Shall we deal with the real issue or change the channel?

Two things caught my eye the other day.

The real problem

The first was a lengthy but very insightful and informative piece by Dr Patricia Hughes, a lecturer at the Munk School of Global Affairs and Public Policy at the University of Toronto and a former Executive Director of the Law Commission of Ontario. Dr Hughes says that “We don’t know yet what really the reality of the allegations that the PMO “pressured” (whatever that means) the former Minister of Justice and Attorney General to (in turn) tell the Director of Public Prosecutions to let SNC-Lavalin to enter into a “deferred prosecution agreement” rather than go to trial on charges of bribing officials (and engaging in fraud and corruption) in Libya is. There are a number of possibilities, ranging from “business as usual” to improper political interference that amounts to a breach of the rule of law.” She then unpacks the case and lists some of the things are can all know … Patricia Hughes says that:

  • We know that SNC-Lavalin faces trial for alleged bribery of Libyan officials between 2001 and 2011, that it claims to have “cleaned house” since then and that it has lobbied federal officials extensively, including the Prime Minister’s senior political adviser, Gerald Butts, apparently first for legislation relating to ways to avoid a criminal conviction and then to have the resulting provisions applied to it). (We also know that the Libya bribery is not the only instance of bribery by SNC-Lavalin executives, including in Canada; however, those cases are being addressed);
  • We know that in September 2018, the government included a provision to allow “remediation agreements” (known also as “deferred prosecution agreements”) in its omnibus budget bill (the problems of omnibus bills must be left to another time), with a resulting Criminal Code section 715.3. No one disputes that this change to Canadian criminal law followed lobbying by SNC-Lavalin;
  • We know that there was some discussion about allowing SNC-Lavalin to take advantage of a remediation agreement, which would require the Attorney General Jody Wilson-Raybould’s consent to the prosecutor’s decision to negotiate;
  • We know that the Director of Public Prosecutions, Kathleen Roussel advised the company it would not be invited to negotiate a remediation agreement; and we know that SNC-Lavalin has brought an application to the Federal Court for judicial review of that decision on the basis that it has met the all the.conditions for negotiating an agreement and that not doing so risks the livelihood of thousands of workers; the director of public prosecutions, who did not provide reasons for refusing to issue the invitation (section 715.3 does not require her to do so), has responded by emphasizing prosecutorial discretion and independence;
  • We know the Prime Minister has stated that he placed no “direct” pressure on the former Attorney General to direct the Director of Public Prosecutions (DPP) to enter into negotiations with SNC-Lavalin to reach a remediation agreement and that subsequently, he has stated that he told her that it was her decision alone whether she so direct the prosecutor;
  • We know that there will be at least two “inquiries”, one by the House of Commons Justice Committee and one, at the NDP’s request, by the Ethics Commissioner; and
  • We know a few other things, as well ~
    • We know that SNC-Lavalin is a major company in Quebec that benefits significantly from government contracts and that a conviction on the bribery charges would mean that it could not apply for contracts for 10 years,
    • We know that Quebec is an important, if not crucial, place where the federal Liberals must win a high number of seats to be returned to office, and
    • We know a trial would likely extend into the next federal election; and
  • We know that in the last Cabinet shuffle, Wilson-Raybould was shunted out of the Justice/Attorney General portfolio to languish in Veteran Affairs (not that care for veterans isn’t important, but it is not a high profile portfolio), despite having had a highly credible run as Minister of Justice.

That’s a very good list and I agree that we know all those things but that’s about all we know for sure. We also know what Prime Minister Trudeau said  happened, we know what he says Ms Wilson-Raybould said but until (unless) she speaks for herself we cannot know if anything the prime minister says is true.

Professor Hughes has defined the real issue which is that the Trudeau regime introduced the remediation agreements,  also known as deferred prosecution agreements in its September 2018 omnibus budget implementation bill. Some observers suggest that may have been, partially, at least, done at the behest of SNC-Lavalin. We know know that Ms Wilson-Raybould did discuss the matter with the prime minister, but we have only one side of that story. Pretty much everything else is speculation, isn’t it?

Changing the channel?

The second thing that caught my eye was a small item on Global News which says that: “A popular Halifax cartoonist isn’t backing down after his depiction of the SNC-Lavalin controversy faced social media pushback … [because] … Michael de Adder drew the cartoon of former justice minister Jody Wilson-Raybould and Prime Minister Justin Trudeau on opposite sides of a boxing ring. Trudeau is being advised to “keep beating her up, solicitor-client privilege has tied her hands.”

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But,” the Globel News report says, “what has people most upset is the depiction of Wilson-Raybould tied and gagged.

Now, I, like every other civilized person (I hope), deplore violence against women and while I agree that it ought not be used as an example lest that example, in some perverse way, might serve to legitimize violent acts, this is a “good” political cartoon and, despite what former Liberal Member of the (Nova Scotia) Legislative Assembly Joanne Bernard might think …

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… Mr de Adder is right to be proud of the editorial comment, as drawn. I believe that Ms Bernard, and many others, are, possibly at the command of the Trudeau PMO, trying to change the channel to deflect attention away from the real issue, which hints at, at least, political favouritism and, possible, real corruption, and focus it on almost anything else.

