Let’s get serious about the Shawcross doctrine

So, a follow up report in the Globe and Mail, again by Robert Fife, Steven Chase and Sean Fine, says that some “senior government officials confirmed to The Globe and Mail on Friday that discussions were held with Jody Wilson-Raybould when she was justice minister and attorney-general on options in the case of SNC-Lavalin Group Inc., including shelving a corruption and fraud prosecution to help workers who could be affected if the company were convicted.

The report goes on to say that:

  • The officials, who were granted anonymity by The Globe because they were not authorized to speak publicly, said Canadians should not conflate or confuse a “vigorous debate” in the Prime Minister’s Office or among the PMO and members of cabinet over how to handle SNC-Lavalin’s charges with an effort to put pressure on Ms. Wilson-Raybould;” and
  • A robust discussion is not pressure, one official said. Another official said the PMO had every right to raise the prosecution case with the justice minister, because a conviction could destroy the company and hurt thousands of workers at SNC-Lavalin.

It appears that the unnamed senior government officials believe that “vigorous debate” and “robust discussion” do not constitute an attempt, as the same reporters alleged in an earlier story “to press Jody Wilson-Raybould when she was justice minister to intervene in the corruption and fraud prosecution of Montreal engineering and construction giant SNC-Lavalin Group Inc.” I’m not sure I, or most Canadians can split hairs quite that narrowly.

hartley-shawcross-9031f9f1-e5ed-4dd8-9dae-f37c76b1d48-resize-750One thing we are learning about, as this story unfolds, is the “Shawcross doctrine,” named for the former British Nuremberg War Crimes Tribunal prosecutor and British Attorney General in the late 1940s and early 1950s, which is dealt with in this paper, which says, in part: “The parameters of independence in the prosecution function are also firmly established, and have achieved the status of a constitutional convention. In England, the independence convention is described as the “Shawcross doctrine” based on a well-known statement by Lord Shawcross in 1951 when he was Attorney General in the Labour government. That statement has several elements. First, the Attorney General must take into account all relevant facts, including the effect of a successful or unsuccessful prosecution on public morale and order — we would probably now call this the public interest. Second, the Attorney General is not obliged to consult with cabinet colleagues but is entitled to do so. Third, any assistance from cabinet colleagues is confined to giving advice, not directions. Fourth, responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her. Fifth, and equally, the Attorney General cannot shift responsibility for the decision to the cabinet … [but, while] … Canadian governments have been somewhat late in recognizing this convention … there has been no serious challenge to the Shawcross doctrine in Canada. Occasional lapses by a premier or other cabinet member — as where the premier in full rhetorical flight announces that controversial federal legislation will not be enforced in his province — are the result of ignorance rather than intentional defiance, and have usually been quickly remedied.

So, there are five key principles:

  • The Attorney General must take into account all relevant facts, including the effect on the public interest … and the unnamed officials suggests that the fate of SNC-Lavalin is a matter of public interest;
  • The Attorney General is not obliged to consult with cabinet colleagues but may do so … the reports suggest that officials acting for “cabinet colleagues” consulted with her, whether she liked it or not;
  • Any assistance from cabinet colleagues, including the prime minister himself or herself, must be confined to giving advice, not direction …  and the anonymous senior officials seem to be trying to say that’s all that happened;
  • Fourth, responsibility for the decision is that of the Attorney General alone; the government must not put any pressure on him or her … this, it seems to me, is the rule that was broken by the PMO; and
  • The Attorney General cannot shift responsibility for any legal decision to the cabinet.

It looks to me as though at least one “cabinet colleague,” that being Prime Minister Justin Trudeau, decided to give some “assistance” to then Attorney General Jody Wilson-Raybould, and that “assistance” took the form of both “vigorous debate” and “robust discussion” with someone from the Prime Minister’s Office. I think we can accept the prime minister’s assurance that no one actually “directed” Ms Wilson-Raybould, but that was never the issue. The Good Grey Globe‘s reporters assert that pressure was applied to persuade Jody Wilson-Raybould to intervene in a prosecutorial decision; that, in itself, would be a violation of the fourth principle of the Shawcross doctrine in my opinion and, I think, there are, even without an emergency meeting of the House of Commons Justice Committee, grounds to seek a full, formal investigation by the RCMP and, as Paul Wells suggested, “this needs a commission of inquiry … [because] … This is the sort of thing that, if proven, properly destroys governments.” But, according to CTV News, the current Attorney general sees no need for any further investigation because, he says ““The prime minister has said that these allegations are false. We haven’t had any corroborating evidence there. There hasn’t been anything to my mind that justifies a committee investigation.”Quelle surprise! One hopes the Justice Committee and the RCMP will agree that the word of the Koknee Groper is not the be all and end all.

It appears, to me, that Prime Minister Justin Trudeau put pressure on the Attorney General to intervene in a prosecutorial decision, in clear violation of the Shawcross doctrine: he needs to be held to account for that. The House of Commons Justice Committee and the RCMP both need to be seized with the issue, and parliamentarians and the media need to shout out for a full blown public inquiry … it’s time to gets serious and to hold this government to some ethical standards.

5 thoughts on “Let’s get serious about the Shawcross doctrine”

  1. By all means uphold the sanctity of prosecutorial discretion, even if it means the country will be worse off for it. Justice is the assessment of a process, not some Platonic ideal floating in the ether. Governmental departments often have biases and the Justice ministry has theirs. Statistically it seems that Canada invariably grants foreign requests for extradition. Jurists who practise in this domain see this a an abrogation of justice. The Director of Public Prosecution feels bound by the conventions of an international accord NOT to consider the economic consequences of a criminal prosecution of SNC Lavalin. The government sees a criminal prosecution of said company as NOT being in the interests of Canada. In the end, The people must decide who is looking out for their interests.

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