters of much considerably less interest or relevance to the issues that clearly needed to be addressed. A potentially insightful discussion quickly died and went absolutely nowhere.
For those, like myself, who have lived their lives in the law, whether teaching in law faculties, sitting on judicial appeal panels or working in major law firms across Canada, I believe there was only one issue that gave rise to truly shocking moments in Ms. Wilson-Raybould’s testimony. Those moments occurred when she, acknowledging that she was confronted with requests from others, including those in the PMO and PCO, to consider the potential usefulness of requesting and securing one or more third-party legal opinions as to her role and responsibilities in the circumstances given the known facts and applicable law, repeatedly took the position that she had no use for same because the discretion was entirely hers and, again, she “had made up her mind”. It is hard to know whether her mindset on this question was one of insecurity, the ugliest in self-righteous sanctimony or some understanding of the applicable law that is vastly different than mine. Whatever the case, while Ms. Wilson-Raybould has a well-earned reputation as a prosecutor and indigenous leader, she is not regarded to be a leading scholar in constitutional or criminal law, at least insofar as I am aware. This is not intended as a criticism. But the fact that she so arbitrarily spurned a reasonable option, one which is not only common-place in such circumstances but also generally regarded as being “best practice”, was surprising, to say the least. Perhaps Ms. Wilson-Raybould regards herself to be infallible, but I doubt it. Something else must have been at play. Perhaps she does not believe in the value of expert and independent advice. Whatever her reasons, it is submitted that this was the first of her errors in this matter as AG, inevitably leading to the second and, ultimately, a truly fatal mistake she made which I have elaborated on below.
Finally, I will concede that legitimate empathy for Ms. Wilson-Raybould is appropriately reflected in the belief that her testimony before the Justice Committee, to the extent of the matters covered, was entirely honest and credible. The fact, however, is that the testimony she offered, whether as a consequence of the nature of her opening statement, focused as it was on her “personal feelings and experience”, or in her answers to committee questioning, all posed within an aura of empathy for everything she is and what she stands for, was largely irrelevant and, frankly, unhelpful to increasing the general understanding as to the issues in this matter that need to be addressed and require analysis. The hearing created lots of superficial political noise that the Prime Minister’s critics could use against him, but not much substantive news on the substantive issues in question.
THE RELEVANCE OF LEGISLATIVE INTENT
Words matter. So does silence. The basic language and structure of governing statutes and what they appear to mean is highly relevant. The statutory framework of multiple governing statutes and how they appear to interact with each other is another thing that matters. But full and proper statutory interpretation, at least under Canadian law, is also, and importantly, a function of legislative intent. What political imperatives lay behind the decision to enact the statute? What was motivating the draftspersons in how they designed it? What is the relevant political debate and legislative history surrounding what ultimately emerged and was proclaimed as law?
Rather than descend into an exhaustive discussion on the question of legislative intent, I would only make the following observations:
The CFPOA was enacted by Jean Chretien’s government in 1999, shortly following the adoption, on November 21, 1997, by the Organization for Economic Co-operation and Development (OECD), including Canada, of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention);
Since 1999, a number of cases have been investigated under the CFPOA and some prosecutions have been pursued. In their 2016-2017 report to Parliament, CFPOA prosecutors reported active CFPOA cases involving SNC Lavalin, Cryptometrics, and Canadian General Aircraft (Calgary);
Serious discussion about introducing DPAs under Canadian law finally commenced in 2016 and led to public and other consultations by the Government toward the end of 2017, throughout which time the SNC Lavalin cases under the CFPOA were widely known to be an area of focus and concern;
The CCC amendments finally brought into force on September 17, 2018, leading to the codification of considerations relevant to the negotiation and conclusion of a DPA in relation to prosecutions under the CFPOA, were Canada’s attempt to bring itself in line with the sort of procedural flexibility already adopted in such matters by other parties to the OECD Convention;
In reviewing the language used in the CCC amendments and considering drafting intent, it is essential to note the following extracts from the OECD Convention itself:
a) In the event that, under the legal system of [the relevant party to the OECD Convention], criminal responsibility is not applicable to legal persons, that Party shall ensure that legal persons shall be subject to effective, proportionate and dissuasive non-criminal sanctions, including monetary sanctions, for bribery of foreign public officials (Article 3, section 2); and
b) Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of [the relevant party to the OECD Convention]. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved(Article 5).
This is all relevant to the role of the AG in relation to the SNC Lavalin situation particularly given that Ms. Wilson-Raybould was both AG and a member of Cabinet at the time that the CCC amendments were being drafted, tabled, debated, enacted and proclaimed.
