EDC

It’s your decision …

The Prime Minister‘s real message was: “You can either do what I want or you can do what you want. The decision is yours.” Third in a series on the SNC-Lavalin controversy by Andrew Roman.

By Andrew Roman

For the original version of this posting, see here.

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

The Prime Minister, while addressing the resignations of former Ministers Jody Wilson-Raybould (JWR) and Jane Philpott on television on March 7, said that different interpretations of the same events, and miscommunication had led to an erosion of trust. But that’s not what caused the resignations. Different interpretations of the same events are ethically neutral. The resignation letters showed a disagreement about ethics.

The Resignations Were About Ethics

The resignations were spurred by ethical disagreement with what the Prime Minister and his staff were attempting to achieve in their conversations with the former Attorney General about SNC-Lavalin’s criminal prosecution.

If what the PM was attempting to do was unethical, his motivation for doing so, and any ambiguities in the language used in the attempt, do not matter.

What Was the PM Attempting to Do in His Messages to JWR?

The PM was attempting to influence the Attorney General to reverse her decision not to interfere in the Director of Public Prosecutions’ (DPP) prosecution of SNC-Lavalin for fraud and bribery. As she did not seek, or need the PM’s advice on an issue of how to exercise her discretion about a criminal prosecution, the repeated attempts to influence her decision were unethical.

I have explained, and need not repeat here, the relationship between the Prime Minister and the Attorney General in her criminal prosecution supervisory role in a previous blog post: The Prime Minister and the Attorney General.

The PM sometimes spoke to JWR personally and sometimes through the staff in the Prime Minister’s Office and the Clerk of the Privy Council (collectively, the PMOC).  The PM wanted the Director to stop prosecuting the company and start negotiating a deferred prosecution agreement (DPA), the nature of which I have described briefly below, and in a previous blog post: Rumours of Death: The Panic Over SNC-Lavalin . While there may have been different perceptions of the language used in the attempted persuasion, there can have been no difference in understanding what the PM wanted JWR to do.

Expressions like “the decision is yours”, taken out of context, miss the real message. Those on both sides of the communication would have understood, reading between the lines, the metamessage within the message. The real message was: “You can either do what I want or you can do what you want. The decision is yours.” Of course, if she does what she wants, she does so at her peril.

Why, if not for plausible deniability of political interference, does the non-lawyer PM need to tell the AG, an experienced lawyer, that the decision is hers? That is what the DPP Act clearly says, and the AG can read. As former prosecutor Sandy Garossino has explained here, prosecutors know the evidence in a case, but no one on the political side does.  That’s why knowledgeable prosecutors, not politicians unaware of the evidence, should decide whether the evidence justifies continued prosecution or diversion to the more benign DPA process.

The Erosion of Trust

In his March 7 television appearance the PM suggested that the problem with the two Ministers’ resignations arose because of an “erosion of trust”. Their trust didn’t just erode all by itself; he and his office destroyed it.

SNC-Lavalin went over the AG’s head, to the PM. The PMOC team effectively acted as the in-house advocates to the AG, for the benefit of the accused, SNC-Lavalin. The PM appoints and removes cabinet ministers at pleasure.  Displeasing the PM can be a career-limiting move.

JRW would have stopped trusting the PM/PMOC tag team at the first or second round of advocacy. That’s because their advocacy was not just a pleasant chat.  It was intended to influence her decision in a specific prosecution. JWR knew, and believed they also knew, that was unethical under the rule of law.

What is the Rule of Law, and Why Does It Matter?

The “rule of law” is not really a rule, or a law, or even about a law. It is about the limits of politics in a democracy.  The rule of law is an unwritten, but fundamental constitutional law principle of democratic governments everywhere.  It draws a circle around politicians, saying “You can play politics inside this circle, but if you step outside, you are attacking our democracy itself.”

The criminal justice process is outside that circle. Under political dictatorships the leaders can influence the police, the prosecutors and the judges. Not so in a democracy. Under the rule of law only the police decide who to investigate, only the prosecutors decide who to prosecute, and, upon conviction, only a judge decides the appropriate penalty – all without political influence.

The Supreme Court of Canada clearly explained the law in this frequently quoted case:

Miazga v. Kvello Estate, [2009] 3 SCR 339

[46] The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (at paras. 30-32):

It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. …..                                                    . . .

The quasi‑judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.[Emphasis added.]

The constitutional rule is simple: keep the politicians completely out of specific prosecutions.

The political intrusion that Michael Wernick described as “lawful advocacy” is unlawful political interference because its only real purpose is to influence the outcome of a specific prosecution.  The potential penalty for a cabinet member AG not deciding in favour of these lawful advocates who represent the PM is demotion, or even removal from the cabinet. That power imbalance inevitably creates pressure on the AG, whether intended or not.

JWR would have understood that if she was even tempted to be persuaded by such “lawful advocacy”, to act on it would be risky. There would be sharp political and media criticism of an AG for making the unprecedented decision of overruling the DPP for the benefit of SNC-Lavalin. As well, she faced the risk that the Director might resign, for the same ethical reasons as JWR herself resigned. JWR could have tarnished her reputation for integrity for the rest of her life. The PMOC appears naïve or callous in failing to recognize the personal risk it was “lawfully advocating” the AG to take.

