Constitution

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.”

 

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.

 

 

37 replies »

  1. Ah! But you hit the nail on the head. That’s what happens sometimes when you try to buy votes from a province, lol. The PM may just find that HE will pay the ultimate price for his effort at influencing an outcome. He may well have experienced a “ career-limiting move “ with HIS latest actions.

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  2. I won’t flatter myself by saying “great minds think alike.”I’m not possessed of one. But I will say this the second fairly lengthy blog post of yours I’ve read and, atypical of me, I can’t find any substance with which I disagree. Yours again is simply impressively compelling analysis.

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  3. The linked CBC article on the Duffy case chastises the PMO for harassing Duffy and interfering with the media, but doesn’t appear to mention interfering with the prosecution as such. Did I miss something?

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    • No, but the judge also chastised the prosecutor. I linked the CBC story for quick reading, not because it was a full report of what happened. The full judgment, which is very long and hard to read for anyone who isn’t a lawyer, suggests to me that the 31 charges were laid unnecessarily, as the acquittal was on all 31 charges. There is the implication that charging Duffy may have been politically motivated because there were so many charges and no reasonable prospect of conviction on any of them. As for the current case, the PMO also didn’t interfere with the prosecution directly, as they didn’t tell the DPP to prosecute or to refrain from prosecution. Rather, they attempted to interfere at the AG level, but didn’t succeed because JWR wouldn’t change her decision.

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      • Andrew, I have one brief question. If the DPP rejected a DPA for SNC-Lavalin, on what grounds did she say “no”? If she had valid legal grounds, then Jody Wilson-Raybould had every right not to intervene. Is this not a logical place to start (why SNC-Lavalin did not qualify for a DPA?). My partisan liberal friends keep reminding me that JW-R had to make a decision based on the “public interest.” I’m not buying it. How many times has an AG ever overturned the decision of the DPP for a DPA? Thanks again.

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      • The criteria the DPP must use in deciding whether to negotiate a DPA are a combination of objective and subjective reasons. Perhaps the most important subjective criterion is whether in the prosecutor’s opinion it in the public interest and appropriate in the circumstances to avoid prosecution and to grant a DPA negotiation opportunity. There is no law defining the public interest or what would constitute an appropriate circumstance. It is entirely a matter of opinion. And the relevant opinion is that of the DPP, not the AG.

        One of the important objective criteria is whether the accused came to the prosecutors to confess or whether they were caught at it, and in this case it was the latter. SNC-Lavalin was caught by the Swiss authorities. Another is whether this was an isolated event or part of a pattern. It is noteworthy that after the Libyan bribery ended there was recently the further conviction for bribery right in Montréal with the McGill University Hospital. Ultimately, the DPP has to weigh all of the mitigating circumstances and the incriminating or negative circumstances and arrive at some sort of decision.

        The quasi-judicial (i.e., as if judicial) role of the AG in reviewing the DPP is not what you would expect. It is analogous to what a Court of Appeal does when looking at the decision of the trial judge. That role is not to second-guess the trial judge or consider what a member of the appeal panel might have done, with the advantage of hindsight, if they had been in the position of the trial judge. That is the wrong way to look at it. The courts use the expression “palpable and overriding error” to decide whether to overrule a trial judge. Something similar must apply here. The DPP decision must be so unreasonable that it cannot be allowed to stand. And remember that the DPP has interviewed all the witnesses and read all the documentary evidence, over several months or years; the AG has none of that information. The AG, as Minister of Justice, is busy writing laws and attending cabinet meetings, etc., not doing the DPP’s job.

        The AG’s decision on whether to over-rule is not to be based on her independent conception of the public interest, given her inevitable ignorance of most of the evidence. It must be based on on whether the DPP’s decision, taking all factors the DPP had to consider (including the public interest and appropriateness) was so unreasonable that it couldn’t be permitted to stand. In the circumstances, the DPP’s decision, while one might disagree with it, was not untenable.