Constitutional convention is also relevant to the issues in dispute but, again, to the very limited extent we can even determine how it was applied in the thinking of Ms. Wilson-Raybould in relation to the SNC Lavalin matter based on her testimony, she seems to have completely missed the point. Constitutional scholars were left wondering what possible relevance there could be to her repeated references to the “Shawcross doctrine” in the circumstances.
The “Shawcross doctrine”, first proclaimed by British AG, Lord Shawcross in 1951 has become a sort of constitutional convention in common law jurisdictions, including Canada, on the question of the AG’s independence in the exercise of matters related to prosecutorial discretion. Its core principals are that:
it is the constitutional duty of the AG to consider and assess all relevant facts, including the effect on the public interest, in the exercise of her prosecutorial discretion;
in assessing the public interest, consultation with cabinet colleagues is not only permitted, but encouraged;
consultation with cabinet colleagues, including the Prime Minister, cannot cross the line between input and advise, on the one hand, to interference and direction, on the other;
constitutional responsibility for the exercise of discretion in relation to prosecutions is the responsibility of the AG alone; and
the AG cannot shift responsibility for any decision related to the exercise of prosecutorial discretion to the Prime Minister or cabinet colleagues.
In the circumstances of SNC Lavalin, it is difficult to see how these principles are relevant except to undermine the position taken by Ms. Wilson-Raybould. By her own direct and unqualified admission under oath, none of her colleagues, including Prime Minister, ever (a) challenged the position that decisions in relation to the exercise of prosecutorial discretion were hers and hers alone, or (b) directed her in, or interfered with, the independent exercise of her discretion. All they are alleged to have done is seek her attention and time for repeated and ongoing consultation and input in relation to the public interest aspects of the case which is entirely permissible. While I respect the fact the she apparently felt “pressure”, none of the evidence that has been tendered by Ms. Wilson-Raybould or anyone else that would support the view that the “Shawcross” doctrine was violated.
The more troubling aspect of Ms. Wilson-Raybould’s repeated references to the “Shawcross doctrine” was her apparent failure to recognize that the application of constitutional conventions (i.e. principles of constitutional law that have never been codified by statute) are and remain subject to the effect of legislation that has been enacted. This is not a matter of legal nuance or side-bar interest, but something central to the very issues in dispute. The “Shawcross doctrine” in Canada, when it comes to the AG’s responsibility to consider the public interest in the exercise of her discretion, has been reinforced and, more importantly, heightened by statutory enactment including not only the OPPA, but also the recent amendments to the CCC giving rise to the possibility of a DPA. It is my respectful submission that, on the evidence that Ms. Wilson-Raybould, herself, tendered, any reference to the principles of “Shawcross doctrine”, especially given those related to the relevance of the public interest, refined and amplified as they have been in Canada by subsequent statute, entirely undermine her allegations that the conduct of the Prime Minister and the Clerk of the Privy Council amounted to political interference that was inappropriate.
WILSON-RAYBOULD’S LEGAL AND PROFESSIONAL DUTIES
Having thus far attempted to set the stage for an honest and open debate, the first position I wish to formally advance here is that it is entirely legitimate to challenge the viewpoint of Ms. Wilson-Raybould, whatever it turns out to be, as to the applicable law that governs in these circumstances. In fact, I will argue here not only that it is imperative that we do so, but also that, if we do, the inescapably preferred conclusion will be that she is patently and demonstrably wrong in coming to the conclusions, however she did, not only that the pressure she was experiencing from the PMO and others was inappropriate, but also that it was improper for her, as opposed to making up her mind once and for all, to continuously consider intervening in the SNC Lavalin matter, thereby leaving the door open to the possibility of issuing a direction to the prosecutor to such effect and/or consenting to a DPA being pursued. With assistance from friends who are legal scholars and teachers with particular expertise in issues of both Canadian constitutional law and international corruption law, it is my submission that, in circumstances such as those that obtain today in relation to SNC Lavalin, Canadian law actually requires, rather than precludes or prohibits, appropriate political input not only into the decision as to whether or not to enter into Deferred Prosecution Agreements (i.e. DPAs), but also as to the exercise of prosecutorial discretion by the Director of Public Prosecutions (Director). My view is that Ms. Wilson-Raybould’s position to the contrary is not merely an error in judgment but, rather, a decision she took directly contrary to Canadian law and the rule of law more generally.
