The SNC-Lavalin Controversy in IV? Acts: A Play About the Rule of Law

Former attorney general Jody Wilson-Raybould’s resistance to the pressure by various actors to instruct the director of public prosecutions to offer to negotiate a remediation agreement (the Canadian name for a deferred prosecution agreement) with SNC-Lavalin and her testimony before the House Judiciary Committee have been explained in different ways: respect for the rule of law and the role of the attorney general, a lack of pragmatism or political experience, too much sense of self, a desire for revenge. The difference between the prime minister’s and other members of government’s relationship to political interference, and the clerk of the privy council’s view, on the one hand, and that of Wilson-Raybould, on the other, has been attributed to their different backgrounds, the inner circle and the outsider. And there have been questions: if the pressure was so bad, why didn’t she resign earlier; why did she resign after she’d accepted the “demotion” to veterans affairs; couldn’t she just accept the normal way of doing political business? Has her willingness to say no and “speak truth to power” changed the way of doing business, or, put another way, raised the standard for government conduct? (I wrote about the SNC-Lavalin controversy some three weeks ago here on Slaw.)

Should we conclude, as one recent commentator has, that “[t]here’s no scandal here” or, put another way, the prime minister, the PM’s principal secretary, the clerk of the privy council, at least one other cabinet minister and various and sundry others continued to assail the attorney general to change her mind (interject a brief reference to the coming election) and when she didn’t — skip a beat — she was demoted, but so what?

It is tempting to think of this as a play, one that plays out in four acts.

Act I

In the play’s prologue (as it turns out later) and before most of the audience files in, the director of public prosecutions (DPP) decided in the fall of 2018 not to offer SNC-Lavalin an opportunity to negotiate a remediation agreement. Short of the prosecutor’s abuse of their power, prosecutors’ decisions are meant to be independent of political pressure: while general policy as determined by government (sometimes reflected in legislation, but not necessarily) might affect these decisions, politicians are expected to steer clear of particular decisions in order to maintain impartiality, a fundamental element of the rule of law. A prosecutorial decision not to offer a remediation agreement or, in other words, to charge an organization (or continue with a prosecution) is the same as any other decision. However, the remediation agreement scheme has a particular twist: a prosecutorial decision to offer an agreement requires the attorney general’s approval under section 715.32 (1)(d) of the Criminal Code.

We do not know why. the DPP made the decision she did, although we do know that SNC-Lavalin was charged with bribery and fraud. This is significant because section 715.32(3) prevents the prosecutor from considering the national economic interest in deciding whether to offer an opportunity to negotiate a remediation agreement:

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.

And this is significant because sections 3 and 4 of the Corruption of Foreign Public Officials Act address bribery. (The Act ratifies the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.)

Later in October, SNC-Lavalin sought judicial review of the DPP’s decision.

An apparently unrelated cabinet shuffle occured in mid-January; however, shortly afterwards, the audience, now gradually taking their seats, learns that one important move in that shuffle constitutes Act II of this rule of law play.

Act II

The prime minister needs to shuffle his cabinet at least somewhat because his Treasury Board president, Scott Brison, resigned. The PM replaces Brison with Jane Philpott (who enters in a significant way in Act III, scene 2). That means he has to move her from Indigenous services. Somewhat surprisingly, he replaces her with Seamus O’Regan who had hardly put in a stellar performance in veterans affairs. Even more surprisingly, O’Regan’s replacement is Jody Wilson-Raybould, until then minister of justice and attorney general.

A new character is introduced in David Lametti who replaces Wilson-Raybould. What appeared to be a somewhat boring production for the average audience now takes on an air of mystery: why was Wilson-Raybould shunted aside, there’s no obvious reason, although it may be because she criticized the government’s progress on reconciliation, perhaps? The reason for the move gives rise to much speculation (see, for example, and a passionate defence from Indigenous leaders (“The cabinet shuffle says little about Jody Wilson-Raybould — and plenty about the government“).

