“Politics is the art of looking for trouble…” Groucho Marx
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?
Note: At the top of the text under each heading I have presented my conclusion on that issue, in bold font. Below that I have presented, in regular font, the legal and public policy reasons.
For the purposes of this blog post I will assume that the above newspaper stories correctly quote the named and unidentified sources, and that these sources were telling the truth. To the extent that this assumption may subsequently be shown to me to be incorrect or inaccurate, the content of this post will have to change.
The Political Independence of the Canadian Attorney General
Canada’s Attorney General is required to act independently of government, to make apolitical decisions about the prosecution of individuals or corporations. This preserves the democratic principle of the rule of law.
It is not necessary for there to be “pressure” from the Prime Minister, whether subtle or heavy. Any communication from the Prime Minister or his Office that the Attorney General might perceive as an attempt to influence her decision could be improper interference. If there is any seriously attempted interference the Attorney General should expose it and/or resign.
In Canada the Attorney General is both the Attorney General and the Minister of Justice, wearing two hats. These are different and potentially conflicting roles.
How can one individual wear two hats on the same head? By wearing only one hat at the time. But which hat she is wearing at which time can be confusing. It was just such confusion that led to the problems in this case.
Don’t Initiate Secret Discussions of Prosecutions.
Initiating a private conversation with the Attorney General to influence her treatment of a potential or actual prosecution is wrong. That politicizes a decision about the administration of justice that should be made without political involvement.
If the Attorney General asks for advice, a Prime Minister can respond. But offering unsolicited “advice” in secret about a particular, ongoing case is an intrusion. Regardless of what the Prime Minister actually says behind closed doors, if the conversation is discovered it will be seen as political pressure to favour a criminal accused.
SNC-Lavalin’s repeated lobbying of the Prime Minister’s senior staff could have had only one purpose: to go over the Attorney General’s head to have the Prime Minister influence her to make the decision that she had previously refused to make when the company had asked her.
There was no valid reason for either the Prime Minister or his senior staff to have initiated such a conversation with Jody Wilson-Raybould. The only reason for either of them to discuss her prosecutorial decision would be to encourage her to change it, without being seen to do so. This is damaging to the rule of law.
Canadian law requires lobbyists to register and disclose who in government they are lobbying, on what issues. The Attorney General would have seen — or could have quickly guessed — that the reason why the Prime Minister’s senior staff and the Prime Minister were approaching her about SNC-Lavalin was because they had been lobbied by the company.
What matters is not the Prime Minister’s precise words during their conversation last September, but the total message as she perceived it. For example, the Prime Minister might have said something like “Of course the final decision is yours. But remember that the company has over 50,000 employees world-wide and is a Quebec icon.” Even mentioning who has the final decision could suggest an ironic attempt to influence her final decision.
The Attorney General would probably have felt pressured by the very fact of the PM approaching her privately and off the record about SNC-Lavalin. She may have seen his disclaimer that “the final decision is yours” as a self-serving effort to create plausible deniability if his advocacy on behalf of SNC Lavalin is later exposed. The Prime Minister is the Minister of Justice’s “boss” in Cabinet. He has the exclusive power to appoint, demote or to disappoint any minister. How could she view this private conversation as posing no risk to her career?
The Shawcross doctrine of the role of the Attorney General of England, also of relevance to Canada, discusses when and how the Attorney General might seek advice from Cabinet members. However, this doctrine does not support the opposite situation, when the Prime Minister gives the Attorney General unsolicited “advice” about an ongoing prosecution.
It is expected that lawyers representing an accused will contacting the Attorney General’s office to try to negotiate a deal for a client. If the Attorney General says “no deal” the alternatives are to make a better offer or to go to trial. Any attempt to go over the Attorney General’s head via lobbying any other Cabinet member or their staff is improper, and should be rebuffed at the first such meeting. There should be no subsequent meetings.
The Attorney General did not resign right after that conversation last September, while she was still the Attorney General. She accepted a transfer to another portfolio, Minister of Veterans’ Affairs, and remained within the Cabinet. The Prime Minister took her willingness to accept her transfer and to stay in his Cabinet as acceptance of his previous communication on this matter. Her delayed resignation, resigning from the Veterans’ Affairs portfolio on February 12, 2019 rather than as Attorney General several months earlier, muddies the waters.
I Can’t Talk Because…
Both the former Attorney General and the Prime Minister have claimed that they may be prevented from talking about what happened, albeit for different legal reasons. In my view, neither of them is prohibited by any applicable law from saying whatever they wish. If for any reason they do not want to say anything they haven’t already said that is their right, but not because they are muzzled by any law.
