Legal expert Andrew Roman digs deep into the bombshell report on the SNC-Lavalin affair issued by Canada’s Ethics Commissioner, Mario Dion, and criticisms of that report by Errol Mendes, a professor of constitutional and international law at the University of Ottawa. Who was right, who was wrong? Read on.

For the original version of this posting, see here.

For more analysis by Andrew Roman, check out his blog here:
https://andrewromanviews.blog

Background

Canada’s Parliamentary Ethics Commissioner (EC), Mario Dion, released his bombshell report on August 14 [EC Report]. He found that Prime Minister Justin Trudeau had violated section 9 of the Conflict of Interest Act by attempting to pressure former Attorney General Jody Wilson-Raybould (JWR) to terminate the criminal prosecution of SNC-Lavalin for his own political benefit. Errol Mendes, a well-regarded constitutional law professor, has criticized the EC’s report, arguing that Dion misinterpreted his own act and exceeded his jurisdiction [Mendes Opinion]. However, in my view, Dion got it right, and Mendes got it wrong. Here’s why.

If it was ethical for a PM to try to end a criminal prosecution for political benefit to himself and his party it would also be ethical to try to start a prosecution for political benefit. Neither type of political interference is consistent with the rule of law in a democracy.

Criminal Prosecutions Are Not Like The Economic Regulation of Business

Mendes wrote:

“What is then gaping in the report is whether Section 9 is designed to catch conflicts of interest that further not only the personal interests of government officials like the prime minister, but, given that governments frequently advance private interest through subsidies, tax changes or exemptions in regulations, is limited only to situations where government can in no way claim it is advancing the public interest.”

Mendes’ three examples are all about the economic regulation of business by a government.  A Prime Minister secretly pressuring an independent prosecutor to terminate a prosecution and instead, to negotiate an agreement with the accused bears no resemblance to a government changing the tax laws or subsidizing or exempting an industry.  Economic regulation is done via a statute or regulation, providing the public with transparency and political accountability. This case is the very opposite of the examples Mendes used. In fact governments do not frequently advance private interests by interfering with criminal prosecution decisions; they never do that because it is unethical.

By way of background, I have earlier posted comments on the SNC-Lavalin issues here: [https://andrewromanviews.blog/2019/02/19/the-prime-minister-and-the-attorney-general/] and here [https://andrewromanviews.blog/2019/02/25/rumours-of-death-the-panic-over-snc-lavalin/] and here [https://andrewromanviews.blog/2019/03/11/its-your-decision/]

1.   Justin Trudeau is Not the Government of Canada

Mendes fails to distinguish between a government action under a statute or regulation and the actions of an individual member of Parliament who is also a member of the government.  Justin Trudeau is not the Government of Canada. The EC looks at the ethical conduct of individuals not governments. The attempts to influence former AG JWR were not the actions of the Government of Canada under a statute or regulation, or a cabinet decision, or under any other clear legal authority. It was the clandestine action of an individual, his staff and others under his control.

Mendes’ criticism is wrong for two further reasons.

2.   The Key Word is “Improperly”

Mendes neglects/omits the function of a key word that is undefined in section 9: “improperly”.  That word matters. The PM can seek to influence in some areas, but not where to do so would be improper. So what is proper or improper about what the PM did?

To apply the word “improperly” requires making an ethical judgment.  This judgment has to consider what was actually done, not just the claimed motivation for doing it.  Mendes uses the words “is limited only to situations where government can in no way claim it is advancing the public interest.” On that interpretation section 9 would become completely useless.

Any politician can always claim to be advancing the public interest in some way, and obviously will do so if accused of misconduct. That is exactly what the PM said when the story broke: he claimed to be protecting 9,000 Canadian jobs. To determine whether the claim is believable and validly excuses the conduct complained of is the EC’s job; it is why the office was created, and why the PM asked the EC to investigate.

No PM or Minister regardless of political party will ever say “I did this out of self-interest because I wanted to protect my seat in Parliament and win the next election for my party.” Instead, a noble public interest motivation will always be “claimed”. There is no way to know what the PM actually believed, but if section 9 is to mean anything, someone has to make decisions about the actions behind the alleged virtuous motivation.

What matters is the propriety or impropriety of the actions of the individual, not what reasons or excuses the individual gives for those actions.  The EC cannot simply take at face value whatever virtuous motive the person being investigated claims. Otherwise every EC investigation would have to be closed as soon as the politician being investigated claimed they had acted in the public interest. In that case we might as well close the office of the EC.

The question Mendes’ article doesn’t address is: under what circumstances is secret political interference with the ‘constitutionally independent role of the Attorney General in criminal prosecutions’ proper? Mendes’ analogies to tax changes and other economic regulation by government don’t help because these aren’t relevant to an individual’s efforts to influence the decisions of the AG in prosecutions.

The EC Did Not Exceed His Jurisdiction

Mendes goes on to say:

“Finally, the commissioner then goes outside his jurisdiction in asserting that, given his reading that Section 9 covers any time government advances the financial interests of corporations, …..”.

Unless I’ve missed a line, my search of Dion’s report did not find these words. Dion was discussing the conduct of an individual, not that of the entire Government of Canada.  Again Mendes has replaced an individual who may have a conflict with the much broader word “government”, and has left out the word “improperly”. This semantic shift mischaracterizes the ECs’ job of assessing the conflicts of interest of individual members of Parliament.