How the PM/PMOC Attempted to Influence JWR

The Proposed Outside Legal Opinion

There were several suggestions made that JWR should get an outside legal opinion, sometimes accompanied by a comment that “we need a solution”. JWR, an experienced former prosecutor, did not need an outside opinion; the professed need was probably for political cover.

Gerald Butts attempted to justify the need for an outside legal opinion with the argument that the Criminal Code provisions governing DPAs were new. True, but irrelevant. The new provisions (section 715.32 (1) (c)) gave the DPP the sole discretion to decide whether negotiating the DPA would be in the public interest and appropriate in all the circumstances.  That is what the law calls a subjective condition precedent.  It is subjective because what matters is that the DPP form an opinion.  There is no basis for any outside legal opinion to disagree with the DPP’s subjective opinion. On this central issue any outside opinion would, obviously, be useless.

Furthermore, Butts was mixing up two different statutes and two different decisions by two different decision-makers.

The DPP’s decision is about prosecution versus negotiation of a DPA under the Criminal Code. The AG’s decision is about whether to overrule the DPP under the DPP Act. Different legal criteria apply to each.

If JWR was to get an outside opinion relevant to her decision it would have to be about the DPP Act. But the DPP Act is not new. It is 13 years old. The wording of that Act is clear. JWR had no need for an outside opinion.

The metamessage in the “outside opinion” proposal may be something like: “If you overrule the DPP, you may want to create the political cover to make your decision look good. Get an outside expert’s legal opinion (from someone you expect to give you the right opinion), and justify your decision as just following that expert opinion”.

This metamessage would be consistent with the PMOC’s suggestion that it could also provide political cover by encouraging friends of the government to write “op-ed” newspaper articles praising the AG’s decision.

The No Final Decision Argument

Both Gerald Butts and Michael Wernick testified that they had a legal opinion stating that a prosecutor’s decision was never final until the moment that the trial judge gave the final verdict. They either misunderstood or misapplied this legal opinion.

I agree that a prosecutor can legally stop the prosecution right up to the time of the final verdict. However, JWR was not the prosecutor. The DPP was. Therefore, it was acceptable for SNC-Lavalin to continue to ask the DPP to negotiate a DPA. But JWR’s decision was not whether to continue the prosecution or negotiate a DPA. It was only whether to overrule the DPP. Therefore, JWR’s decision not to do so was final when she made it, unless she, in her independent judgment saw a need to change it. If the DPP changed its mind and decided to negotiate a DPA there would have been no need for JWR to do anything more.

When Michael Wernick was asked what new evidence the government had that might have justified the DPP to stop prosecuting he gave an astonishing answer. He mentioned only two factors: that the company’s stock price had “tanked” in the fourth quarter of 2018 and that there had been a call from the Premier of Québec.  The prices of numerous stocks tanked in the fourth quarter, and the most important reason for SNC-Lavalin’s share price decline was a huge business loss, caused by contract problems in Saudi Arabia.

Normal fluctuations in share prices have nothing to do with the responsibility of an accused for paying bribes. It would have been scandalous if the DPP had decided to stop prosecution because of a quarterly fluctuation in SNC-Lavalin’s share price caused by business losses. And it would have been even worse if the DPP had had decided to stop the prosecution for the political reason that there had been a call or visit from the Premier of Québec.

The “She Never Told Us” Argument

Gerald Butts complained that JWR had never told the Prime Minister, in writing, that she had made a final decision about SNC-Lavalin. He said he heard it for the first time when he saw her testifying on television the previous week. Butts’ testimony is surprising.

The DPP Act requires the Director to inform the Attorney General of any intended prosecution that raises important questions of general interest. JWR testified that she had received such a DPP notice and had decided then not to exercise her right under section 14 of that Act to intervene “in first instance”.

Had JWR decided to intervene her decision would have become public and everyone in the Cabinet would have known it. However, as the prosecution process dragged on for month after month, SNC-Lavalin continued to lobby the PMOC in meeting after meeting. SNC-Lavalin’s persistent lobbying made it obvious that the AG had decided not to overrule the DPP. There would have been no need for JWR to send a letter to the Prime Minister telling him what everyone already knew: her decision had been made, and that was the decision against which SNC-Lavalin had been aggressively lobbying.

What Happens in a Democracy if Politics Influences Prosecutions?

A democracy does not immediately become a dictatorship just because adherence to the rule of law is not perfect. But repeated departures from the rule of law will cause its erosion, which, over time, is damaging to democracy. Preserving the rule of law is essential to a functioning democracy, regardless of which party is in power.