Jody Wilson-Raybould made public her letter of resignation to the Prime Minister. Her letter said that her refusal to comment publicly on any of these issues was because she considered herself potentially constrained by the duty to preserve solicitor-client privilege. She has sought legal advice from former Supreme Court Justice Thomas Cromwell on this issue. This privilege — if it exists — belongs to the client, not to the lawyer. Only the client can waive that privilege. The Prime Minister has not done that, at least not intentionally (although the argument can be made that by talking about it publicly he has, in effect, waived that privilege). However, if there is no solicitor-client privilege in this situation waiver is irrelevant.
For his part, the Prime Minister has mentioned being bound to be silent on these issues by the quite different principle of Cabinet secrecy. In my view cabinet secrecy is also inapplicable in this situation, so he can say publicly whatever he wishes.
Both parties have indicated that they intend to obtain legal advice on their respective constraints. Although I am not offering either of them any legal advice, the reasons for my views are explained below.
The Attorney General and Solicitor-Client Privilege
Jody Wilson-Raybould can speak her mind in public without feeling inhibited by a concern with solicitor client privilege.
No one in government was permitted to give the Attorney General any instructions when she or the DPP were involved in a prosecution. As she could not have been under instructions from any client there cannot have been any solicitor-client relationship. And, obviously, as there was no solicitor-client relationship, there can be no solicitor-client privilege.
Jody Wilson-Raybould has said that as the government’s chief lawyer she may be bound by solicitor-client privilege. She seems to be confused about which hat she is wearing As Minister of Justice, yes, and as Attorney General in a civil litigation context, yes again. But as Attorney General in a prosecutorial context, no.
Solicitor-client privilege only applies whenever (i) a lawyer is doing lawyers’ work on behalf of a client (ii) the client is giving the lawyer specific instructions in relation to that work; and (iii) there is nothing in those instructions the compliance with which would be unlawful or unethical. None of these three conditions necessarily applied to Jody Wilson-Raybould in the SNC-Lavalin situation.
The Attorney General of Canada has a unique job. Her role as the leader of a group of lawyers with public interest prosecutorial responsibilities is not the same as that of a lawyer working for a private client to further that client’s private interests. For legal ethics purposes, her duties are somewhat analogous to, but still different from, an in-house lawyer working in a business or a municipal corporation (as neither of these has any prosecutorial responsibilities).
When a Department of Justice lawyer goes to court in a civil case, the client would be another government department or agency, who would be instructing that lawyer personally. The civil litigation lawyer would be subject to the supervision of the Attorney General, somewhat like a senior partner supervising a junior lawyer in a regular law firm. In any such non-prosecutorial role it is likely that solicitor-client privilege would apply.
But the SNC-Lavalin issue was about a criminal law matter, not a civil matter. The initial decision about whether to prosecute, and if so how, for reasons I explain below, would not be made by the Attorney General of Canada but by the new office of the Director of Public Prosecutions, headed by Kathleen Roussel, the Director. The Attorney General could, under certain conditions, over-rule the Director, in accordance with her view of the interests of justice, but not as instructed by any client. Conceptually, the Attorney General’s clients are justice and the public interest, not the Prime Minister.
There are two statutes that work together with the customary role of the Attorney General, which explain the law applicable to the current case. The first is the DPP Act, which describes the role of the Public Prosecution Service of Canada. The second is the 2018 addition to the Criminal Code.
The Director of Public Prosecutions and the Attorney General
The Attorney General’s Power to Issue Direction to the DPP
To reduce the risk of political pressure on the Attorney General carrying the “two hats”, Canada decided in 2006 to create the new office of the Director of Public Prosecutions (DPP). This was to provide a substantial degree of insulation from political interference with prosecutions. The Attorney General was given a limited degree of control over the DPP, through powers to (i) issue a directive or (ii) take over a prosecution. Neither of these powers is all that useful in practice.
Although there is no written limit on the power to issue a directive, there is an implied condition that the directive must be a lawful directive, issued for a proper purpose. It would be improper for the Attorney General to issue a directive under any direction, pressure, pleading, suggestion or other interference from the Prime Minister, any other Minister or any staff person speaking on behalf of any of them.
Another implied limitation would be that the directive must be one that the Director can reasonably know how to comply with. A directive to negotiate an agreement is so vague as to be useless. It amounts to saying “go and talk to them for a while”. How should she negotiate? She could be tough and insist on a big penalty. Or she could be soft and give them what they want, to avoid another visit from the Prime Minister. If the Director is tough, SNC-Lavalin may complain again to the Prime Minister or his staff. If the Director is soft there will be no complaints.