The OPPA has long required political or “public interest” issues to be taken into consideration by the AG when making decisions relative to prosecutions and providing guidance to the Director. Sections 10, 13, 14 and 15 of the Act and the references therein to public interest issues (Section 14) and the right of the AG to intervene in any prosecution, or to assume carriage of the matter, if there is public interest involved, make this quite clear. Moreover, as noted in detail above, this statutory mandate is now further buttressed by the new provisions in the CCC regarding DPAs which came into force in September 2018. In particular, Section 715.3(2) thereof specifically and clearly states that: “the prosecutor[in considering whether or not to proceed with a prosecution] must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.”
But that is only part of the relevant legal framework. In direct contrast and complementary to the above, Section 715.32(1)(d) of the CCC actually requires the consent of the AG to the negotiation of a DPA. Moreover and importantly, the purposes of the DPA regime are clearly set out in Section 715.31. One key statutorily authorized purpose as set out in subsection (f) is to“reduce the negative effects of the wrongdoing of the accused organization on employees, customers, pensioners and others who did not engage in the wrongdoing. These are baldly political and public policy issues that are entirely in line with the terms of the OECD Convention and that the AG, in the exercise of the discretion related to her oversight of the Director in prosecutorial matters, is statutorily mandated to consider.
The obvious and, it is submitted, correct interpretation of the interplay between these two sections of the CCC and the oversight responsibility of the AG as set out in the OPPA is not merely that the Director is precluded by the applicable statute from considering the national economic interests or the effects on international relations in determining whether a DPA is appropriate (i.e. in the public interest), but also that the AG’s clear OPPA oversight responsibilities require her attention to the public interest whether or not the Director is of the view that a DPA should be pursued in any particular matter and irrespective of whether or not she has been consulted by the Director in that regard. A decision by the AG not to intervene in prosecution to require pursuit of a DPA is, as much as any decision to intervene or grant consent to a DPA, an exercise of discretion that must be based on the AG’s considered view of the public interest.
Being a member of Cabinet, it is my respectful opinion that Ms. Wilson-Raybould should have averted her attention to these issues whether or not her consent to a DPA was requested by the Director and she ought to have done so in consultation with those members of the Canadian cabinet that have knowledge of, and are responsible to, Canadians for these issues including, of course, the Prime Minister. Arguably, given considerations of cabinet secrecy, coupled with the national security implications associated with relations with other nations, the only way that any definitive determination can be made as to what constitutes the national economic interest and matters affecting international relations, as well as the relevant and required distinctions between those items and the public interest generally for purposes of establishing the appropriateness of a DPA, is with input from around the Cabinet table. Neither the Director nor his/her delegates have access to such information.
In fact, it is submitted that failure by the AG to consult extensively with Cabinet on these issues whenever they arise would constitute a serious reviewable error. In addition to merely entertaining the input of the Prime Minister and her other Cabinet colleagues, Ms. Wilson-Raybould ought to have been actively engaging it. A decision by the Director not to proceed with a DPA is, itself, an exercise of prosecutorial discretion. The very fact that AG sits at the Cabinet table while the Director does not, not only imposes a duty upon the AG in relation to any decision by the Director touching upon the Director’s view as to whether or not the public interest is at stake on any matter, but also as to whether the Director has inadvertently, unintentionally or otherwise determined the public interest improperly in the circumstances. The AG cannot exercise her discretion, required, either way, to make these decisions or refuse to make them in a vacuum, separate from political and public policy input. And, yes, some of these issues by self-evident necessity will have an impact on provincial or federal electoral fortunes. That does not make the consideration of them improper as she argued.
That is why, on careful reflection and review of the applicable law, Ms. Wilson-Raybould’s allegations about the propriety of the conduct of the Prime Minister and others in this matter make no sense whatsoever. Fellow members of Cabinet, including the Prime Minister and any other Minister with a stake in the matter, ought to have be able to have open political and public policy discussions of the matter. In my view, she should have welcomed this input.
Pursuant to Section 13 of the OPPA, whenever a prosecutorial matter has arisen that raises issues of “general interest”, the Director has a statutorily mandated duty to report the matter to the AG and he or she “must” do so “in a timely manner. This is what Ms. Wilson-Raybould repeatedly referred to in her testimony as a “Section 13 Notice”. Given the nature of the SNC Lavalin case, it is assumed, although the former AG never conceded as much, that the Director issued a Section 13 notice. Given the unique and unprecedented nature of the prosecution in the SNC Lavalin case and the facts surrounding it, then it is clear that the Director’s failure to issue a Section 13 notice would have been a breach of statutory duty and, hence, a reviewable matter.