        In the 13 years that Canada has had a DPP, no AG has ever over-ruled it in a specific prosecution. What she was being encouraged to do was unprecedented.

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      • Which was why Telford and Butts reassured JWR they would have an army of OpEd writers submitting articles of support?

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      • As it would have been risky to be the first AG to overrule the DPP in a specific case I would assume the promise of OpEd support was to encourage the AG to take that risk because the OpEd articles would reduce the risk.

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      • Andrew, now that the Liberals have appointed Anne McLellan as special advisor in he SNC-L affair, will she be given access to all the evidence that the DPP viewed? If not, will her assessment have any real merit, or is it purely a political move either to help the Liberals or smear JW-R?

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      • No, she will not be permitted to see the evidence, any more than JWR was. She will study the role of the AG in the UK, Australia and other Commonwealth countries to decide whether to change the current Canadian role, and if so, how. I don’t think it can affect JWR one way or another.

        I agree with the PM that this is an important question for the future, and Ms McLellan, a former law professor and former AG/MOJ, is well qualified to study and recommend. Of course, the PM is not required to implement whatever she might recommend, but as someone who has studied the AG’s role in Canada, the UK and Australia, I hope she recommends getting the AG out of the cabinet. That’s what I would recommend, if asked.

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  4. “But Justice Vaillancourt also held that those charges were brought about to throw the Senator under the bus for political reasons.”

    The AG of Ontario, a Liberal, had jurisdiction in the Duffy matter. Given the spectacular failure of the prosecution, which was, essentially, seeking to establish Duffy committed criminal fraud for breaching expense claim rules that didn’t exist, it is reasonable to quare why charges laid in the first place. I agree with Justice Vaillancourt that “political reasons” informed the prosecution decision, but question who he appears to think the “political reasons” belonged to.

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    • The Duffy case and some others arose after a media “expose” of Senators’ personal spending. Then an internal Senate review led to providing information to the RCMP, who then took the evidence to the Ontario prosecutors. With such evidence it didn’t matter who was the AG, or what was the AG’s political party. The AG doesn’t determine who gets charged and prosecuted. That decision is made by non-political lawyers working in the Ministry, and based on the evidence they are given.

      I have no inside information on what the evidence was, but would assume that it purported to show that Senator Duffy had violated Senate spending rules. At trial it was found that Senator Duffy had complied with the rules and committed no crimes.

      The issue was not partisan political reasons, just political reasons. Like the rest of the country, the Conservative PM and PMO were shocked by media ‘revelations’ of Senators’ dishonest spending for personal benefit being charged to taxpayers. If any of the Senators in question were Harper appointees, there would be suggestions that Harper had appointed crooks to the Senate because he liked such people, and had bad moral judgment. Obviously, this would be embarrassing, and could reduce his and his party’s popularity. There would be an incentive to counter that embarrassment by seeing to it that the embarrassing Senators were punished. That would give the PM the moral high ground. Whether that incentive actually led to the ultimate result is not something I can know, as I am not a mind reader, so our discussion is really about incentives, not facts about mental states.

      The political game — if there was any — would have consisted of presenting an incorrect interpretation of the Senate spending rules, and perhaps also some spending “facts”, that did not stand up to scrutiny at trial.

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  5. Hi,
    Thanks for the article. You clearly spell out the unethical behaviour, but also refer to “unlawful political interference”. Layperson question – what is the distinction between unlawful and illegal or criminal? Given you conclude that voters will decide in the end, I’m assuming there is a difference.

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    • Good questions.

      Political interference with a prosecution may be a matter of degree. If a political leader in a position of authority such as an AG or PM said to an individual prosecutor toiling away in the courts “I think you should prosecute Dave for crime X because, e.g., our prosecution statistics are low this year and we don’t want a budget cut” that would be unlawful. Also if the politician said “I see you have evidence that Dave is probably guilty of crime X, but I don’t want you to prosecute him, or if you do, ask for the minimum fine and no jail time. He is my nephew, so go easy on him” that would be unlawful.