The DPP Act came into force at the end of 2006, implementing the recommendations of the 1990 Law Reform Commission of Canada Working Paper 62 report here. The Director’s importance is evident, as the appointment is made through a statutory selection process. The Director is given compensation equal to that of a Federal Court judge. The Director also has the title of Deputy Attorney General of Canada, which makes this person equal to the head of any government department below the Minister.
Directive from Attorney General — specific prosecution
10 (1) Any directive that the Attorney General issues to the Director with respect to the initiation or conduct of any specific prosecution must be in writing and be published in the Canada Gazette….
Delay in publication — directive
11 (1) The Attorney General or the Director may, if he or she considers it to be in the interests of the administration of justice, direct that the publication in the Canada Gazette of a directive referred to in subsection 10(1) be delayed.
Limit on delay
(2) The publication of a directive may not be delayed beyond the completion of the prosecution or any related prosecution.
Section 10 permits the Attorney General to issue a “directive” to the Director about the initiation or conduct of a specific prosecution. The word “directive” is not defined in the Act.
Negotiation is a two-way process. A directive to negotiate an agreement is not a task that the Director can complete on her own. If the Director proposes to disgorge the ill-gotten gain obtained from bribery of foreign officials over the years that such bribery continued, as the law requires her to do, she might propose a fine of, e.g., $10 billion. The accused is not required to accept that proposal. The accused can insist that it cannot afford any fine above, let us say, $1 billion. Then what? More protracted negotiations, until the accused gets the offer it wants?
If SNC-Lavalin had the political clout to get the Prime Minister to talk to the Attorney General, what would prevent the company from going back to the Prime Minister to have another chat with the Attorney General about directing the DPP to make an offer not to exceed $1 billion?
Under a directive, it would be difficult for the DPP to force the company to accept a costly monetary penalty because the DPP couldn’t just walk away from fruitless negotiations and go back to prosecution. With the prosecution hammer removed, the DPP’s negotiating power is gone. If the Attorney General had obeyed the Prime Minister’s intervention opposing prosecution, that would have effectively given SNC-Lavalin the whip hand in monetary penalty negotiations.
Parliament included the requirement that the directive must be in writing and published in the Canada Gazette. However, section 11 allows the publication to be delayed until the completion of the prosecution, i.e., the making of a deal, which could be months or years later. Although the directive must eventually be made public, by then this would be an old and long forgotten story.
The Attorney General’s Power to Take Over a Prosecution
The Attorney General can take over a prosecution from the Director. But doing this would be highly unusual, and highly controversial.
Then the negotiations with the accused would be conducted by the Attorney General. Whatever monetary penalty was agreed to would be criticized as a “sweetheart deal” that the accused could never have received from the DPP. This would invite the cynical comment that lobbying and political donations had paid off. For these reasons, taking over the prosecution of SNC-Lavalin would be risky, with no obvious benefit.
Taking conduct of prosecution
15 (1) The Attorney General may only assume conduct of a prosecution after first consulting the Director. The Attorney General must then give to the Director a notice of intent to assume conduct of the prosecution and publish it in the Canada Gazette without delay.
Transfer of file
(2) The Director is required to turn the prosecution file over to the Attorney General and to provide any information that the Attorney General requires within the time specified.
Delay in publication
(3) However, publication may be delayed if the Attorney General or the Director considers it to be in the interests of the administration of justice.
The requirement to consult the Director is useful. If, during such consultation, the Director is firmly opposed to giving up control and may threaten to go public or to resign, the Attorney General may decide not to take it over. If there is some special reason that the Attorney General wants to take it over the consultation may result in a compromise that leaves the prosecution with the Director.
If they can’t work it out between them, the Attorney General may give the required notice and take over the file. Although subsection 15 (1) says that the Attorney General must publish the notice in the Canada Gazette “without delay”, that safeguard is effectively removed by subsection (3), which allows the Attorney General to delay publication without specifying any time limit.
Section 15 is silent on what the Attorney General may do after assuming conduct of a prosecution. She could retain and instruct an outside prosecutor simply to terminate the prosecution under section 579 of the Criminal Code. Such a power is rarely used in any high profile case with any degree of political sensitivity. Another option would be to leave the prosecution in place without advancing it for a total of 60+ months, when the accused could apply to the court to terminate it for delay. The Canadian Press ran a story on February 15, 2019 of charges being dismissed against a former SNC-Lavalin executive for excessive delay that was unexplained by the prosecutors, here.
Section 15 only permits the Attorney General to “assume conduct of a prosecution”. It doesn’t explicitly authorize changing a prosecution into a remedial order. This brings us to the Criminal Code.