Once a Section 13 Notice has been issued, the ball is clearly in the AG’s court. Further, Section 14 of the OPPA prescribes that, whether or not a Section 13 Notice has been issued, the AG may, after notifying the Director, intervene in the prosecution in first instance or on appeal whenever the AG is of the opinion that the proceedings raise questions of “public interest” as opposed to the “general interest”, which would include matters of “national economic interest” which, to be clear, the Director is precluded by the CCC from considering or assessing in determining whether or not to proceed with a DPA whereas the AG is not so precluded. The AG may also either:
(a) pursuant to Section 15 of the OPPA, assume control of such prosecution including, for example, for the purposes of pursuing a DPA, after consulting with and notifying the Director; or
(b) pursuant to Section 10(2) of the OPPA, after consulting with the Director, issue a directive respecting the initiation or conduct of prosecutions generally including, for example, a directive to pursue a DPA in circumstances of any prosecution under or pursuant to the CFPO as is the case with SNC Lavalin
SUMMARY OF LEGAL CONCLUSIONS
In summary, it appears that Ms. Wilson-Raybould somehow failed to appreciate that the longstanding prosecutorial oversight responsibilities of the AG pursuant to the OPPA were significantly broadened by both the centrality of “public interest” considerations and the need to exclude “national economic interest” considerations in the exercise of her discretion pursuant to the amended provisions of the CCC. .
From the perspective of the proper legal analysis, the naiveté and nonsense inherent in the public debate on these questions thus far is deeply disturbing. The pith and substance of the matter, from the profoundly crucial perspective of the conduct of the parties and the applicable law, having regard to the duties of Ms. Wilson-Raybould and the discharge of same in her dual role as Minister of Justice and AG, in my humble and respectful opinion, can be summarized as follows:
Her first role is as chief in-house counsel to the duly elected Government of Canada, represented by the Prime Minister and his Cabinet, being its executive branch. This is the only client to whom she owed a direct and inescapable duty.This is the party that, as a consequence of that relationship, is entitled to claim privilege, reflected in a fiduciary duty of confidentiality and loyalty. The privilege in relation to the time she held that office and, given such duty, exercised particular responsibility and authority has been waived. There is no privilege associated with the period following the term of her appointment that restricts her in any way, just the general obligation to maintain cabinet confidence to which all Minister are subject, a long-standing hallmark of our political (as opposed to legal) system which is why cabinet members, upon being appointed, are sworn into what has come to be known as the “privy” council; and
Her second role is as politically accountable Minister responsible for our federal judicial system, where it is her responsibility to oversee the all aspects of federal law not explicitly delegated or assigned by statute to other Ministers, including the law related to the functioning and operations of our judicial system, as well as the legislative and administrative framework that governs it. These are thematters in relation to which she owed a wider duty to the people of Canada. It is a core aspect of her duty in this role to ensure the integrity and independence of our judicial system, its freedom from political and other interference and, respect for the rule of law generally.
It is in the second aspect of her responsibilities in respect of which “conflict of interest” issues may potentially arise relative to the discharge of her first role. These issues must be dealt with in an open, transparent and well-established manner. In particular, a potential conflict of interest would have arisen for Ms. Wilson-Raybould in the SNC Lavalin matter in the event of any related legal, as opposed to political, dispute of any sort, whether civil or criminal, giving rise to actual or potential litigation or prosecution before a court subject to federal supervisory jurisdiction, having the character of either a dispute:
between any party to whom she owes a duty as client (i.e. the Government of Canada, itself, or between the Prime Minister or any member of Cabinet) or any entity in which it or any of them personally hold a direct or indirect personal (i.e. financial or other) interest, on the one hand, and any other party (i.e. individual, corporation or government), on the other; and
between the Government of Canada, on the one hand, and any member of the Government of Canada (including the Prime Minister of Canada) or any entity in which any of them hold a direct or indirect personal (i.e. financial or other) interest, on the other.
So far as I am aware, the AG was under no such conflict of interest in the SNC Lavalin matter.Unless there is something remarkable that has not yet been disclosed about the relationship of the Government of Canada, the Prime Minister or one of his Ministers or unless Ms. Wilson-Raybould, the SNC Lavalin matter raises absolutely no such conflict of interest. I am open to being proven wrong. The only reason I could imagine as to why Ms. Wilson-Raybould might be asserting a conflict is the fact that the Canada Pension Plan holds a shareholder stake in SNC Lavalin, which, in my respectful submission, would be quite a stretch.
