In a recent op-ed, Ottawa Citizen columnist Andrew Cohen blames the fallout from the SNC-Lavalin (SNC-L) affair on two women: Jody Wilson-Raybould and Jane Philpott. According to Cohen, their impulsiveness, disloyalty, and short-sightedness “have put the achievements of the Trudeau government at real risk.”
By tarnishing the Liberal brand, these women have ruined everything.
While searching in earnest for scapegoats, Cohen forgot to mention the real villains in this soap opera.
SNC-L has never really warmed up to the “sunny ways” approach. The company has been debarred for 10 years by the World Bank, forbidden to bid on global projects as a result of high-level corruption in Bangladesh in 2009-2010.
Moreover, SNC-L faces charges of fraud and corruption in connection with nearly $48 million in payments made to Libyan government officials between 2001-2011. This does not include the $1.95 million spent on booze, nude dancers, porn stars and sex workers to spoil Libyan dictator Moammar Gadhafi’s son, Saadi, when he was invited to Canada in 2008 by SNC-L.
In 2009, the company’s former CEO, Pierre Duhaime, was involved in a $22.5 million bribery scheme that helped secure the McGill University Health Centre project for SNC-L.
As well, between 2004-2011, SNC-L made illegal federal campaign donations to the tune of $118,000, the vast majority of which went to the Liberal Party of Canada. Suffice it to say, SNC-L thinks laws are for sissies.
The other sinners—those who work closely with the Prime Minister’s Office (PMO)— possess a rather cavalier attitude towards the rule of law. For instance, the Liberals in mid-stream wanted to ignore the basis of deferred prosecution agreements (DPA’s). Instead of voluntarily coming forward and admitting wrongdoing, SNC-L was outed after a multi-year police investigation; therefore, it does not qualify for a DPA.
Furthermore, the decision for a DPA lies solely with the Director of Public Prosecutions (DPP), Kathleen Roussel, and the Attorney General—except when it does not. Gerald Butts, former Principal Secretary to Trudeau, reassured the public that it was always Wilson-Raybould’s call, but the art of persuasion was still required to soften her position.
Raybould revealed that for a period of approximately four months (September to December, 2018), she experienced “a consistent and sustained effort by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the attorney-general of Canada in an inappropriate effort to secure a deferred prosecution with SNC-Lavalin.”
Put simply, politicians and other officials had crossed an ethical line.
As Conrad Black rightly points out in the National Post, “The prime minister, his principal secretary, the clerk of the Privy Council, and others should all have realized that what they were doing was improper, amateurish and politically dangerous.”
Desperate for a DPA, the Liberals leveraged the “job losses” argument for all it was worth, forgetting that under the Criminal Code (Section 715.3), the Attorney General cannot use “national economic interests” in deciding a DPA. Hence, the loss of 9000 jobs, assuming that’s even true, is not relevant to the case. When the PMO did not get a DPA from Wilson-Raybould, she was shuffled to a new cabinet position: Indigenous Affairs.
As someone who spent her entire life opposed to the Indian Act, Wilson-Raybould could never accept such a humiliating portfolio. Butts admits that, in hindsight, he should have known better than to offer it. “My bad” sums up his credibility in this regard.
The rule of law cannot be ignored whenever it’s convenient, and neither the PMO nor corporations can tell the DPP or the Attorney General how to interpret legal matters. Even worse, removal of an Attorney General in order to secure a better political result would run contrary to Section 139 of the Criminal Code under obstruction of justice, especially if intent can be shown.
Alan Freeman, Honorary Senior Fellow at the University of Ottawa’s Graduate School of Public and International Affairs, believes that obstruction of justice was simply a means to an end, a way to help SNC-L obtain a DPA.
The plan for Trudeau and company was to convince Wilson-Raybould
to overrule the director of public prosecutions and stop a criminal trial against SNC-Lavalin Inc. on corruption and fraud charges […] The key goal of the shuffle was to get Wilson-Raybould out of justice and put a more cooperative ‘team player’ [David Lametti] in place.
Some legal experts insist that what the PMO was doing was, in fact, criminal. Brian Smith, a former attorney-general of British Columbia (1983-88), said in an interview that Federal officials “were trying to get the AG to do something that was illegal.” Smith adds, “How else can you interpret it? Because there is no way SNC-Lavalin could have met the [DPA] criteria.”
Andrew Roman, a retired litigation lawyer with over 45 years of experience at all levels of court, including the Supreme Court of Canada, acknowledges that Trudeau was obstructing justice.
Basically, the Prime Minister was “attempting to influence the Attorney General to reverse her decision not to interfere in the Director of Public Prosecution’s (DPP) prosecution of SNC-Lavalin for fraud and bribery.”
Roman also highlights the actions of Michael Wernick, Clerk of the Privy Council of Canada. Wernick’s so-called “legal advocacy” did, in fact, constitute “unlawful political interference.” According to Roman, “it’s only real purpose is to influence the outcome of a specific prosecution.”
Those within the PMO were fully aware of both Wilson-Raybould’s independent legal role as Attorney General and the rule of law, a fact made clear by the Supreme Court of Canada in the frequently cited 2009 case Miazga v. Kvello Estate:
 The principle of independence requires that the Attorney General act independently of political pressures from government […] 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 […] could erode the integrity of our system of prosecution. [Emphasis added.]
Contrary to what Andrew Cohen thinks, this kind of destructive short-sightedness—specifically, political interference by the Liberals in an ongoing prosecution—is scandalous. Instead of blaming women for the demise of the Liberal Party of Canada, here’s a novel idea. Start first by condemning those parties who consistently break the law or who think that the rule of law means “yeah, whatever.”
Stuart Chambers, Ph.D., teaches in the school of sociological and anthropological studies at the University of Ottawa. Contact: [email protected]