Remedial Orders Under the Criminal Code
Under Criminal Code section 715.32 (1) it is the prosecutor, not the Attorney General, who can initiate negotiations for a remediation agreement.
Although the Attorney General’s consent to negotiate must be obtained, this only gives her a veto over starting the negotiations by withholding her consent. The Criminal Code doesn’t permit the Attorney General to compel the prosecutor to enter into negotiations. That makes perfect practical sense because forcing someone to negotiate an agreement against their will is unlikely to result in fruitful negotiations.
The reasons why the Prime Minister has reportedly discussed SNC-Lavalin with the Attorney General include both the identity of the organization and the national economic interest. Yet these are the very factors that Parliament required the DPP not to consider when bribery of foreign officials is an alleged offence. Thus, the Prime Minister’s intervention sought to have the Attorney General direct the DPP to consider something explicitly prohibited by the law that his government introduced only last year.
The 2018 addition to the Criminal Code was introduced as part of last year’s federal budget. This new law permits the Attorney General or the DPP to use a “remedial order” as an alternative to completing a prosecution. As a prosecution was already started in the SNC-Lavalin case the DPP would have to terminate the prosecution if and when the remedial order comes into force. The remedial order would avoid a criminal conviction and the resulting 10 year ban from any work from the Canadian government and the many other governments with the same anti-bribery policies.
If the DPP had thought that negotiating a remedial order with SNC-Lavalin would be in the public interest the DPP would have begun such negotiations, without any prompting from the Attorney General or the Prime Minister’s Office. However, once the accused’s lobbying had resulted in the Prime Minister interjecting himself and his staff in the process in any way, understandably, both the DPP and the Attorney General would have serious concerns about the integrity — and the appearance of integrity — of any such politically prompted negotiations to replace an ongoing prosecution.
If SNC-Lavalin has enough political clout to get the Prime Minister to take the politically dangerous step of becoming an SNC-Lavalin advocate in the prosecutorial process, presumably that clout could also be used to try to affect the content of the negotiations. SNC-Lavalin could just say “no” to any proposed penalty it didn’t like. And it could complain to the Prime Minister that the DPP was seeking to impose financially harmful, job destroying conditions that would punish innocent employees, shareholders and pensioners. If that happens, in effect, the DPP would be negotiating with the Prime Minister, with the Attorney General becoming the conduit, while the Prime Minister’s negotiating suggestions would be coming from SNC-Lavalin. The spectre of this would place the DPP, the Attorney General and the Prime Minister in an ethically compromised situation.
As remedial orders are new and unknown to most Canadians, I have set out below a few of the most relevant Criminal Code sections explaining how these are supposed to work. These provisions were drafted to be in compliance with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, to which Canada has been a signatory for some 20 years.
715.31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:
(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;
(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties; [this wording comes from the OECD]
(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;
(d) to encourage voluntary disclosure of the wrongdoing;
(e) to provide reparations for harm done to victims or to the community; and
(f) to 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 that wrongdoing. [emphasis added]
Conditions for remediation agreement
715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
(d) the Attorney General has consented to the negotiation of the agreement. [emphasis added]
Section 715.32 (2) lists the factors the DPP should consider in deciding whether to negotiate, and then subsection (3) sets out what factors she cannot consider:
Factors not to consider
(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, [here], the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved. [Emphasis added. This language comes from Article 5 of the OECD convention.]
Had the Attorney General followed the Prime Minister’s suggestion and issued a directive, or had she taken over the prosecution for the purpose of negotiating a remediation agreement for reasons not authorized under the Criminal Code, arguably that request would have been unethical, and improper for the Attorney General to have complied with.
Application for court approval
715.37 (1) When the prosecutor and the organization have agreed to the terms of a remediation agreement, the prosecutor must apply to the court in writing for an order approving the agreement.
Coming into force
(2) The coming into force of the agreement is subject to the approval of the court.
(7) As soon as practicable after the court approves the agreement, the prosecutor must direct the clerk or other proper officer of the court to make an entry on the record that the proceedings against the organization in respect of any offence to which the agreement applies are stayed by that direction and that entry must be made immediately, after which time the proceedings shall be stayed accordingly.
Section 715.42 gives the court the discretion to publish or not publish the remedial order. This leaves open the possibility that the terms of the remediation order will never be known. Any lawyer for an accused would certainly apply for such a non-publication order.