In the absence of a conflict of interestof the sort referred to above and reflecting the fact that the governing statutes including the OPPA and the CCC make abundantly clear that the consideration by the AG of matters of public interest, which would include matters of public policy, is not only permitted in relation to the exercise of her oversight of prosecutorial discretion and any lawful assumption of same by her, but also appropriate and, in some cases required. She was the only member of the Government of Canada who had both the jurisdiction and the duty to exercise this discretion.As counsel to the Government of Canada in circumstances where there is no conflict of interest, including the prosecution of the SNC Lavalin matter, she had a duty to consult with the Prime Minister and her Cabinet colleagues, not only to ascertain whether or not, in their perspective, there were public interest and public policy issues that were relevant to the matter and what those were, if any, but to satisfy herself that those issues did not involve “the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.”
Based on the foregoing, I believe that the Prime Minister and his staff and the others involved in the interactions that have been detailed by Ms. Wilson-Raybould in the SNC Lavalin matter, including the Clerk of the Privy Council, were acting entirely properly and within their lawful authority. In my view, no one involved breached his or her duty to the Government of Canada or the people of Canada and there was no improper political interference whatsoever.
Rather, if Ms. Wilson-Raybould refused to keep a continuously open mind and a willingness to consider the public interest in the exercise of her statutorily mandated discretion related to the SNC Lavalin prosecution at the request of her client, the Government of Canada, as represented by the Prime Minister and his deputy, the Clerk of the Privy Council, it is my conclusion that it is she who was in breach of both her statutory (i.e. legal) obligations and her professional duty to the Government of Canada.These conclusion are based entirely on my view of the law and its application to the facts that have been disclosed to date in this matter.
I would never claim infallibility in complex matters such as these. I could most certainly be argued against or even proven wrong. But I want to hear those arguments and Canadian deserve to hear them too. I am open to any other analysis of the facts and applicable law that anyone wishes to table and any counter-argument that may emerge in reliance upon the same.
Unlike Ms. Wilson-Raybould, I would welcome a second, or even a third opinion as to my views set out above. Further, if there are new or materially different facts that come forward either as to the nature or scope of the dealings with Ms. Wilson-Raybould and her staff or as to potentially conflicted interest of the parties, I reserve my rights entirely in relation to the conclusions I have drawn above.
The fact that this dispute revolves around the SNC Lavalin case is a complete red-herring unless and until evidence is tabled that the Prime Minister, the Clerk of the Privy Council or any member of the Cabinet or the Liberal Party itself has an undisclosed interest, financial or otherwise, in the company or was bribed by the company. That would entirely change my analysis.
I know nothing about SNC Lavalin that is not in the public domain. My conclusions in this matter have nothing to do with the actual criminal allegations against them or the facts surrounding those allegations which have been alleged. I know nothing about them. However, no one, including Ms. Wilson-Raybould, is in a position to pre-judge those facts, whatever they are, or the applicable law in relation to them or any other related matter. It may surprise Canadians, but whatever the legal issues surrounding SNC Lavalin are, they are entirely irrelevant and have absolutely nothing to do with any determination as to the appropriateness of the conduct of the Prime Minister or his officials in this case having regard to the applicable law. None of us are privy to what the Prime Minister and members of his Cabinet deem as the Government of Canada on behalf of the people of Canada to be in the public interest. None of what follows about SNC Lavalin matters in the least extent except to the extent it establishes a prima faciecase that SNC Lavalin’s future may have some possible connection to matters of Canadian public interest.
SNC Lavalin is apparently a Québec-based Canadian company which has been around for more than 100 years. Its own website says that it is a globally recognized professional services organization engaged in the engineering, procurement and construction business, both here in Canada and around the world. It is reported to have annual revenue in excess of $11 Billion and annual earnings in excess of $1 Billion. It says it has over 50,000 employees, including more than 9,000 here in Canada, and more than 50 offices worldwide. It claims that its primary financial investors are Canadian pension funds including the Caisse de Depot et Placement du Québec, the Québec Pension Plan and the Canada Pension Plan. Frankly, I don’t know whether any of this is true and I do not care.
It is reported that SNC Lavalin has been investigated under the CFPOA relative to a variety of allegations related to contracts entered into under its former between 1995 and 2012 involving allegations of potential criminal activity that took place outside of Canada prior to management changes made at SNC Lavalin in 2012 in direct response to such allegations. The matters now subject to investigation and prosecution were not even subject to Canadian law enforcement activity until 1999 when Jean Chretien’s government passed the CFPO following Canada’s ratification of an OECD Convention on Combatting the Bribery of Foreign Public Officials in International Business Transactions. The CFPO is Canada’s equivalent of the Foreign Corrupt Practices Act(FCPO) in the US, initially passed in 1977 and amended in 1988 and 1998.
