A strong whiff of abuse of power
New details in l’affair Lavalin add to stench
In the broad strokes, the report of the federal ethics commissioner, Mario Dion, into the SNC-Lavalin affair tells us nothing new.
It was already clear to anyone with eyes to see — it was not even really denied — that the prime minister and his officials repeatedly and strenuously pressured the former attorney general, Jody Wilson-Raybould, to interfere in the criminal prosecution of the Quebec-based engineering giant: specifically, by overturning the decision of the director of public prosecutions not to offer the company a “remediation agreement” in place of a trial.
It was equally clear — and again, not really denied — that, along with the supposed impact of such a decision on the company’s fortunes and those of its employees, the prime minister and his officials repeatedly invoked partisan political considerations, both with regard to the 2018 Quebec provincial election and the 2019 federal election.
And it was crystal clear that this pressure campaign continued long after the former attorney general told the prime minister (and his officials) it was improper, and should stop.
Of course it should. Whether or not a prosecutor may take into account the economic impact of an international bribery conviction — the law would appear to say no — neither she nor the attorney general may be pressured by others to do so, and whatever other concerns the AG may or may not take into account in deciding whether to intervene, partisan interests are absolutely verboten.
It is gratifying that the ethics commissioner, who alone heard testimony from all of the officials involved — the Commons Justice committee having heard only those witnesses it pleased its Liberal majority to call — should have found the same, as it is admirable that he should have so decisively cut through the fog of irrelevancies with which the government and its defenders have attempted to obscure the issue: whether the former attorney general gave due weight to the numbers of jobs at stake, for example, or whether she was “difficult.” These arguments are, in Dion’s magisterial summation, “immaterial to the matter under examination.”
“It is not for Mr. Trudeau,” he writes, “or me, or for any other administrative body to judge whether the attorney general has properly or sufficiently considered the public interest in matters of criminal prosecution.” It is, in law, entirely a matter for her discretion, as it is for the prosecutors in her department. With regard to a particular prosecution, she is not to mess with their decisions, except in the most extraordinary circumstances, and her cabinet colleagues are not to mess with hers in any circumstances.
So no, the news in his report is not the finding that, indeed, the prime minister “used his position of authority over Ms. Wilson-Raybould” to seek to influence her decision, on behalf of both his own political interests and the company’s private financial interests, in violation of section 9 of the Conflict of Interest Act. The news, rather, comes in the details of how this was attempted, which make the matter even more disturbing than it first appeared.
We knew before now of the massive, all-government lobbying effort the company had mounted in support, first, of the addition of remediation as an alternative to prosecution for certain charges under the Criminal Code, and second, of its application in SNC-Lavalin’s case. We did not know quite how eager the government was to follow the company’s lead, or how closely the two conspired, even against their own attorney general.
It seems clear from the report, for example, that it was at SNC-Lavalin’s behest that the provision was inserted in the 2018 budget, after a hasty round of public consultations. At the time, it was presented as “a useful additional tool for prosecutors to use at their discretion in appropriate circumstances.” But as it emerged neither the government nor the company would accept any exercise of prosecutorial discretion but that which agreed with them.
In the weeks and months after the DPP’s decision, various government officials were in close contact with SNC-Lavalin’s lawyers, including former Supreme Court justice Frank Iacobucci, trying to find a way around it: canvassing options, sharing opinions and so forth. The talks began before the company had been officially informed of the decision, and continued, outrageously, even after it had applied for a federal court to review it.
At times, the “options” they discussed bordered on the surreal. Serious consideration was apparently given to having the attorney general intervene in the judicial review — in which her own prosecutorial service was already a participant.
Even stranger were the attempts, apparently unsuccessful, to involve the retired chief justice of the Supreme Court — and Iacobucci’s former colleague — Beverley McLachlin. At one point SNC-Lavalin floated a plan whereby the government would ask McLachlin to mediate a settlement between the company and the DPP, as if the DPP were just another wing of the prime minister’s office.
More often her name was invoked as someone who could provide external advice to the presumably ill-informed AG and her equally hapless team of top legal advisers. The possibility was always carefully put to Wilson-Raybould as involving “someone like” McLachlin. As Dion writes, “she did not know until I mentioned it to her … that preliminary discussions between the former chief justice and SNCLavalin’s legal counsel and a senior advisor in the Prime Minister’s Office had already taken place.”
All of this cries out for further inquiry, not least because even the ethics commissioner, despite his best efforts, found himself repeatedly stonewalled by the Prime Minister’s Office. It took 49 days to deliver the first batch of documents he requested; 108 days to deliver the second. The prime minister and his officials suffered a number of convenient memory lapses.
And: “nine witnesses informed our office that they had information they believed to be relevant, but that could not be disclosed.” Why? Because of cabinet confidence — the same cabinet confidence that was supposedly waived in February. So, starting in March, the ethics commissioner raised the matter with both the prime minister and his deputy, the Clerk of the Privy Council, asking that the witnesses be allowed to testify, with a promise that the information they provided would not be disclosed publicly. His request was denied.
Conflict of interest, frankly, is the least of the concerns raised by this affair. There is a strong whiff, rather, of abuse of power and, possibly, obstruction of justice.