I should note in passing that Canada is a signatory to the Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions. Article 5 of this convention states:
Article 5. Enforcement:
27. Article 5 recognises the fundamental nature of national regimes of prosecutorial discretion. It recognises as well that, in order to protect the independence of prosecution, such discretion is to be exercised on the basis of professional motives and is not to be subject to improper influence by concerns of a political nature. … [emphasis added]
Does Solicitor Client Privilege Apply in This Case?
A solicitor-client relationship only exists when a lawyer is acting under a client’s instructions. It is impossible for the Attorney General be in a solicitor-client relationship with someone who cannot lawfully give her instructions on prosecutions. Therefore, neither the Cabinet nor the Prime Minister can be the Attorney General’s client in a prosecution. And that is why neither the Cabinet not the Prime Minister can have solicitor-client privilege.
The political branch of our government (the Cabinet, including the Prime Minister) can instruct the Minister of Justice, wearing her advisory hat. It cannot instruct the same person wearing her independent Attorney General hat in a specific case involving criminal law.
It is unclear whether the Attorney General actually has any person as her client in the normal legal meaning of that word. Her duty is to consider the public interest and the interests of justice in initiating and conducting prosecutions. Arguably her real “client” is the Canadian public.
As a former British Columbia prosecutor, Jody Wilson-Raybould is probably a member of the BC bar, and subject to its Code of Professional Conduct [found here]. The BC Code is substantially similar to codes in the other provinces. These codes deal with various lawyer-client relationships, including where the lawyer is an in-house counsel within an organization. That is not exactly the legal relationship of the Attorney General to the person who pays her salary, the Government of Canada, but it is the closest analogy to it under the BC bar’s Code.
Of particular relevance is the Code’s ethical requirement, in the text and commentary in Article 3.2-8, if the organization employing the lawyer has acted, is acting or intends to act dishonestly. The lawyer is then supposed to advise the person from whom the lawyer takes instructions or the chief legal officer, etc., — all the way up the ladder if necessary, right up to the “highest persons” That includes the CEO or, if necessary, going above the CEO to the Board of Directors. The Attorney General’s highest persons — above the Prime Minister if he is the cause of her problem — would be either Parliament or the general public.
In any event, if she is not acting in her capacity as a lawyer under the instructions of a client there is no solicitor-client relationship, and therefore, no solicitor-client privilege . In that case she cannot be subject to professional discipline for breaching a nonexistent privilege. Unless there is another legal restraint on her, she can say whatever she wishes.
Is the Attorney General or the Prime Minister Bound by Cabinet Secrecy in This Case?
Canadian law governing Cabinet secrecy applies only to ministers’ discussions in the context of Cabinet business, in making a decision for which Cabinet is collectively responsible.
As the Prime Minister himself has declared, the responsibility for the decision in issue was that of the Attorney General alone. Cabinet’s collective responsibility did not arise. It was therefore not a decision of the Cabinet, or any part of the business of the Cabinet, or any policy to be developed by Cabinet. Hence there was no Cabinet secret at all.
Now that the Prime Minister has spoken publicly about his conversations with the Attorney General regarding the SNC-Lavalin prosecution, any claim of secrecy has been waived. What is public is no longer secret. After making this public it would now be inconsistent for the Prime Minister to argue that his former Attorney General cannot also make public her understanding of their conversations on this subject.
When and to what does cabinet secrecy (sometimes also called “cabinet confidences”) apply? It is difficult to give any definitive answer because the answer is not written down anywhere that I have seen. There is the Westminster tradition, as modified in Canada by statutory provisions restricting attempts by third parties (usually in litigation against the government), to obtain disclosure of Cabinet documents in court or via Access to Information laws. That is not this case.
In this case the issue is about oral discussions between two Cabinet members, and the right of either of them to disclose who said what in those discussions. I will assume that none of these conversations were recorded or transcribed. The question, therefore, is whether there is any legal impediment to either of them disclosing publicly what they understand to have been communicated during one or more oral conversations. (By legal impediment I mean a statute, a common-law convention or tradition that has been considered binding to date.)
I have been unable to find any authority on this question. I would appreciate any of my readers directing my attention to any such authority. In the meantime, I will try to develop my own answer by considering the purpose and working of Cabinet secrecy.
Several federal departments have provided a general description of the purpose of Cabinet secrecy in Canada, usually in the context of a specific statute prohibiting disclosure or judicial review of a decision refusing disclosure. The example set out below is typical. It indicates that the purpose of Cabinet secrecy is to protect collective decision-making and discussions leading to or following from such decisions:
Treasury Board on the Privacy Act
The Canadian government is based on a Cabinet system consisting of ministers acting in the name of the Queen’s Privy Council for Canada. Cabinet establishes the federal government’s policies and priorities for the country. Cabinet ministers are collectively responsible for all actions taken by the Cabinet and must publicly support all Cabinet decisions. In order to reach final decisions, ministers must be able to express their views freely during the discussions held in Cabinet. To allow the exchange of views to be disclosed publicly would result in the erosion of the collective responsibility of ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality, which upholds the principle of collective responsibility and enables ministers to engage in full and frank discussions necessary for the effective functioning of a Cabinet system.