SNC Lavalin has advised that, after March 2012, following the charging and arrest of its former CFO, Pierre Duhaime, three successive SNC Lavalin CEOs, including the current one, have engaged in an overhaul of its senior management team and reform of its policies and procedures in foreign contracting activity including a limitation of the countries in which it is prepared to do business. Notwithstanding its attempts to address historic internal corruption issues, SNC Lavalin remains subject to criminal prosecution today as a result of the refusal of the Government of Canada to enter into negotiations with respect to a DPA.
It has been submitted that the AG’s decision to preclude even the possibility of a DPA has exposed SNC Lavalin to an increased risk of negative effects on the very innocent Canadians who the reforms to the CCC were designed to protect including Canadian employees, customers, shareholders and, ultimately, pensioners
But the actual facts about SNC Lavalin or in relation to any other particular case are not what ultimately matters here in assessing the role and responsibilities of the AG or the conduct of the PM. In any event, as time goes on, facts change. It is my submission that the refusal the AG to take whatever factors are relevant from time to time into consideration in determining whether to consent to negotiating a DPA under Section. 715.32 (1)(d) of the CCC with SNC Lavalin, or any other party when asked to do so by his/her client, the Government of Canada, is a serious and reviewable error of law. The prime source of information as to the qualifying “public interest” should be AG consultations with members of the Canadian Cabinet who is responsible to Canadians for these matters. More than that, ongoing dialogue as to the public interest with the Government of Canada hardly justifies an allegation of inappropriate political pressure.
THE TRAP OF A CLOSED MIND
As MP Boissonneault so ably pointed out in the Justice Committee hearing, it is the longstanding policy of the Ministry of Justice, not to mention common sense, not only that prosecutorial decisions in relation to ongoing matters and proceedings must remain subject to continuous review as the facts and the law in relation to each such matter evolves, but also that prosecutorial discretion continues uninterrupted. By natural and necessary extension, given the inextricably linked role of the AG under the OPPA in relation to intervention in prosecutions generally, as bolstered by the new provisions in the CCC requiring any AG to both consent to DPAs and, by inescapable implication, consider the relevance of the national economic interest and other factors which the prosecutor cannot consider, likewise requires continuous review under continuing discretion. The AG’s suggestion that she had “made up her mind” in relation to SNC Lavalin as if it were a “once and for all” conclusion, flies directly in the face of these basic principles of prosecutorial practice. Ms. Wilson-Raybould’s posture and attitude on the question of continuous review is, based on my experience, not only inappropriate for an AG but wrong as a matter of the exercise of her prosecutorial oversight responsibilities.
THE USEFULNESS OF SECOND OPINIONS
The provision by subject-matter experts of considered legal opinions for individuals or committees required to exercise discretion and take decisions on behalf of organizations in complex matters is ordinary course and a best practice that applies to corporations, associations, municipalities, Crown agencies or the Crown itself. I have already observed that the refusal of the AG to secure an expert and independent second opinion, particularly when encouraged to do so, was not only remarkable for its arrogance but also the fatal flaw in the AG’s management of her responsibilities in relation to the SNC Lavalin file. My basis for this observation is my conviction that any such second opinion, whether from a credible group of academics from one of our leading Canadian law faculties or a major Canadian law firm, would at least confirm that the authority of the AG to consult with, and welcome input from, the Prime Minister and Cabinet colleagues on questions of national economic interest. Whether or not I am correct, the bottom line is that, given that the statutory regime governing the exercise of the AG’s discretion is so new and untested, common sense would suggest the completely welcome contribution of a second or, even, a third learned opinion as to what can, should, should not and cannot be appropriately done from the perspective of input, consultation and discussion about the public interest with the Prime Minister and members of Cabinet.