      Unlawful and illegal are often used as synonyms, although there may be some differences. “Illegal” is usually more specific, so we can point to a statute and say that’s why it is illegal. “Unlawful” is more general, such as when someone does something inconsistent with a general legal principle or custom.

      Criminal is far worse, such as if a politician offered a bribe or a pay braise to a prosecutor to prosecute or not prosecute someone.

      I agreed with JWR when she was asked whether anything illegal had been done and she said “no”. That’s because the principle of the independence of the AG is not written down in any statute, it is part of our unwritten constitution. If someone sued the PM and the PM’s treatment of JWR is as she described it a court may, depending upon the evidence, declare that these meetings with her and her staff were unlawful. As I don’t know all the facts and am not a judge, the focus of my post was on the word “unethical.”

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  6. I have been following the Scandal That Keeps On Giving from day one. I have read listened and watched EVERYTHING. This post of yours Andrew has it all: clarification, distinctions, nuance and factual insight. This piece MUST land in Trudeau’s lap! Gratitude!

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  7. A couple of questions. Are we never to know what the DPP’s reasoning was in refusing SNC Lavalin a Deferred Prosecution Agreement? Surely transparency is part of the rule of law as well. It occurs to me that much of the “harassment” visited on the former AG was over; why the DPP made the decision she made, and then why the former AG did not exercise her discretion in the case ( although you have supplied plausible reasons for the AG’s actions, they still appear to me as speculation)? However it is the lack of transparency around the DPP that concerns me most.

    Finally I wonder if you would comment on the ability of the AG to exercise discretion? For example, in this case, to take over the prosecution of SNC from the DPP. If the DPP is never to be questioned, why provide the AG with the ability to over rule.

    I ask this question because I think it will become an important one as a result of this “scandal”. I ask also because I believe there is the example of AG discretion in extradition cases. We have the case of Ms. Meng currently before the courts. If we are to take the Hassan Diab case as an indicator, it is likely that the courts will rule for Ms. Meng’s extradition, despite the fact that President Trump has indicated on more than one occasion that this is purely a political affair (i.e. not strictly rule of law). The AG from my understanding, has the final say in extradition, but never goes against the decision of the courts. Of course the extradition of Ms. Meng would be tragic for Michael Spavor, Michael Kovrig and Mr. Schellenberg. In such an obvious politically motivated case, does the desire to do the right thing ever play a part?

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    • You have raised some complex questions. I’ll try to answer them briefly.

      The federal DPP, like the provincial prosecutors, will provide transparency to the lawyers for an accused as to why they are being prosecuted, what the evidence is that is both exculpatory and going to guilt. SNC-Lavalin and any other corporate accused will know in some detail why, based on the evidence, they are being prosecuted rather than invited to negotiate a DPA. The criteria for eligibility are set out in the law, and the DPP’s decision will be based on these criteria. So there is transparency to the persons who need to know, and if it goes to court all the relevant evidence will be made public at trial.

      Transparency to the media and the public at large is another matter. There is the importance of the accused’s privacy. Publicizing the evidence against SNC-Lavalin and saying “that’s why you aren’t being invited to negotiate a DPA” could be highly prejudicial to SNC-Lavalin’s reputation and share prices. If the Crown’s star witness’ evidence falls apart at trial the company will be acquitted, but the company is already convicted in the court of public opinion if the DPP publishes allegations not yet proved in court. In the case of individuals rather than corporations, if prosecutors revealed evidence before trial it could be highly prejudicial to the accused’s future employment prospects, to his/her family, and make it difficult to find an unbiased jury. The cost of pre-trial transparency to the public is just too high.

      Actually, the reasons why the DPP won’t go the negotiation route are easy to guess if you read the criteria for the DPA. One of these is obvious. There is a big difference between taking the initiative to come to the DPP to confess that your company has committed an offence versus carrying on the offence for a decade in Libya, getting caught by the Swiss authorities, and then doing it again in Canada with the $1.5 billion McGill University Hospital.