Audience members who have taken their seats for Act II start to realize there is more to the cabinet shuffle than meets the eye when they are made aware of Wilson-Raybould’s unusual monologue on her website in which she explains about the hybrid role of the minister of justice and attorney general and piques the interest of the audience with a powerful observation about speaking truth to power.

The role of the Attorney General of Canada carries with it unique responsibilities to uphold the rule of law and the administration of justice, and as such demands a measure of principled independence. It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. This is how I served throughout my tenure in that role.

On this note, the audience leaves for the intermission, chatting about what appear to some to be rather odd and unexplained events in the play. They return for Act III, which begins to explain the mystery coming in the earlier acts.

Act III: Scene 1

On February 7, 2019 there is a sudden frisson of excitement when The Globe and Mail reports that the PMO had pressured Wilson-Raybould, as attorney general, to direct the DPP to offer to negotiate a remediation agreement with SNC-Lavalin. Many audience members scramble to review their programs to catch up on Act I.

After a relatively slow performance, with just a few moments of drama, the play now takes off. The prime minister denies he or the PMO “direct[ed]” Wilson-Raybould to take particular action about SNC-Lavalin. Those audience members following closely realize that The Globe did not allege any actual direction, but rather pressure. Gerald Butts, the PM’s principal secretary, comes on stage to resign, but is lost in the crowd of characters of various ilk declaring that some sort of inquiry into the events from Act I forward needs to be established. The House Justice Committee decides to hold a hearing and the ethics commissioner accepts a request to look into the matter.

On February 12th, Wilson-Raybould resigned as veterans affairs minister, perhaps not coincidentally following the prime minister’s comment that “her presence in cabinet should actually speak for itself“, meaning that the relationship between them is fine.

Act III quickly moves to scene 2, with the audience now rapt with attention.

Act III: Scene 2

Act III: Scene 2 takes place in the present,in which the characters relate a series of flashbacks from their own perspectives.

The audience hears a seemingly partisan clerk of the privy council provide a commentary that is meant to ensure that the subsequent narration (particularly by Wilson-Raybould) is understood in a particular way. (In an earlier blog, I suggest that Michael Wernick had been sent to diminish the impact of Wilson-Raybould’s testimony.) The partisan nature of the testimony of a man who is supposedly the top non-partisan civil servant is perhaps explained by the view that “[o]ur top public servant should not be wearing so many hats” (as Donald Savoie suggests). In any event, he provides a strenuous defence of the PM.

And the audience hears from the central character, the former attorney general, who dominates this scene as she relates in detail the various ways in which, over a period from September 6 to 20, 2018 and then in various meetings over October to December, the PMO, the clerk of the privy counsel, the finance minister’s office and the PM himself attempt to convince her to change her mind and, instead, to instruct the DPP to offer to SNC-Lavalin a chance to negotiate a remediation agreement. (Also see “Wilson-Raybould alleges ‘consistent and sustained’ effort by Trudeau, officials to ‘politically interfere’ in SNC-Lavalin case“.) She does not change her mind.

The gist of these various conversations is that if SNC-Lavalin is convicted, it would mean the loss of jobs and other negative economic consequences; there are threats about the company’s moving elsewhere. Wilson-Raybould describes these as “inappropriate” and she says they must stop, although they do not. However, the audience is mesmerized by the following exchange, as described by Wilson-Raybould:

The PM again cited potential loss of jobs and SNC moving. Then to my surprise – the Clerk started to make the case for the need to have a DPA – he said “there is a board meeting on Thursday (Sept 20) with stock holders” … “they will likely be moving to London if this happens”… “and there is an election in Quebec soon”…

At that point the PM jumped in stressing that there is an election in Quebec and that “and I am an MP in Quebec – the member for Papineau”.

I was quite taken aback. My response – and I remember this vividly – was to ask the PM a direct question while looking him in the eye – I asked: “Are you politically interfering with my role / my decision as the AG? I would strongly advise against it.”

The Prime Minister said “No, No, No – we just need to find a solution.” The Clerk then said that he spoke to my Deputy and she said that I could speak to the Director.