Sadly, in addition to the failure of the AG to explore this option, I suspect that neither of the opposition parties nor the Prime Minister’s many knee-jerk and arm-chair media critics, including The Globe and Mail which first laid out the facts that broke the story, have either sought or secured a legal opinion from a credible source confirming that the facts of the SNC Lavalin matter, as disclosed to date, give rise to any basis for faulting the Prime Minister or any other official for their conduct, much less sustain an allegation of unlawful, or even improper, interference with the rule of law, much less the criminality that some have alleged. If such legal opinions exist, the public has a right to see them and they should be disclosed. If such opinions do not exist, then the Opposition Leader, NDP Leader, The Globe and Mail, MacLeans and other leading critics of the Prime Minister among the national media owe it to him and Canadians generally to obtain and release same to the public before they utter another ignorant opinion against him and/or his government on this subject. The ignorance and laziness underlying this travesty on the part of both the opinions and demands articulated to date by opposition politicians and the media are both irresponsible and morally wrong. The time has come for the Prime Minister’s critics to “put up or shut up”. This is a challenge, given the circumstances, that they have a moral obligation to meet, failing which they should all tender a formal and abject apology for their indefensibly reckless, indeed negligent, public comments to date.
THE PLACE FOR EMPATHY
I have argued above that, for many, empathy for Ms. Wilson-Raybould in this matter has crossed a line into a passive and unchallenged form of endorsement and agreement with the positions she has taken, whether intended or not. In doing so, I am not suggesting that empathy has no place. As such, it is my contention that the “scandal” alleged is the result of understandable empathy gone tragically wrong both for Ms. Wilson-Raybould and for Canadians.
We could offer empathy as well to our opposition politicians and critical media simply because they do not currently have the opportunity to attack, or report on, a Canadian political leader who is a proven pathological liar and subject to more than 17 ongoing formal investigations, 11 of which are criminal. I can appreciate their frustration and disappointment that our political scene has not delivered the chaos or drama that their contemporaries in other countries wake up to every day. It is poignantly ironic and, perhaps, unfortunate that Canadian media had to deal with the fact Ms. Wilson-Raybould’s testimony before the Justice Committee coincided with Michael Cohen’s testimony in Washington. It is also regrettable that the true elements of traditional political “scandal” (i.e. pay-offs, lies, slush funds, favours owed and favours due) are nowhere to be found in this matter thanks to Prime Minister Chretien’s government’s electoral finance reforms which now keep our corporations out of the backrooms of politics. I simply hope that I can be forgiven for not acceding integrity or truth to the fiction that the Canadian media, notably excepting Barbara Yaffe and Christie Blatchford, have been seeking to promote in relation to SNC Lavalin.
At the same time, I respect the fact that, Canadian politicians have not previously had the opportunity to “make political hay” over allegations of corrupt foreign practices by Canadian corporations, as politicians, reporters and commentators have been able to do in other lands. I am thinking, for example, of the allegations and proceedings against Siemans (Germany), Marubeni (Japan), ALCOA and Goodyear Tire (US) and, most recently, Shell (Holland), alol of which are a matter of public record. The unfortunate reality is that Canada has few corporations like SNC Lavalin, whose business occupies a global footprint.
It is likewise difficult to marshal empathy for Opposition Leader, whose own engagement with SNC Lavalin’s issues last fall only confirms a certain hypocrisy in the matter. The fact that he has leapt to the attack, up to and including the embarrassing over-reach inherent in his demand for the Prime Minister’s resignation, is testimony more to the cynicism of an effort to appeal to his anti-Quebec western base than to a genuine concern for Canadian companies, shareholders, employees, customers and pensioners. One could only imagine his response and his attitude about the appropriateness of DPAs in the event that PotashCorp or one of the major Alberta oil companies were confronted by challenges similar to those caused by SNC Lavalin’s former management.
The NDP leader’s “me-too” shortcomings are easier to understand and empathize with. As a socialist, he is intellectually incapable of understanding the link between the ability of major Canadian corporations to carry on business and the economic welfare of thousands of working-class Canadian workers and pensioners. Perhaps his solution would be to nationalize SNC Lavalin in exchange for an amnesty.
In any event, while empathy is an important value that always has a place when there are matters in dispute, I am reminded of what a very wise man once told me:
“Too much of anything, whether good or bad, is rarely a good thing”
In my respectful submission, “empathy” in the matter of SNC Lavalin has already gone way too far.
In concluding that Ms. Wilson-Raybould erred in the discharge of her duties as AG and in setting out that viewpoint here, I want to make clear that I am neither a constitutional nor criminal law expert. I have relied, in part, on input and opinion of others. My professional expertise and practice are restricted to the areas of corporate and debt restructuring, structured finance and securitization. While I have led large corporations and charitable organizations, my experience in government is extremely limited.