As a recent example, consider the 2014 prosecution of Senator Michael Duffy on 31 charges of fraud. In 2016 the Senator was found not guilty on all 31 charges. But Justice Vaillancourt also held that those charges were brought about to throw the Senator under the bus for political reasons. Part of Justice Vaillancourt’s judgment said “The political, covert, relentless, unfolding of events is mind-boggling and shocking. The precision and planning of the exercise would make any military commander proud. However, in the context of a democratic society, the plotting as revealed in the emails can only be described as unacceptable.” Duffy Trial, CBC Report

Although Senator Duffy was charged in July 2014, Canada still had an election in October, 2015. Prime Minister Harper did not become a dictator, he lost the election.

Politicizing legal processes can work both ways: to start or to stop prosecutions for political reasons. Neither is acceptable.

The Wonderful Benefit of a DPA

With a prosecution, a convicted party cannot just say “no” to the judge. The judge is imposing a penalty, not negotiating one. The DPA, as a penalty negotiation process, would allow an accused to say “no”, repeatedly, to any proposed penalty that it didn’t like. If JWR had directed the DPP to negotiate a deal the DPP would be under huge pressure to accept whatever penalty SNC-Lavalin would offer.

As the Director would know, SNC-Lavalin had the political clout to get to the Prime Minister and influence him. If the Director didn’t accept SNC-Lavalin’s proposed penalty, the company could start lobbying again to complain that she was demanding an unreasonable penalty. In a DPA negotiation compelled by the AG, after the company had lobbied the PM, in effect the accused would determine the penalty. And there would be no trial to expose unpleasant facts. Who wouldn’t prefer that to a prosecution?

How Much Pressure is Too Much?

The arguments about appropriate versus inappropriate pressure are useless. There is no objective way to gauge how much pressure was applied. Nor would it matter. The right word is “influence”, not pressure. Did a politician, political staff or a public servant attempt to influence the course of a criminal law prosecution? If so, it raises a concern with the rule of law.

JWR testified that in the 13 years since the DPP had been created no Attorney General had ever issued a directive to the DPP in any particular prosecution. For JWR to have issued a directive for SNC-Lavalin would have been unprecedented – and highly controversial. She would have had to justify doing so in the court of public opinion. JWR testified that she repeatedly refused, despite more than 10 such discussions with her and her staff, to interfere with the DPP’s discretion in this case.

Gerald Butts responded, in his testimony, that this number of discussions, spread over some four months, would be perfectly normal for a Minister. However, what matters is not the number of these discussions but their messages. Even one discussion can be one too many if it steps outside of the circle of the rule of law. And 10 such unwelcome discussions can be 10 times too many.

The “Standing up for Jobs” Justification.

The PM has sought to justify what he did with “standing up for Canadian jobs”. But what else could he have said? That these are “good guys” being unjustly prosecuted? That he favored leniency for bribery prosecutions? Unfortunately, the “jobs” argument doesn’t work ethically, and not just because the risks to jobs are greatly exaggerated.

In my previous post I have examined the reality of the claim that 9,000 jobs were at stake, and concluded that they were not: Rumours of Death: The Panic Over SNC-Lavalin

Any construction business large enough to afford to pay multimillion dollar bribes will have numerous employees. And the better bribers will tend to receive more contracts and thus, have more employees. Implicitly, the ethical theory is that if you are a big enough company that has allegedly been good enough at bribery over enough years to help build a big business, the PM or his staff will attempt to influence the AG, if necessary, to give you special treatment if you get caught.

I have seen no evidence that if the prosecution of SNC-Lavalin continues to its logical conclusion it would result in any significant damage to the company. When Michael Wernick was asked on March 6 whether he had seen any study or analysis of the effect of a prosecution on SNC-Lavalin jobs, his answer was “no”.

The Investigation by the “Ethics Commissioner” Won’t Help

The PM has said that the investigation by the Parliamentary “Ethics Commissioner” will get to the bottom of this. That is unlikely.

Both the Commissioner’s title and his authority are somewhat misleading. His full title is “Conflict of Interest and Ethics Commissioner”. It would be more descriptive to change his title to “Conflicts of Interest Commissioner” and delete the “Ethics Commissioner” label. His authority comes from the federal Conflict of Interest Act and the Parliament of Canada Act. These statutes provide authority to consider ethics, but only in the narrow context of a conflict of interest, like hiring your relatives or receiving payment for voting in favour of laws, etc. The ethics of attempting to influence the prosecution of a corporation are not covered under either Act.

It is difficult to understand how this Parliamentary official can conclude that there was a conflict of interest in the PM’s conduct in this case. Neither he nor his relatives would benefit personally from SNC-Lavalin negotiating a DPA. Most probably, the Commissioner can only conclude that there has been no violation of any law or code of conduct that falls within his jurisdiction. Thus, if the PM or his staff says in future that they were cleared by the “Ethics Commissioner”, we will know what this really means.

Conclusion

No one in any position of authority will be able to judge the ethics of the PM/PMOC’s conduct in this matter. It will be up to the voters to judge the ethics in issue, but in the context of all of the other issues to be considered in the forthcoming election. Sadly, it took the resignations of two prominent cabinet ministers, for ethical reasons, to educate the PM and the public about the importance of the rule of law.

For Andrew Roman’s other blogs in this series, see:

The Prime Minister and the Attorney General

Rumours of death: panic over SNC-Lavalin

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.

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