As the 2019 Canadian election campaign began
the media were a swirl with new stories
about a possible RCMP investigation of prime minister Justin Trudeau.
The conservative party leader, Andrew Scheer declared
that the prime minister was probably guilty of the offense
obstructing justice under the criminal code.
A few weeks earlier Canada's ethics commissioner Mario Dion
had issued a report concluding that the prime minister had been
guilty of unethical behaviour in violation of the conflict of interest act.
The charges of possible criminal wrongdoing,
and the ethics commissioner's finding that the prime minister had violated
ethical rules set out in the conflict of interest act
stemmed from a matter involving former justice minister
attorney general, Jody Raybould Wilson,
and the possible criminal prosecution for bribery of SNC-Lavalin.
Lavalin is a Montreal based engineering and construction company
with an estimated fifty two thousand employees throughout the world,
including roughly nine thousand in Canada.
It is Canada's largest construction company.
Between 2001 and 2011 Lavalin officials are alleged
to have paid roughly fourty eight million dollars in kickbacks
to Libyan government officials in order to procure a pipeline,
water infrastructure, and airport construction contracts
worth billions of dollars.
By the autumn of 2018, it became clear that Lavalin
would be prosecuted for having violated Canadian law
that forbids the payment of bribes to foreign officials
in order to secure contracts.
There was, however, a way to avoid a criminal prosecution,
and the very serious consequences that could ensue
for the company and its thousands of employees.
It's called a deferred prosecution agreement,
and it's entirely lawful.
But for this to happen, the attorney general
Jody Raybould Wilson at the time, would have had to agree.
She did not
Notwithstanding that the will of the prime minister
and his government was the Lavalin be spared to criminal prosecution,
the possibility of being banned from receiving
Canadian government contracts for a period of ten years.
On Friday, the twelfth, 2019, Ms. Raybould Wilson,
who had been removed from her positions as justice minister
and attorney general a month earlier
but was still a member of cabinet, resigned from the government.
Two weeks later, she told the country in a live broadcast
from the house of commons committee on justice and human rights
that she had been the target of inappropriate and repeated influence
attempts by the prime minister, his principle secretary, Gerald Butts,
and others in the prime minister's office.
These are some of the facts of the case based on which one might conclude
that things did not look very good for the prime minister.
But they're not the only facts that matter
and understanding the Lavalin affair and the actions
of prime minister Trudeau
and of his former attorney general Jody Raybould Wilson
And while it may seem, and probably did seem to most Canadians,
that this was a story about corruption on the part of Lavalin
and on ethical behaviour, and possibly even criminal wrongdoing
the prime minister and those around him
in order to get Lavalin off the hook,
it was far more complicated than this
Indeed, this is fundamentally a story about conflicting
and ambiguous rules relating to cabinet solidarity,
the special role of the justice minister and attorney general
under Canadian law, and doing business in a global economy
in which some governments and regimes play by rules
that many Canadians, and certainly the laws of Canada,
find to be unacceptable.
So, let's start with the collective responsibility of cabinet,
or what is sometimes called cabinet solidarity.
This is a constitutional convention.
One of those important norms of the Canadian constitution.
It requires that the disagreements that may exist among members
of the government remain behind closed doors,
and that in parliament and before the public,
the government speak with a single voice.
a particular minister is unable to do this,
then he or she should resign.
A study by Sharon Sutherland, of one hundred and fifty one resignations
from the federal cabinet between 1867 and 1990,
found that twenty eight of them involved a minister's
to support a policy of the government.
But matters are more complicated than this.
One member of cabinet, the person who is both the attorney general
and the minister of justice, appears to be exempted by law from the norms
and requirements associated with cabinet solidarity.
The transition book for the minister of justice states
that this person shall quote,
“exercise his or her political judgment as a member of cabinet,
except when providing legal advice,
which must be independent, and non-partisan.” Unquote.
As attorney general, this same member of cabinet is responsible for, and again,
I quote, “the regulation and conduct of all litigation for, or against
the crown, or any department in respect of any subject
within the authority of the government of Canada.
Expressed in plain language this means that the cabinet minister
who was attorney general and justice minister
is not subject to the same rules of cabinet solidarity
that bind other members of the government
when carrying out his or her specific ministerial role.
If therefore, the attorney general decides
that a criminal prosecution of SNC Lavalin should proceed
then the fact that the prime minister, and most other members
of the government disagree, is neither here nor there.
The country's chief law officer has the ultimate say
on whether charges under the laws of Canada will be laid.
This is what Jody Raybould Wilson told her fellow members
of parliament and the Canadian public
in explaining her resignation from the government.
So, at this point, the affair may seem black and white
without a hint of grey.
Well, it isn't.
In 2018, the parliament of Canada passed an amendment
to the criminal code that allows
for what the law calls remediation agreements.
