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Without more information, SNC-Lavalin affair is mere spectacle

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Photo: Jody Wilson-Raybould/Facebook

Albertans' concerns over allegations of impropriety surrounding Jason Kenney winning the leadership of the UCP have been swamped by accusations that Justin Trudeau violated the rule of law in his dealings with Jody Wilson-Raybould over the prosecution of SNC-Lavalin.

SNC is charged with bribing Libyan officials between 2001 and 2011 to win lucrative contracts. The SNC executives involved are no longer with the company. SNC has implemented new ethics and compliance rules to prevent this illegal conduct in the future and it's going to be punished one way or another so it's been lobbying hard for a deferred prosecution agreement (DPA) to avoid going to court.

Director of Public Prosecutions (DPP) Kathleen Roussel decided against a DPA. Jody Wilson-Raybould supported the DPP's decision and the prime minister, his staff in the prime minister's office, and others were not happy about it.

Wilson-Raybould was shuffled out of justice into veterans affairs and quit cabinet. Last week she appeared before a parliamentary justice committee to explain what happened. She acquitted herself well.

At the end of her testimony she said, "I imagine Canadians now fully understand that in my view these events constituted pressure to intervene in a matter, and that this pressure -- or political interference -- to intervene was not appropriate."

Actually no, as much as this Canadian respects Wilson-Raybould, I do not fully understand her view. Here's why.

The testimony

Wilson-Raybould's testimony is clear on the facts. She wears two hats. She's the justice minister (a political role) and the attorney general (a non-political role). The prosecution of SNC falls under her responsibility as AG, which requires her to make decisions in a non-partisan, objective way, free from political influence.

As attorney general Wilson-Raybould has prosecutorial discretion. She can issue directives to the prosecutor on specific prosecutions or take over the prosecution altogether as long as she gives notice she's doing so in the Canada Gazette. In other words, it is perfectly legal for Wilson-Raybould to tell the prosecutor how to prosecute SNC -- whether to go with a DPA or go to court.

Wilson-Raybould confirmed it's OK for cabinet ministers to draw the AG's attention to important public policy considerations relevant to her decision on how a prosecution will proceed, but she can't let such considerations influence her decision. In other words, it was OK for the PM, finance minister and others to raise the economic implications of a conviction in the SNC case.

She said the PM, staff at the PMO and others were not happy with her decision to support the prosecutor's decision to take SNC to court and over the course of four months contacted her and/or her staff 20 times to discuss other "solutions."

Wilson-Raybould says these contacts amounted to undue pressure and were inappropriate.

The prime minister and Wilson-Raybould agree that the PM did not direct Wilson-Raybould to change her mind on SNC, leaving the decision up to her. They agree there was significant contact between Wilson-Raybould and/or her staff and other cabinet ministers, their staff and the PMO, but they disagree on the characterization of this contact. Was it the regular contact between members of cabinet and their staff on a difficult file or was it undue pressure and inappropriate?

The PM's staff, the clerk of the Privy Council, the finance minister and his staff suggested the following solutions:

  • Wilson-Raybould could talk to the prosecutor about her decision not to offer a DPA.
  • A member of Wilson-Raybould's staff could "reach out" to the department of public prosecutions to discuss the prosecutor's decision.
  • Wilson-Raybould (in her capacity as attorney general) or the prosecutor could hire external counsel, a retired Supreme Court judge for example, to review the prosecutor's decision not to offer a DPA.

Wilson-Raybould offered her own solution. She said SNC could send her a letter and she'd forward it directly to the prosecutor. It's unclear what she expected the prosecutor to do with it.

The first two suggestions are silly given Wilson-Raybould's position she wasn't going to change her mind and intervene to make the prosecutor offer SNC a DPA. However, this rationale undermines Wilson-Raybould's own solution that SNC could send her a letter and she'd forward it to the prosecutor. All three suggestions create the impression she might reverse her position when it's clear she won't.

The solution of an external legal opinion from a retired judge makes sense given the legislation was new and there was no precedent governing how the DPA process should work. However, Wilson-Raybould rejected it as being inappropriate. She didn't say why, but some legal experts have suggested a second opinion would undermine the rule of law by allowing someone (who?) to do an end run around the AG.

This is puzzling. Lawyers working for corporations retain outside counsel for a second opinion when they face issues that could seriously harm the company if they get the law wrong. Bringing in outside counsel is not an abdication of legal responsibility or a sign of incompetence. A second opinion provides "air cover" for a legal decision that will be unpopular with senior management and if it turns out the company lawyers were overly cautious, they can change their advice.

It's unclear why Wilson-Raybould rejected the opportunity to test prosecutor's decision with outside counsel -- if the opinion supported her position she'd be vindicated; if it came to a different conclusion, she could have ignored it or revised her position. In either case it would have put an end (temporarily) to the pressure she was under from the PMO and others.

Violation of the rule of law?   

Canadians will never fully understand what happened here.

We'll never know why the prosecutor refused to offer a DPA to SNC.  We'll never know whether 20 phone calls and meetings over four months with Wilson-Raybould and/or her staff created "undue" pressure or was normal interaction on a ground-breaking issue. We'll never know why Wilson-Raybould rejected the offer of an external legal opinion from a retired Supreme Court judge. We'll never know why she resigned as veterans affairs minister -- she said she'd resign immediately if her successor in justice agreed to a DPA; he didn't but she resigned anyway.

All we know is Wilson-Raybould characterized the pressure as "inappropriate" but not illegal.

We also know opportunistic politicians are twisting Wilson-Raybould's testimony to allege the PM tried to get Wilson-Raybould to betray her duty to uphold the law. This is nonsense because she would have upheld the law whether she supported the prosecutor's decision or decided to intervene and take over the prosecution. She had the legal authority to do both.

Meanwhile conspiracy theories abound.

The normally level-headed Elizabeth May is asking whether we should be concerned that SNC's counsel is former Supreme Court justice Frank Iacobucci, the same Frank Iacobucci who is leading the consultation process between the government and Indigenous peoples for the Trans Mountain pipeline.

Online conspiracy theorists speculate this is an effort to replace Trudeau with Chrystia Freeland in order to deliver Canada into the hands of her "good friend" George Soros.

Unless we get more information, this hearing is nothing more than political spectacle, bread and circuses that distract Canadians from issues raging in their own backyards.

Susan Wright is a lawyer with over 26 years of experience in oil, natural gas, petrochemicals and pipelines. She believes that engaged citizens can change the world. She writes a political blog called Susan on the Soapbox. The Soapbox received the 2013 Clawbie award for the best legal blog for a non-legal audience.

This post originally appeared on Susan Wright's blog, Susan on the Soapbox. It is reprinted here with permission.

Photo: Jody Wilson-Raybould/Facebook

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