I concede that I have been a volunteer Liberal all my adult life. However, apart from paying my way through law school in the early 1980s, working as a speech-writer for the government of the Prime Minister’s father, I have never earned a penny from my political involvement. I ran for Parliament twice in Oxford, the Ontario riding where I grew up, losing to the same multi-term Conservative incumbent in elections (1984 and 1998) that the Liberal Party lost, the second time falling short by only 2% of the vote. That result, in retrospect, was probably a good thing for the voters of Oxford. Although the experience cured me from ever again seeking elected office, it did not dull my commitment in any way to the mission of the Liberal Party of Canada.
I have never sought nor secured a political appointment and, to be candid, I would never take one if offered. Finally, I have no relationship whatsoever to SNC Lavalin, whether as counsel, shareholder, employee, advisor or even as an acquaintance with any of its executive. Nor have I have ever engaged in lobbying of the Government of Canada on behalf of SNC Lavalin or any other party. In publishing this commentary, my conscience is entirely clear. For me, politics has been a matter of the heart and, to a lesser extent, the mind. The quid pro quo game of some is one that has no interest for me.
I am no longer a Liberal insider. I did not seek or secure the permission or consent of the Prime Minister or any member of his Cabinet to publish this paper. I have had no direct or indirect communications with the Prime Minister, the Clerk of the Privy Council, Mr. Butts or anyone else involved in this matter.
I acknowledge that the stream of ignorant and irresponsible comment about the SNC Lavalin affair has angered me profoundly. But that has nothing to do with SNC Lavalin and absolutely everything to do with a general disregard for a serious consideration of the application of the governing law to the relevant facts. The relevant fact are not, in any sense, the facts related to SNC Lavalin or the allegations against it but, rather, the facts as to the various interactions of the representatives of the Government of Canada with the AG that, only incidentally, were in respect of SNC Lavalin. I hope to be among those on the leading edge of an alt-Centre movement behind a thoughtful backlash against the misguided nonsense as to what is relevant that now splits and spews upon all of us from the hard left and the hard right.
As a final point, I would be devastated if anyone, particularly Ms. Wilson-Raybould, interpreted any of this as a chauvinist or sexist attack. As the father of 5 daughters of whom I am enormously proud, and grandfather to another little girl, I consider myself to be a feminist and a huge supporter of equality and opportunity for women. I hope one of them will one day be elected to the Parliament of Canada and, perhaps even become AG or Prime Minister. If what I have written has offended the sensitivities of Ms Wilson-Raybould or anyone else in any way, I extend my most sincere apologies.
THE FUTURE OF MS. WILSON-RAYBOULD
The composition of Cabinet is the exclusive jurisdiction of the Prime Minister. Although I know none of the circumstances surrounding the Prime Minister’s recent cabinet shuffles or any related discussions that occurred, I take him at his word. There is no question in my mind, given all of the foregoing, that the Prime Minister had both the technical and moral right to seek or impose a resignation upon Ms. Wilson-Raybould in her role as AG on account of what I have argued was the neglect of her clear statutory duty. He chose not to do so, offering her a re-assignment within Cabinet that she initially accepted but ultimately resiled from, for reasons that still remain completely unclear.
Notwithstanding all the foregoing, I am delighted to learn, however, that Ms. Wilson-Raybould has announced that she will remain as a Liberal MP and contest the coming election as a Liberal. I hope that, soon, she is also able to return to Cabinet to support the Prime Minister, serve her community and advance the broader interest and needs of Canadians generally. None of us is either perfect or infallible. We have all made mistakes in our lives, including most definitely me. If my viewpoint on these questions is correct, Ms. Wilson-Raybould, despite all of her accomplishments, is no less and no more than we all are – flawed human beings trying to do good but capable of error.
I look forward to campaigning together with Ms. Wilson-Raybould in the next federal election as Liberals everywhere unite behind the Prime Minister to fight for what we believe in, including a strengthened middle class, reduced poverty, continuing economic growth, continued technological innovation, a more sustainable and green economy in hopes of a healthier planet, greater respect, dignity, equality and opportunity for all Canadians including our indigenous breather and sisters and, yes, although well down the Liberal priority list, justice for the innocent victims of foreign bribery scandals.
And, despite the critique set out above, in all her future endeavours, I wish Ms. Wilson-Raybould well.
In conclusion, I congratulate the Prime Minister and his Cabinet for their discipline and restraint in dealing with this matter. I feel horrible for what is happening to him through no fault on this part that I can determine. I also congratulate the Clerk of the Privy Council for having the courage to know that condemning extremism does not transform him into a partisan.
Finally, I encourage all thoughtful Canadians to take a deep breath.
We are better than this.