Records of communications between ministers
Paragraph 70(1)(d) [of the Privacy Act] excludes from the application of the Act any information contained in records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy. …
Information in records of communications between ministers that were not used for or do not reflect discussions relating to the making of government decisions or the formulation of government policy do not fall under this category. [emphasis added.]
We may not have long to wait until Jody Wilson-Raybould makes public her side of the conversation with the Prime Minister.
In the UK, where the Attorney General is not a member of the Cabinet, it is less likely that this kind of problem would arise. In Canada we have diluted the independence of the position by giving the Attorney General the other hat of Minister of Justice and putting this two-hatted person into the Cabinet. As the position is politicized, its legal purity is inherently compromised. Why not make the politics overt rather than covert? As US Supreme Court Justice Louis Brandeis wrote, “Sunlight is said to be the best of disinfectants…”
My suggested steps for how this might be done legitimately and transparently follow.
- The Prime Minister writes to the Attorney General saying that in X days’ time, during Question Period in the House, he will ask her the question set out in his letter about the ongoing DPP prosecution of Company Y.
- When the question is asked orally at the appointed time the AG can respond either immediately, on her feet, or reserve her response for a few days. The response would be provided on the record in the House.
- The Prime Minister’s question would be something like this: “I have received representations from Company Y suggesting that you should issue a directive to the DPP to negotiate a remediation agreement, or take over the prosecution and negotiate the agreement yourself. Please advise the House whether you agree or disagree with this suggestion, and why.”
- Following her answer, there could be further questions from other Members of Parliament.
Whatever her answer, the PM would be bound by it and could not penalize the Attorney General. If he did, the reason would be known and potentially scandalous.
If the Prime Minister did ask the question in the House he could be criticized or supported by other political parties. So could the Attorney General for whatever her response might be. But then the politics would be in the open instead of in secret.
Categories: Constitution, Uncategorized
Soliciter client privilege would apply to the Justice Minister as legal advisor to cabinet, if not to Attorney-General don’t you think? Your introductory caution about anonymous sources was welcome. How do we judge the volume of the axes grinding during the conversation with the Globe journalists. Pitching them is a well known PR tactic, undertaken for revenge or to protect a reputation or to make mischief. Categorical denials from the PM and his now former Principal Secretary seem not to have the same weight in media accounts. This puzzles me. The story occurred amid “denials” not amid allegations, Canadian Press notwithstanding. Thanks for your illuminating account.
Thank you for this explanation and clarification.
I came to the same conclusions independently more than a week ago. Take a look at my article in the PostMillenial . I would add two points:
1. Lawyers are prohibited by the code of conduct from getting themselves into conflicts of interest, or “wearing two hats,” or serving two different masters whose interests might conflict.
2. Since the AG is the party in ultimate control of the DPP, and the DPP is a lawyer, the AG must be the DPP’s client – in the same way that a Department head is the client when a federal prosecutor is handling a case under another department. As the client, the AG is free to seek input from anyone; but that input is not protected by any privilege. What prevents other political actors from advising the AG on prosecutions is the constitutional principle of judicial & prosecutorial independence.
Hello Grant, and thank you for your comments.
Your first point was:
“Lawyers are prohibited by the code of conduct from getting themselves into conflicts of interest, or “wearing two hats,” or serving two different masters whose interests might conflict.”
I haven’t researched these codes of conduct since I retired just over a year ago. Going from memory, however, my impression is that a lawyer can have two clients whose interests might conflict in future, provided that the lawyer has the informed consent of both clients, and provided that if the conflict actually arises the lawyer has to end the retainer with both clients, who will then have to find a new lawyer for each of them. The conflict of interest doesn’t arise until after the clients have their own conflict.
Your second point, I agree with the last sentence, but not entirely with the first sentence: “Since the AG is the party in ultimate control of the DPP, and the DPP is a lawyer, the AG must be the DPP’s client ….”.
The normal principles of who is the lawyer and who is the client, and the legal ethics flowing from that, don’t quite fit the relationship between the AG and the DPP because their relationship is governed by a statute. Under the DPP Act the AG’s ultimate control over the DPP is limited. That may differ in some ways from the situation in Canadian provinces where the prosecutors are employees within the Ministry of the Attorney General.
