Confirmation Hearings for Canadian Appeal Court Nominees

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It is not every day that I have, respectfully, to disagree with the Chief Justice of the Supreme Court of Canada (SCC), but today is that day.

The Globe and Mail newspaper this morning quoted SCC Chief Justice Richard Wagner saying that he would like to see public nomination hearings for appeal court judges, much like the ones held for the SCC.  Such hearings for SCC nominees are largely a waste of time. Why expand an essentially useless and potentially harmful process?

Chief Justice Wagner was quoted as saying that explanations are necessary “Because people need and deserve the information. There is no reason we should not give it to them. We have nothing to hide.” I agree with those sentiments as far as they go, but all the relevant information can be provided in a printed bio or CV or by reading Wikipedia. The questions politicians really want answered have nothing to do with information. Rather, it is about the nominees’ views on politically controversial issues. Yet these views are almost never obtained on questioning.

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The Vice-Admiral Norman Case: A Prosecution Without Political Interference?

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“Even a fish wouldn’t get into trouble if it kept its mouth shut.” Korean proverb.

Introduction:

As most Canadians who follow the news will know, Vice-Admiral Mark Norman, the Vice-Chief of Canada’s Defence Staff was suspended from his position in 2016 and subsequently prosecuted for the alleged criminal offence of breach of trust. He was accused of having leaked secret Canadian government information about a Navy shipbuilding contract. On May 8, 2019 the prosecutor stayed the charges against him and the judge told him that he was free to go.

But that has not ended the controversy about the prosecution. There has been extensive speculation about political interference from the Prime Minister’s office.  That speculation may have gained some support from the evidence of Mr. Norman’s superior, Chief of the Defence Staff General Jon Vance, that Vance had discussed the matter with Mr. Trudeau and his top advisors, including then-principal secretary Gerald Butts and chief of staff Katie Telford. The Prime Minister has denied any political interference and to date no one has produced any evidence of it. I am inclined to believe the Prime Minister. However, the absence of direct interference by elected politicians is not the same as lack of political considerations in the prosecution.

As events have unfolded, the prosecutor, the RCMP and the Prime Minister all look bad.

 

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The Last Straw and the Pipeline

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Governments have often made decisions based on impulse rather than reason. A classic example is the fallacy of “the last straw” – the straw that broke the camel’s back. Similar impulsive decisions are now being made in the assessment of a pipeline’s effects. Let’s think about that.

If a camel’s back can hold, let’s say, 1000 straws, and if one more straw will break its back, it is illogical to believe that it was only the last straw that broke its back. Each of the 1001 straws has weight. All of them together create load on the camel’s back. The first straw is no better than the last straw. They are all load. If you don’t believe me, just ask the camel!

THE LAST STRAW DIDN’T BREAK THE CAMEL’S BACK

If you remove one or more of the 1000 loaded straws, then adding that proverbial “last straw” will be harmless. The false assumption is that all of the old load is okay, but new load is not. This leads us to the wrong decision: to ban new load while preserving old load. The right question is not “Which load is good load?” but rather, “How should Canada decide who is allowed to add straws onto the camel’s back (up to the maximum load)?” The task is to allocate space rationally on the limited capacity of the camel’s back.

Canada is facing two pipeline-related issues similar to the camel’s back. The first of these is CO2 emissions, the second, underwater noise caused by increased tanker traffic.

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My Presentation to the Senate on Amendments to the Impact Assessment Act, C-69, April 2, 2019

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The Canadian Senate’s Committee on Energy, the Environment, and Natural Resources invited me to make a short presentation to it on April 2, 2019, on my proposed amendments to the Impact Assessment Act, C-69.

Below I have set out first, my written opening statement, and second, the transcript of my part of the oral presentation with questions from several Senators.

SENATE OF CANADA

STANDING COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

OPENING STATEMENT OF ANDREW ROMAN

April 2, 2019

INTRODUCTION

Madam Chair and Honourable Senators, thank you for inviting me. And a special thanks to Maxime Fortin for arranging my presentation.