The choice

Canadians need to be watchful and Dr Hughes certainly helps us to do that by saying that: “So: what can we conclude from what we know, from what is reasonable to conclude and from the principle of independence adhering in the Attorney General (and through the AG to the prosecutor)? … [first, she says] … We need to start with the enactment of the Criminal Code remediation agreement provisions, something new for Canada, and something different from a plea deal. A remediation agreement would leave SNC-Lavalin free to bid for government contracts, something that a conviction or plea deal would not permit. Obviously, this is in the interest of SNC-Lavalin, since its reliance on government contracts means that without them, the company risks bankruptcy. But this is also of considerable interest to the Liberals, since they do not want to have to deal with the fallout of that bankruptcy in Quebec, particularly, the loss of thousands of jobs, as the next federal election in October of this year comes closer. It appears that SNC-Lavalin lobbied for this option in the Criminal Code and, being successful, likely had expectations that they would be able to take advantage of it. The rule of law does not permit passing legislation that is targeted at an entity for negative reasons, but these provisions can be employed by other organizations facing economic criminal charges and therefore, while the provisions might have been enacted for the immediate purpose of providing an “out” for the company that lobbied for them, they do not seem to pose a constitutional, rule of law challenge … [and] … The next issue is the extent of the discussion in Cabinet about the use of the remediation agreement approach in this case. Certainly, there are major consequences to an SNC-Lavalin conviction that could affect the public interest, and the potential failure of a large company or threat of withdrawal of a large company from Canada has led in the past to government action, including loans and subsidies. These may be controversial, but they are not uncommon. Here the company’s claim that it has removed the wrongdoers and has developed appropriate methods of preventing the same thing happening again appears to have been accepted. Possibly, there were different views around the Cabinet table. But only one person’s view of how to proceed mattered. The prosecutor exercised her discretion not to offer the company the chance to negotiate an agreement. It seems that various actors, and in particular, the PMO, tried to convince the Attorney General to direct the prosecutor to offer the opportunity to negotiate. The Attorney General refused … [but, she adds] … It is not surprising that the Attorney General would be involved in discussions on this matter; she would be expected to consult colleagues. The issue, of course, is how extensive was the effort to convince her to direct the prosecutor to offer the company the chance to negotiate. The Prime Minister carefully stated that the PMO had not “directed” her to act in a certain way. It is not always necessary to give a direct “order”, however, to make clear one’s intentions about how someone should behave. (Certainly, we recognize that when the source of comments, even oblique ones, is a superior with power over one, such comments can be received as an “order”, particularly depending on the circumstances under which they are made: vide south of the border and the meaning of Trump comments to Comey on giving Michael Flynn a break in his criminal difficulties).

Her closing comments are: “We have two signposts indicating that vigorous exchanges about how to proceed may have passed over into impermissible interference: the Prime Minister’s removal of Jody Wilson-Raybould as attorney general and her appointment into the less visible and wide-ranging Veterans Affairs, without any ostensible reason for doing so and indeed, contrary to her performance as MOJAG (and coupled with that, her successor David Lametti’s quick statement that he might still direct the DPP to enter into the impugned negotiations; and Wilson-Raybould’s statement on her website and its reference to the importance of an independent justice system and 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” (emphasis.added) … [but, she points out] … These are signpoststhey are not definitive. On the one hand, the Prime Minister may have had other reasons, perhaps political, but still acceptable, to remove Wilson-Raybould as AG. It may be that replacing her with someone from Quebec is coincidence or simply a reflection of other political, but still acceptable considerations, and it may be that David Lametti genuinely views things differently from how Wilson-Raybould viewed them. On the other hand, Wilson-Raybould has been a star in Cabinet and has reflected the commitment the Prime Minister has made to working with First Nations and is perhaps not the ideal sacrificial lamb. When the reasons for an action are not obvious, one looks for other reasons. And David Lametti is from Quebec, home of SNC-Lavalin, and if he indicated his views in Cabinet, it is unlikely that the Prime Minister would have made him AG had he expressed opposition to a remediation agreement … [but the key points is that] … These are suppositions, the truth of which may be discovered through the Justice Committee and Ethics Commissioner inquiries. There are lots of anonymous sources involved in the stories everyday in the papers, whether “revealing” that there was “pressure” on Wilson-Raybould, that “pressure” was within acceptable bounds, that Wilson-Raybould is “difficult”. On this last, Liberal MP Celina Caesar-Chavannes described Wilson-Raybould as “fierce, smart and unapologetic” and I share Caesar-Chavannes’s view that “[w]hen women speak up and out, they are always going to be labelled” … [therefore] … whether the discussions were “business as usual”, discussions that could be construed by some and not others as crossing the line to become impermissible political interference in the attorney general’s independence under the rule of law or “discussions” that become directions and actually crossed that line will only be learned when those involved in the PMO, the Prime Minister (who claims both solicitor-client privilege and cabinet solidarity), Wilson-Raybould, Lametti and others from whom no one has yet heard have told their stories … [and] … For me, however … [and for me, too] … one question lingers. Obviously, Jody Wilson-Raybould was disappointed in her cabinet demotion. leading her to write her statement defending her record as MOJAG. But she did more than that: she made a pointed statement about the importance of independence and “speak[ing] truth to power”, leaving us to infer that she did exactly that. What she did not do, though, is resign. An AG faced with direction, order, instruction, rather than advice, consultation, suggestion, gentle persuasion ought to resign and this she did not do. Again, when faced with reality, it may be difficult to “quit” on a matter of principle. Yet this is required if we are to uphold the rule of law. Should we take her decision not to resign to reflect that whatever exchanges took place did not quite enter impermissible territory, even if stronger than we might otherwise want to see? Or did she, perhaps, not appreciate that the exchanges were as serious as they were; if so, this was no doubt brought home when she was removed from her position. From this perspective, it would be interesting to know what the conversation between the Prime Minister and David Lametti was about before the Prime Minister appointed Lametti to replace Wilson-Raybould.

The very clear points made by Professor Patricia Hughes are the real issues and there is enough in them to merit further, detailed investigation by the Ethics Commissioner, the House of Commons Justice Committee and, I daresay, the RCMP and, perhaps, even a full scale public, judicial inquiry. This is not the time for Liberals to try to change the channels.

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