The DPP is neither the AG’s employee nor the AG’s lawyer. The DPP holds a statutory office with duties set out in the statute. The DPP has prosecutorial duties, but no “client” in any conventional sense. The AG cannot instruct, direct or overrule the DPP except in accordance with that statute. For example, the AG cannot order the DPP to prosecute someone. After the DPP has started a prosecution the AG can take it over. The AG has to publish a directive to the DPP in the Canada Gazette, whereas in private practice if a client instructs a lawyer that’s between them and confidential. Both the DPP and the AG are public officials with statutory duties that were enacted for public policy reasons.
Legislation governing lawyers, and codes of conduct enacted by law societies also have a statutory foundation, and also were enacted for public policy reasons, but the public policy reasons differ. The public policy reasons for the law societies’ legislation and codes is the protection of clients and the courts from unethical conduct by lawyers. The public policy reasons for the DPP Act are to create an office outside of, and insulated from an excessive degree of political influence. There is some degree of overlap, but the two circles would not be congruent.
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Thank you, Andrew. This is very tightly reasoned and therefore extremely useful in the current situation (in which there is uncertainty about the facts and the law). Karen and I have seen too many newspaper articles that were written from an emotional or political orientation. To make your analysis more accessible to a wider audience we would suggest that you publish a condensed version of your piece in a prominent newspaper, e.g. The Globe and Mail.
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OK, please let me know when you would like me to appear.
I Andrew. An excellent explanation of privege in the context of the SNC situation. Might I suggest you use it for an op ed in the Globe. John morinQC.
Thanks, I’ll see if that paper is interested.
For an “average citizen”, this was a very informative read. Does this mean there should be 2 people in these roles- an Attorney-General representing Government, and another “equal”, representing the people? And by the way, who or what controls the number of times a company (like SNC), can lobby the PMO, or the AG? 30, 40, 50 times? This seems to be happening.
We actually have 3 positions now, occupied by 2 people, hence the frequent confusion. What matters is not their titles, but their actual functions at a particular time, as their functions vary. We have the three positions: the Director of the DPP, the Attorney General and the Minister of Justice. The latter 2 are held by the same person. Most of the time that double hatting doesn’t matter. It only does in rare cases when there is a prosecution that is or becomes politically sensitive.
The DPP’s Director prosecutes (or doesn’t) on behalf of the people, in the interests of justice, and normally, free from any political influence. The DPP is created by statute, so its Director is not just another civil servant but someone with prescribed duties.
The Attorney General, who is also the Minister of Justice, is in the cabinet, and sometimes is giving the government legal advice, covered by solicitor-client privilege and cabinet secrecy. However, as the public and the media don’t always understand these legal constraints against speaking out they often get it wrong. This ignorance allows politicians to avoid speaking by claiming to be muzzled by these principles when they are not. The media simply report these claims without question, in many cases. They focus on whether the privilege should be waived, rather than on whether it even exists.
No one controls the number of visits by a lobbyist except the person being visited. If a government official or politician doesn’t want yet another meeting they can just say “no”. But if they say “no” they can be criticized for that too. So it takes a strong politician to know when enough meetings have taken place and to refuse to have their resistance worn down.
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This is a superb analysis. And I just saw you interviewed on CBC’s Power and Politics. Talk about illuminating the darkness.
Thank you. It’s something useful I can do in retirement.
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Well done Andrew! Extremely interesting and informative.
Hello Andrew. My search for history of directives issued by the AG to the PPO under s. 10 came up blank. Similarly, i can’t find the grounds that would permit the AG to issue a directive to the PPO after a s.13 notice that the decision to prosecute had been made. My thinking is that if there was no precedent of an AG issuing a directive in respect of a particular criminal case, and that there is no precedent for over-turning a decision of the PPO by the AG, then what the Liberals were asking the AG to do might not have fit the test or the grounds to do so, were without precedent and would on its face bring the administration of justice into disrepute. Thoughts? Thank you.
Jody Wilson-Raybould had a short discussion about this with Lisa Raitt during the Justice Committee hearing. They agreed that there was no precedent in 13 years of the DPP’s existence for any AG directive for a specific prosecution, nor any prosecution takeover. So it would have been unprecedented for the AG to have done either of these things.
Of course, if this was the first case in which the use of such powers was justified it wouldn’t matter if it was unprecedented. It is never too late to do the right thing, if that is what the AG is being asked to do.