I am here because I want Canada’s impact assessment process to work well, for the sake of my children and grandchildren, and for those of all Canadians. That will not be the case unless C-69 is significantly amended. Good ideas that are badly implemented don’t make good laws. Without major amendments it is unlikely that there will be any new pipeline or electricity transmission proposals under C-69.

I have had a 45 year legal career advising and representing clients across Canada. Clients have included some First Nations (FNs), environmental groups, domestic and international corporations and federal and provincial governments. I have taught and practiced environmental law and advocacy. The federal government retained me to draft the first environmental assessment rules for its impact assessments. I have appeared as legal counsel for both the federal government and NGOs in pipeline hearings and court applications arising from them. I have also worked on drafting different kinds of laws for Ottawa and several provinces.

MY WRITING ON C-69

I recently published two blog posts on C-69, receiving over 4,000 views, here:

Analysis of C-69

How to Amend C-69

The second of these has a table providing a detailed list of suggested amendments. I would encourage you to read these blogs.

WHO WILL BE THE WINNERS AND LOSERS UNDER C-69?

Those who want to keep Canada’s oil and gas in the ground will be the winners. Everyone else will be the losers. Continue reading “My Presentation to the Senate on Amendments to the Impact Assessment Act, C-69, April 2, 2019”

It’s Your Decision…

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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.”

 

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.

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Rumours of Death: The Panic Over SNC-Lavalin

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Did the Prime Minister’s Office panic over SNC-Lavalin’s story of impeding doom? Or did they have real numbers showing the future effects of a criminal prosecution?

In the last few weeks the Canadian media have feasted daily on the political controversy over Prime Minister Justin Trudeau’s treatment of the former Attorney, General Jody Wilson-Raybould. This controversy arose over SNC-Lavalin’s repeated meetings with the Prime Minister’s Office, intended to persuade the PM to persuade the AG to intervene in a criminal prosecution of that company.

The SNC-Lavalin story that the PM, the PMO and the Clerk of the Privy Council, Michael Wernick told was that unless the company was protected from criminal prosecution there would be catastrophic consequences, not just for the now-reformed company but also, collateral damage for other, innocent parties: the company’s employees, shareholders and pensioners. I have seen no public numbers to quantify the estimated extent of these damages, merely the assumption that they would be catastrophic and unjust. The PM seemed to have assumed that most, if not all of SNC-Lavalin’s 9,000 Canadian employees are likely to become unemployed. He has responded to his critics by saying that there is nothing wrong with his trying to protect these 9,000 Canadian jobs.  But what if those jobs aren’t at risk, and don’t need his protection?  Did the PM just risk his career and his government over an exaggeration?

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The Prime Minister and the Attorney General.

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“Politics is the art of looking for trouble…”  Groucho Marx

Introduction

On February 7, the Globe and Mail reported:

“Prime Minister Justin Trudeau’s office attempted to press Jody Wilson-Raybould when she was justice minister to intervene in the corruption and fraud prosecution of Montreal engineering and construction giant SNC-Lavalin Group Inc., sources say, but she refused to ask federal prosecutors to make a deal with the company that could prevent a costly trial. ….

Sources say Ms. Wilson-Raybould, who was justice minister and attorney-general until she was shuffled to Veterans Affairs early this year, came under heavy pressure to persuade the Public Prosecution Service of Canada to change its mind.

Ms. Wilson-Raybould was unwilling to instruct the director of the public prosecution service, Kathleen Roussel, to negotiate a remediation agreement with SNC-Lavalin, according to sources who were granted anonymity to speak directly about what went on behind-the-scenes in the matter.”  [emphasis added]

On Tuesday, February 12, 2019, Ms. Wilson-Raybould resigned from the Cabinet. And on February 13, the Globe and Mail reported:

“Mr. Trudeau repeated his assertion from Tuesday on Ms. Wilson-Raybould, saying that if she had a problem with how the government handled the criminal prosecution of SNC-Lavalin, she had a duty to speak up about it earlier.” [emphasis added]

 

The conversations mentioned in these news stories have become a serious problem for everyone: Mr. Trudeau, Ms. Wilson-Raybould and SNC-Lavalin. What may happen next?

Continue reading “The Prime Minister and the Attorney General.”