      I have represented companies in several domestic and international price fixing cases. If the company comes clean before the RCMP are knocking on the door it will be treated a lot better than if it waits to be caught, or only comes clean after reading about others having done so in the newspapers. The reason why the prosecutors give benefits for coming clean first is to create the incentive to do so. That way hidden crimes are more likely to be exposed, and not repeated.

      The DPP was created by statute to be independent of politicians. The AG override of the DPP is just a safety valve. It has to be exercised very sparingly and only in an extreme case where the DPP is making an unlawful decision. The AG doesn’t have to agree with every decision of the DPP, but only to find that what the DPP is doing is not so unreasonable that it cannot be allowed to stand.

      Remember that the AG is a political actor, as part of Cabinet, and we don’t want to politicize prosecutions. If we do that, friends of government are given special deals or not prosecuted, while people the government doesn’t like or who don’t make nice campaign contributions get prosecuted with maximum severity. I think the main reason the AG didn’t overrule the DPP here, as in every other case, is because the DPP’s decision is not indefensible.

      If the AG took over the prosecution she would not be able to spend the next year or two preparing for and conducting the trial personally. That would be a full time job for several lawyers. She would have to hire outside prosecutors who would be starting almost all over again, and continue to supervise the prosecution personally while also carrying on her duties as both Minister of Justice and AG. (The UK AG is not a cabinet member, and has none of the Minister of Justice duties of ours.)

      As well, the AG would have to justify in public, probably in Question Period, why she took it over: what was the horrendous conduct of the independent DPP that justified taking away that independence. That would be unprecedented in the 13 years that the DPP has existed, with both Conservatives and Liberals in power.

      As for the Meng case, there is no certainty that the court will extradite her given Trump’s comments. Also, the alleged offence in the US doesn’t exist in Canada, another factor against extradition. You can be sure that the judge in that case will know about Michael Spavor, Michael Kovrig and Mr. Schellenberg, and will not want to extradite Ms. Meng if there is any legally valid reason not to do so. Here is how it works:

      https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html

      The Hassan Diab case is shocking. The court’s reasons for decision are unclear, and might have justified a Ministerial over-ride. Of course, the Minister didn’t know before the full story came out about how wrong it was to extradite the professor.

      If the judge orders the Meng extradition and the Canadian Minister of Justice refuses to send Ms.Meng to the US, the US will see that as a political act, inviting some sort of retaliation. Of course, the Chinese government would be happy, and maybe release its Canadian hostages. However, I doubt that the Minister would over-rule a court, even in the Meng case, as that would also set a precedent. The courts have to get it right themselves, and cannot rely on political actors to correct their errors.

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      • Thank-you for the swiftness and clarity of your reply. After posting I had some doubts as to whether you would be able to make anything of my ramblings.

        Also thanks for the link on the Canadian extradition process. I had seen this before, but had lost the link. However in rereading it I must say I was even less convinced of the likelihood of the courts ruling in Ms. Meng’s favour. Less likely still after reading your comments on discretion. In this case the Justice Minister’s discretion ( I had wrongly identified the AG). It seems from your comments that the bar will always be set too high. Unless the case is black and white, discretion although allowed, will never be exercised. However that argument is perhaps best revisited once the ruling for Ms. Meng’s extradition lands on the Justice Minister’s desk ( baring Trump’s withdrawal of the extradition upon a successful trade treaty with China – Canada would have to give him something for the withdrawal, after all leverage is valuable, all things are transactional).

        I do have one question/clarification. That has to do with transparency. Certainly I agree we don’t want the details of a case made public subject to prejudice. However you touched, in your response, on the criteria that is set out in the law to determine whether a case would qualify for a DPA. I don’t see how the DPP’s reasoning on the eligibility would necessarily be prejudicial.

        “The criteria for eligibility are set out in the law, and the DPP’s decision will be based on these criteria”

        When there are optional prosecution methods would it not be more transparent and helpful if the DPP’s reasons for picking one method over another was made more visible? The failure to comprehend ( by the PM , PMO and SNC Lavalin if they are to believed) what was in the thinking of the DPP and the AG, compounded by the failure on both sides to adequately communicate, appears to me to be at the root of this whole farce. The only one that has been served by this nonsense is the Conservative Party. Everyone else appears to be losers, to the greater detriment of the country.