And now audience members recall what they saw in Act II and the mystery of the PM’s moving Wilson-Raybould from justice and attorney general to veterans affairs is cleared: not a direction, perhaps, but a demotion and some might infer, a warning to others not to hold the line or, as some might see it, to be “reasonable” and a “team player”.

Act III, scene 2 continues as the audience waits for other characters to testify, including Gerald Butts (tomorrow – Wednesday – morning), whose resignation in Act III, scene 1 may have been forgotten by some members.

However, there is an important development off-stage about which the audience hears in a voice-over: Jane Philpott, who had moved to Treasury Board in Act II, resigns from cabinet on March 4th, citing loss of confidence in the government’s handling of the SNC-Lavalin situation; this provides unanticipated drama to a play that seemed to be finding its own steady rhythm. It suggests that the government is crumbling from within and that the PM is losing control. The impact, however, will not be known until Act IV, which the playwright is still frantically completing.

Intermission

The audience mingles, exchanging their thoughts and disagreements about the play so far. (Taken from letters to the editor in The Globe and Mail.) One audience member believes the PM would have been “negligent” had he not raised the economic consequences of a criminal conviction; another thinks Wilson-Raybould has been “intransigent”, others praise her courage, yet someone else contends she is out for “revenge” (all from letters on March 2nd) and someone else takes a similar view, seeing her conduct more generally “as an inability to compromise, achieve consensus, or be a team player“. For some the play may not have been worth watching, since it simply relates something we already knew about how business is done in Ottawa; yet others argue that the play tells an important story, that of someone acting with integrity, a not commonplace phenomenon, at least some in the public seem to think (March 1st).

Act IV: Denouement

In the process of being written.

Live Reviewing

On the legal side of the equation, the DPP’s decision not to offer SNC-Lavalin the chance to negotiate rather than face a prosecution and possible conviction is within prosecutorial discretion; however, Wilson-Raybould’s testimony is clear that she considered the matter herself and decided not to interfere with that decision. This is one side of the equation.

On the other side, the political side, SNC-Lavalin had lobbied various government actors on many occasions. Indeed, the remediation scheme appears to have resulted from that lobbying and the company continued to lobby to have its negotiation provisions apply to it. When that failed, it lobbied again. For the political side, the detriment to SNC-Lavalin if it could not negotiate a deal raised the spectre of negative repercussions for the government in Quebec in the next election this coming October. And it would be inconsistent with the Liberals’ emphasis on jobs; having the loss of jobs associated with their actions if they did nothing about it would be, they no doubt thought, potentially dire.

The problem arose when these two worlds intersected and the attorney general refused to intervene to allow SNC-Lavalin to avoid prosecution. Ministers take care of their constituents — and their constituencies. There are some circumstances they are not to interfere with, such as cases before a court, but, while people may complain about it, it’s expected that they will try to influence decisions to benefit their own ministries or (depending on the circumstances, perhaps more questionably) their constituencies or supporters. Ministers belong to the political world. Except one minister: the attorney general. Some letter writers and some commentators, in diminishing the importance of Wilson-Raybould’s resistance to pressure, have apparently treated her as if she is a minister commes les autres, but in that role, she is not. The attorney general is more of the legal world.

The PM seemed to recognize that when he said the decision was hers, and hers alone. Yet the continued arm-twisting, brow-beating, intimidation — words that might be used to describe the pressure exerted on Wilson-Raybould — raises the question: when does pressure become impermissible? Although Wilson-Raybould called the pressure inappropriate, she did not resign, perhaps because she resisted it and thought the matter over. This despite her concern that in referring to the Quebec election (as did the clerk of the privy council) and his own status as a Quebec MP, the PM thought she should take political considerations into account in reaching her “independent” decision (or, by then, changing her mind). Because she did not change her mind, and no one went over her head to give direction to the DPP, she may have thought that while these “conversations” had gone far beyond the consultation that she herself could legitimately undertake with colleagues, the integrity of the position of attorney general remained intact.