Dion’s Analysis Was About Conflict of Interest

Mendes continues with his criticism of Dion by saying:

“This approach is straying outside what can be regarded as a conflict of interest analysis and moving his mandate into the highly complex area of constitutional principles regarding prosecutorial independence, and the specific constitutional roles of ministers and senior government officials who interact with the attorney general.”

Here is just a bit of what Dion actually wrote:

“In addition to the numerous instances where SNC-Lavalin’s private financial interests were raised, the evidence showed that private political interests were also put before Ms. Wilson‑Raybould, directly or indirectly, on at least four separate occasions.”

In one of these four occasions the PM specifically mentioned his political riding and its relationship to SNC-Lavalin, suggesting a potential political detriment to his own election if the company is prosecuted.  Is it really a proper criterion for a prosecutor to consider, when deciding whether to prosecute someone, whether the prosecution will help or hinder the PM’s election campaign?

In determining whether the PM acted improperly Dion should be free to use whatever relevant facts or law may be applicable to the situation. Conflict of interest analysis doesn’t exclude consideration of the applicable constitutional principle of the independence of the Attorney General in prosecutions. Quite the contrary. There is nothing wrong with considering it improper to try to influence a constitutionally independent AG to overrule a constitutionally independent prosecutor.  In my view, something constitutionally improper is more improper, not less improper than a mere financial conflict of interest (like the PM’s free family vacation trip with the Aga Khan, the subject of a previous EC report).

Whether the area of constitutional law is complex or simple is irrelevant. The role of the AG is constitutional. Should Dion have pretended it was not? If so he could have been criticized for that error.

Constitutional Principles Are Not the Property of Law Professors and Courts

Mendes also says:

“This [constitutional law] is the domain of constitutional experts providing advice to governments, the courts and especially the top courts of parliamentary systems.”

Am I detecting a bit of academic ego here? Constitutional law is not the exclusive preserve of professors of constitutional law, nor of the courts. Furthermore, Dion, as a former Assistant Deputy Attorney General with a distinguished career in government, would have participated in reviewing numerous constitutional opinions and reading numerous constitutional cases over many years. I would expect his understanding of the applicable Canadian constitutional law to be the equal of any constitutional law professor. The constitutional law decisions of the Supreme Court of Canada and Professor Edwards’ authoritative texts on the constitutional role of the AG quoted in Dion’s report demonstrate his knowledge of this area of law.

I see Dion’s judgment to fall within the range of reasonable outcomes, even though another Commissioner might have found that the PM’s conduct was not improper.  It remains to be seen whether the PM will take the risk of challenging Dion’s jurisdiction in the Federal Court. If Dion has exceeded his jurisdiction it is better for the Federal Court to say so authoritatively than to leave the issue open to debate.

The PM’s Response to the EC Report

Perhaps of greater interest to the media would be the PM’s first statement in response to the report: that he accepts full responsibility, but disagrees with the report’s conclusion. More recently he has acknowledged that mistakes were made, but hasn’t said those mistakes were improper.

The PM’s response to the EC’s report is the only possible response that would not have required his immediate resignation. He had to say he accepted responsibility for his actions. Who else is responsible for his actions if not he himself? In our society anyone who says he is not responsible for his own actions would probably be confined in a mental institution.

He also had to disagree with the report because if he admitted he had a conflict of interest he would have had to resign. To argue that what he did was ethical requires a public interest justification. He had previously insisted he tried to encourage JWR  to overrule the prosecutors to save the 9,000 jobs. That’s his only story, so he has to stick to it. To change his story now would require a new story, triggering the accusation that he keeps changing his story.

Dion received evidence from witnesses that on four occasions the PM and others acting on his behalf sought to advance partisan political objectives by pressuring the former AG to terminate the criminal prosecution of SNC-Lavalin. In my view, Dion properly exercised his jurisdiction.

What Happens Now?

The EC has no authority to impose any penalty on the PM or anyone else in this case. The PM is not going to resign and leave his party leaderless on the eve of an election. It is up to the voters in the October election to decide what happens next. Of course, this will not be the only factor in a voting decision.

Watch for the Attacks on Dion

One thing we may now see is a well orchestrated campaign of damage control by questioning and attacking Dion’s reasons, and perhaps even Dion personally.

In the evidence that emerged when the SNC-Lavalin issue was earlier publicized, JWR mentioned that the PM’s senior staffer and party campaign manager, Katy Telford, had made a promise to her. She had promised that if JWR decided to terminate the SNC-Lavalin prosecution by over-ruling the Director of Public Prosecutions (which would have been unprecedented and politically risky) the party would arrange to have friendly journalists and other commentators write newspaper op-ed articles supporting her decision. All political parties have similar friendly journalists, political commentators and lawyers who will support the party by criticizing the critics. I would therefore not be surprised to see, in the days ahead, commentary seeking to question or even discredit Dion.

Read Andrew Roman’s previous blogs on this topic, see:
The Prime Minister and the Attorney General
Rumours of death: panic over SNC-Lavalin
It’s your decision

Andrew Roman carried on a national law practice in Canada between 1973 and 2017, when he retired. He has appeared in numerous environmental hearings before various federal and provincial tribunals, as well as all levels of court, including the Supreme Court of Canada. He is the author of more than 100 published articles and has been a part-time law teacher at four Canadian law schools. Andrew Roman sits on the board of the umbrella organization Probe International belongs to (see Energy Probe Research Foundation).