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      • Think about the discretion to over-rule the DPP or the Court in an extradition case as being analogous to a fire extinguisher in your home. They are only to be used in case of fire. Here there was no fire.

        The reasoning on eligibility cannot be made public for at least 3 reasons. First, the reasons why would necessarily have to provide some evidence in support of those reasons, creating a privacy problem. Second, any reasons made public could and probably would be challenged in court by the company on the ground that the DPP had given consideration to irrelevant factors, failed to consider relevant ones, or failed to give some factors appropriate weight. (If I was SNC-Lavalin’s lawyer that’s what I would recommend that it do.) Chalk up another 2-3 years of litigation before proceeding with the charges. And third, one of the most important factors is entirely subjective: that in the opinion of the prosecutor a DPA would not be in the public interest and would not be appropriate in the circumstances. It would be very difficult to explain why someone thinks that, and very easy to challenge it.

        There is no need for the constitutionally independent DPP and the AG to communicate anything to politicians. Politicians have no legally recognized interest in how prosecutorial discretion is to be exercised in a particular case. The PMO’s intention was not to inform the public of anything, but to affect the outcome of a prosecution in secret. And what is worrying is that if the Globe and Mail hadn’t broken the story no one would have know that any of this was happening.

        There are literally hundreds of prosecutions every year. If the politicians can demand answers in this one, why not others?

        The politicians wrote the DPP Act and the applicable sections of the Criminal Code. If they don’t like how these are being applied in general they can amend them. But they cannot ask prosecutors how or why they are doing something in a particular case.

        If the accused doesn’t like what is happening, they have their legal remedies in court. SNC-Lavalin recently pursued that remedy, and lost. Politicians are not there to become in-house lobbyists for any company accused of anything.

        Also there are not optional prosecution methods. There is only one method: prosecution on the charges laid. The negotiation of a DPA is not a prosecution method, but the very opposite: the avoidance of prosecution.

        Experience in the US with DPAs may also have been a consideration for the DPP. There have been a lot of repeat offenders there, because if they can estimate the penalties to be paid (compensating victims, if any) then it may be more profitable to pay bribes, get huge contracts, and negotiate the next DPA penalty if caught. As well, some authorities have used DPA’s to extort money from big companies, filing dubious charges, as the authorities keep the money and add it to their funding appropriations. Finally, the usual terms of a DPA require the appointment of a monitor to supervise the company, with powers to over-rule even the CEO. The monitors are often current or retired prosecutors without any business experience to run a big company, and have made bad decisions that harmed the company and its employees and shareholders. DPAs are not necessarily good for anyone.

        I agree with you that “Everyone else appears to be losers, to the greater detriment of the country.” But don’t blame the DPP or the AG. Look who started this. If the PM and his staff had respected the independence of the prosecutorial function and made no attempt to influence the outcome of a prosecution there would have been no detriment to anyone. The buck stops at the top.

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  8. This has really cleared up a lot of things for me. Thank you very much. This should be required reading for any concerned citizen. I’ve passed the link on to about a dozen or so folks and got nothing but positive feedback.

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  9. Andrew,
    Your insight, easy to understand examples, straight forward explanations and level of detail are SO refreshing.
    I feel so many issues in this day and age are oversimplified.
    Maybe it’s the 240 characters generation. Maybe it’s the shift of news gathering.
    Maybe it’s the desire to generate scandal to get more clicks.
    Maybe it’s all three?
    Whatever the cause, your insight is refreshing! You are a great service to all of us and hopefully we can help spread your writings to others and help them better understand complex issues.
    Kind regards;

    Robert West

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    • Thank you so much. This is much appreciated. It takes me several days of research and more days of writing to complete one blog. And I do this to help people develop a better understanding of contemporary legal issues of a public law nature.

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