It is difficult to see the PM’s subsequent removal of Wilson-Raybould from justice and attorney general as anything other than the removal of someone who was not willing to “go along”, who was not willing to take narrow political or economic factors into account in making a legal decision when he thought they should. In appointing a new attorney general, he would expect a greater readiness to do exactly that and, indeed, David Lametti has indicated he might still instruct the DPP to offer to negotiate an agreement. However, he also indicated in his testimony before the House Justice Committee that he understands the Shawcross doctrine:

the Attorney General can’t be an island. The whole point of the Shawcross doctrine is that an attorney general can speak with cabinet colleagues about a variety of different considerations that might be pertinent to his or her decision in any particular case.
What is clear in the Shawcross doctrine is that, subsequent to those discussions, when an attorney general puts on his or her hat as attorney general, only the appropriate considerations that the attorney general himself or herself has in mind will be the basis for that decision.

The independence of the attorney general is a fundamental element of the rule of law. As the Supreme Court of Canada said at para. 30 of Law Society of Alberta v. Krieger, “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” It is one way that we try to ensure that no one is above the law and that law will not be implemented in a partisan way. The PM and other actors on his behalf, in making significant and prolonged efforts to convince the attorney general to act in a certain way, threatens this basic constitutional principle. This does not mean non-political issues cannot be raised and in fact, one would expect the attorney general to consult with colleagues in making a decision. But not for political actors to make every effort to override the decision she has made.

One might conclude, having watched the play and the performers (or heard the narration of what others said), that Wilson Raybould is indeed “intransigent”, but about the significance of the constitutionally mandated independence of the attorney general. There seems to be one reason for where we are today: Wilson-Raybould treated her position as attorney general seriously, recognizing that it was not a cabinet position “like any other”, and the prime minister and his cohorts quite simply failed to understand or dismissed the significance of that. Or they underestimated Wilson-Raybould’s strength and commitment to her integrity.

What follows in Act IV remains to be seen, both on an individual level (among other issues, will the PM permit Wilson-Raybould and Philpott to remain in caucus? removing them does not seem to be a winning strategy for him) and an institutional level (will steps be taken to make the attorney general and minister of justice two separate positions?). On this latter, this course has been raised before, most recently by Adam Dodek in a Globe and Mail opinion piece (and see his earlier Slaw post). The attorney general would not sit in cabinet, while the justice minister would. However, although it might be easier for the holder of one or other of these positions to identify their responsibilities, it is not clear to me why the pressure exerted on Wilson-Raybould as a member of cabinet would not be as easily exerted were she not in cabinet. After all, these meetings occurred outside cabinet meetings.

Those who believe that Wilson-Raybould’s actions may result in a new standard in Ottawa may be somewhat disappointed and I’m again somewhat bemused by that thinking. She attributes her integrity and willingness to tell her truth to her Indigenous upbringing and culture and I do not doubt that is the case: her moral compass derives from that heritage and experience. But that heritage and experience are not necessary to acting with integrity, to having the strength and a willingness to stand up. Others find a similar moral compass from other sources (Jane Philpott appears to be one). But this episode is not likely to change the political world and Wilson-Raybould’s resistance to pressure and political partisanship, as it has played out before the audience watching this play about the rule of law, is all about the distinctive position of the attorney general.

We could hope that the significance of that distinctive position has been made more lucid by these events and perhaps it has. However, I think it fair to say that at least some of those involved in the debate in the public square have not appreciated the distinction.

Comments

  1. I agree with your comment about the English system. The English PM and AG are members of the same party and share the same political fate. The AG can’t be kicked out of cabinet but can be relegated to the backbenches or, conversely, promoted to cabinet.
    What do you think about the conflict of interest argument?

  2. Patricia Hughes

    Doug, what “conflict of interest argument” are you referring to?

  3. The idea that the dual office of AG and Minister of Justice is inherently a conflict of interest. I wonder if it is. There are certainly conflicting interests but all ministers are battered by conflicting interests (doing the right thing, getting elected, competing for resources, etc…) I think of a conflict of interest as requiring either two clients with adverse interests or a lawyer whose personal interest is adverse to that of their client. But most legal commentators seem to assume there is a conflict. You were one of the few who picked up on the weakness in the English AG model so I’m interested in your views on what is put forward as the second reason to change our current model. Thanks.