The problem is with the two-step test. The first is whether there is a reasonable prospect of conviction. Assuming a reasonable prospect of conviction (based on evidence from the RCMP) the second step of the test is whether it is in the public interest to prosecute. The DPP thought it was, and started the prosecution. As facts change these new facts can be presented to the DPP to keep applying the two step test. If these facts warrant a change in her opinion on either step of the test the prosecution could be changed (e.g. different set of charges, different proposed penalties) or terminated.
The key problem is with the second step. It is necessarily opaque. The DPP is not required to say, and should not say, what weight it gave to what factors in the public interest to arrive at its conclusion. The conclusion is a subjective gut feel rather than a mathematical weighing. All the accused sees is the outcome: the prosecution continues or stops. That is the issue SNC-Lavalin has taken to court. It complains that the Director’s reason given — that the prosecution is in the public interest — is unintelligible. The company has a point, but what is the alternative?
If the DPP had to give detailed, intelligible, and therefore debatable reasons for how it arrived at its conclusion these reasons would then be attacked in court. The attack would allege the reasons included factors that were irrelevant or failed to take into account or give any weight to relevant factors. Hence every prosecutorial decision of a large corporation with money for litigation would become a long lawsuit with uncertain results. By the end of this litigation and its appeals the prosecution might well fail because some key Crown witnesses will have died, left the country or forgotten what they saw or heard. Meanwhile the company could continue to reap the benefits of any criminal conduct it might have engaged in.
So now we come to the AG, deciding whether to use one of her 2 ways of overruling the Director. Her criteria are not the same as those of the prosecutor, more like that of a court in a judicial review of an independent decision maker. This review has two overlapping principles.
The first is deference. As the Director has seen all the evidence and the AG has not, the AG should defer to the expertise and greater knowledge of the Director, unless there is an obvious and serious error in principle. This is especially true if the AG has never been a prosecutor. Second is to consider whether the decision falls within the range of reasonable decisions or is clearly unreasonable. Of course, since the decision being reviewed is yes/no in the public interest it would be difficult to decide whether the decision is within the range of reasonable outcomes.
There are two other issues for the AG. One is what happens if she overrules. How can she justify deciding the prosecution is not in the public interest when she can’t know why the Director thought it was? These two are not supposed to debate the Director’s decision. It either speaks for itself or it doesn’t. And she also has only a yes/no decision, without giving reasons. The second is whether a political person who sits in the cabinet will bring the administration of justice into disrepute by making an overruling of a prosecution appear to be based on politics rather than based on the rule of law. That’s probably why such overruling almost never happens, cannot become routine, and is difficult to justify with transparency if it is ever done.
For these reasons I am considering writing another blog post on whether the position of Attorney General is obsolete now that we have a DPP, or alternatively, whether the AG should not be in the cabinet. For the AG to wear two hats is obviously confusing to everyone. It almost invites improper interference by those not fully aware of how these two hats are supposed to work on one head.
I am interested in the issue of resignation. The Liberals have asked the AG why she did not resign earlier given her concerns of improper influence. I am puzzled by this. The AG was firm in rebuffing the pressure and repeatedly shut down all attempts to influence her. Had she been ordered or directed to over-turn the PP’s decision, then there would have been a reason to resign. Her refusal to resign earlier can therefore not be taken as a sign that the actions of the PMO, the PM, the Civil Service and the MoF did not cross the line. But it leaves the question what else should she have done. And so I wonder why the AG did not advise these 11 people that if she was contacted again she would have to file a complaint with the Ethics Commissioner. Thanks.
I’m not sure reporting to the Ethics Commissioner would be useful because the Ethics Commissioner is not really about ethics in the broad sense, but about conflicts of interest. A more accurate title would be “Conflicts of Interest Commissioner. Section 4 of the Conflicts of Interest Act shows a narrow jurisdiction when someone is acting in the course of his/her duties. Attempting to interfere with the prosecutorial discretion of the AG is not part of the duties of any Member of Parliament.
The former AG when asked this question replied that she was doing her job. I assume she meant by not resigning and protecting the independence of the DPP. If the G&M had not found a leak and blew the story open the result may well have been that the pressure stopped because the December 18-19 pressure was focussed on a December 20 SNC-Lavalin Board meeting. The pressure may have stopped after that, and she may not have been shuffled but for the sudden resignation from Cabinet of Scott Brison.
If she had resigned or been removed from Cabinet the story about the improper pressure would have come out and may then have killed the Liberals and the PM in the forthcoming election. So she was putting up with the abuse of her position for the sake of protecting the government of which she was a member. She was being a team player by not resigning. It is therefore somewhat ironic that her own party members were questioning her integrity in resigning when she did, rather than earlier.
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