These are more commonly known as deferred prosecution agreements.
Agreements between the government and a corporation
that admits to criminal wrongdoing, but that is able to avoid
a criminal prosecution under the terms of a negotiated settlement.
Deferred prosecution agreements have existed
in the United States since 1999, the United Kingdom since 2014,
France since 2016, and Australia since 2017.
They also exist in Germany, Singapore, and some other countries.
Critics characterize them as a sort of
get out of jail free card for corporate wrongdoers.
But another point of view,
one that the Canadian government and spokespersons
for then attorney general Raybould Wilson advanced
when the deferred prosecution agreement law
was making its way through parliament in 2018,
is that these agreements quote,
“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 the wrongdoing.” End of quote.
This goal of minimizing the harm to workers,
pensioners of the corporation, and others who might stand
to be very negatively affected if the corporation was to be tried
and convicted criminally, is stated in the 2018 law.
As Phil Prince observes in his 2019 article in policy options,
quote, “a criminal conviction hurts more than a company.
It hurts a lot of innocent people.” Unquote.
He adds that the difference between the criminal prosecution
and the deferred prosecution agreement options involves
how each views the public interest.
The criminal prosecution route, expensive, lengthy,
with a large burden of proof and no guarantee of a conviction,
focuses narrowly on whether there was criminal behaviour
and if so, the punishment that the law requires.
The deferred prosecution agreement route does not absolve
a corporation of penalties for criminal wrongdoing,
and indeed a judge must agree to any negotiated settlement
between the crown and a corporation.
At the same time, however, a negotiated settlement
balances the criminal actions of the few,
the corporate officials who knew of and authorized the paying of
bribes or other illegal actions, against the benefits of the many.
That perhaps thousands of employees and their families,
shareholders, suppliers, and pensioners
to say nothing of the economic welfare of the communities
in which such a corporation's activities are based
In short, the deferred prosecution agreement option
invites the government, including the attorney general,
to take a broader perspective on the public interest.
So, if a deferred prosecution agreement has such merits,
why was the attorney general Raybould Wilson unable to see them
in the particular case of SNC Lavalin and the decision
whether to proceed with a criminal prosecution
for its apparent bribery of Libyan officials
in order to secure lucrative construction contracts?
Well, I suppose this is the question that only she can answer.
But the answer could be as simple as this,
the criminal code, in addition to acknowledging
why the deferred prosecution agreement option exists,
also states that quote,
“the prosecutor must not consider the national economic interest,
the potential effects on relations with a state other than Canada,
or the identity of the organization, or individual involved.
Must not consider the national interest.
How can one square this with the fact,
a fact that is also stated in the law and that forms the very basis
for the deferred prosecution agreement option,
that criminal behaviour needs to be weighed against the broader
public interest that specifically includes the economic consequences
of criminal conviction for Canadians and potentially
whole communities who were innocent of any wrongdoing.
Here's Phil Prince again.
Quote, “what the attorney general claims was undue
pressure from the prime minister, his principal's secretary,
and others was more likely reasonable diligence on their part
with the goal of persuading the attorney general
that her decision to support criminal prosecution did not
accord with the spirit and objectives of the 2018 legislation.” Unquote.
This is not, of course, how former attorney general
Raybould Wilson saw the matter,
nor how other political parties, or most of the media have framed it.
In her testimony before the house of commons committee
on justice and human rights, Ms. Raybould Wilson
stated categorically that quote,
“a barrage of people hounded me and my staff.” Unquote.
And that she was subject to, in her words, veiled threats.
Asked if she believed that all of this added up
to illegal behaviour on the part of the prime minister,
his principal's secretary, Gerald Butts,
and the others who attempted to make the case for
a deferred prosecution agreement and thus to persuade her
to change her mind about a criminal prosecution
of SNC Lavalin, Raybould Wilson said, no.
The question that has been asked most often
since the beginning of this whole affair is this,
did the pressure that the prime minister and others
put on attorney general Raybould Wilson constitute behaviour
of an unethical or even criminal nature?
But this is not the only question that has been and should be asked,
another is this, why was then attorney general Raybould Wilson
unmoved by the consequences of the prime minister,
and apparently most of her cabinet colleagues believed
would ensue from a criminal prosecution,
and that provide the very reason
for the deferred prosecution option in the first place.
What do you think?
Perhaps you need more information before deciding
where you stand on what is admittedly a complicated matter.
Raybould Wilson's testimony to the house of commons justice committee,
or at least her opening statement to the committee.
Just Google Raybould Wilson testifies on SNC Lavalin controversy,
February 27, 2019 CPAC, that’s C - P - A - C.
Follow this up by reading
Phil prince's may 22, 2019 article in policy options.
The title of which is, conflicts written into
deferred prosecution agreement regime.
Which of these very different ways of framing
the story do you find most convincing?