  4. Dominique Boucher

    Natalie Drouin testified that JWR forbade her to provide the Privy Council with a legal opinion her office had prepared explaining the options available to the AG about the reversal of the DPA decision.

    One of these options was to seek outside counsel.

    Drouin also testified that JWR told her to not speak about it ever.

    Obviously there are divergence of opinions in the Justice dept. Given that divergence of opinion, wouldn’t it make sense for the AG to have requested an independent opinion (outside counsel)?

    JWR testified that she did her Due Diligence. She did not pursue any of these options.
    JWR had obviously pre-judged this issue and rendered her decision quickly. I supposed is it her prerogative to do so.

    But, is the AG considered infallible?

  5. Doug, I went back to the Department of Justice Act to ensure I kept clear the responsibilities of the Minister of Justice and responsibilities of the Attorney General (in my view, they are not clear cut, which would make separation difficult unless they were rewritten). It is probably preferable to think of the AG as a subset of the Minister of Justice in the sense that both of them have similar responsibility on their face. The Minister has the overall authority regarding the law (“the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the province”) and specifically is to “generally advise the Crown on all matters of law referred to the Minister by the Crown”, while the AG “shall advise the heads of the several departments of the Government on all matters of law connected with such departments” and (the main point here) “shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada”. I suppose we might have a situation where, for example, cabinet decides that the government wants to take a hard line on a particular area of law, but as AG, the Minister of Justice believes that to do that the Crown would have to put forward a losing position in a particular case. Is that a conflict of interest as we’re thinking about it here? (There may be better examples, but this is the one I’ve thought of right now!) This would obviously pose difficulties for a person who presumably as Minister of Justice would be advising cabinet that taking a hard line might not be desirable, but who would be overridden by cabinet/PM (in this scenario), yet would be faced with doing something as AG that is generally not acceptable (defending what is accepted as a losing case – not one where there is at least a somewhat reasonable position to take, but a definitely losing one). Certainly, there are situations where the AG has taken a case that he/she is pretty sure to lose, though. But here’s a situation where the Minister of Justice/AG might consider resigning. Is this helped if the Justice Minister and the AG are two different people, with the AG outside cabinet. I suppose, but the overlap in roles seems to me to be more significant and limiting the AG only to litigation might lose more than having one person who is able to understand the full picture and advise accordingly. What do you think?

  6. Patricia, thank you for your thoughtful and detailed answer. I hadn’t intended to put you to a lot of trouble.

    I agree the federal division of responsibilities is a bit of a muddle. The insertion of the duty of the Minister to advise on provincial legislation puzzles me. The reference to administration of justice, in my province (NS) at least, is to policing, corrections, courts admin etc… and in that respect makes sense because we don’t have a public safety department. (Here’s Nova Scotia’s https://nslegislature.ca/sites/default/files/legc/statutes/public%20service.pdf) To my mind it is more clear cut and the two offices are separate and equal tho’ consolidated in one person. But I had a hand in designing it so maybe that’s why it makes sense to me. Our goal at the time of the creation of NS’s Justice Dept was to preserve the separate role & authority of the AG. So I thought that the duty to see that the administration of public affairs was in accordance with the law ought to have been an AG function but I lost that one. I wonder now if our drafter was influenced by Canada’s.

    On to the question of conflict. You make a good point about dubious cases but I don’t think it is a conflict of interest in the legal sense. It is the same as any lawyer with a belligerent client. That is, the private lawyer has competing interests: keep the client happy and send a bill, on the one hand (or keep my prestigious cabinet position) and, on the other, maintain a reputation for good sense. In any case, I suggest that the AG, having superintendence of litigation, gets to choose whether to take the case forward or not.

    No need to answer this. I’m sure you have other columns to write.

    Doug

Leave a Reply

(Your email address will not be published or distributed)