POLITICAL SEPARATION CAN BE PROBLEMATIC
John Whyte takes a look at the relationship between prosecutors and the government
At his recent press conference on the Snc-lavalin controversy, Prime Minister Justin Trudeau did not apologize to former justice minister and attorney general Jody Wilson-raybould for the badgering she received from his office over her adoption of federal prosecutors’ recommendation.
That recommendation was that Snc-lavalin should be prosecuted for corporate crimes and not be offered the alternative process of remediation, which could lead to heavy financial penalties but not to criminal conviction, and exclusion from federal contracts for 10 years.
While the prime minister accepted part of the blame for the confusion over whether the minister’s decision was a final one, the real controversy in this matter relates to another issue: the degree of separation there needs to be between those who are responsible for deciding whether to proceed by way of a prosecution and the members of government who hold opinions on whether the alternative to prosecution should be followed.
On this issue of the relationship between prosecutors and members of the government, the prime minister said he was open to considering whether there should be a sharper structural division between those carrying prosecutorial responsibility and those with opinions on which choice better serves the public interest.
Perhaps his proposal was implicit recognition of the legitimacy of the former minister’s concerns over relations between her and governmental members with respect to her decision.
Some jurisdictions have chosen to institute a high level of immunity from political interference with prosecutorial activity. Nova Scotia, for instance, has created a prosecutorial authority that is not tied to the Justice Department.
The legislation that created the separate prosecutions agency in that province states there cannot be any ministerial involvement with prosecutions other than the minister of justice may give a direction to the prosecutions department, but only if it is given in writing and published.
Other provinces have not instituted such definite prosecutorial independence.
The reason for the sharp delineation of functions is clear. Exercises of governmental power often have a coercive effect.
Consider taxation, zoning laws, market regulation and, of course, crime.
While none of these powers are to be used to punish political opponents or favour political friends, it is the power to punish crimes that has raised the greatest concern over the wrongful use of governmental power. This concern underlies the need for prosecutorial independence.
Nevertheless, most provinces (as well as the federal government) have not adopted this strict regime of separation and there is good reason for this.
As dangerous as partisanship in the administration of criminal law is, the lack of political accountability for prosecutorial decision-making can also be costly.
Prosecution branches wield tremendous power over the lives of citizens, and their decisions shape governments’ response to social dysfunction.
They, as much as any other government bureaucracy, can inflict harms if they fail to pursue their function without consideration of the broader public interest.
It is not a mistake to build in some form of check on the administration of criminal justice and in maintaining some degree of operational connection between prosecutors and the political branch through having prosecutors work within a ministry led by a member of cabinet who, in turn, will be accountable to the cabinet, although not subject to direction on matters of legal interpretation and application.
There are legitimate political and social questions to ask of the administrators of criminal justice, including the prosecutions branch.
Are dangerous offender applications being used with due restraint? Are community justice, or diversion, programs (as alternatives to prosecution) being utilized and supported?
These, as well as the general question of the efficacy of criminal justice in keeping communities safe, are the kinds of legitimate questions that an attorney general can ask and, in turn, can be asked about by cabinet colleagues.
There may be a crucial distinction to be drawn between raising a question over the general effect of prosecutorial choices and political actors becoming engaged with specific prosecutions.
The latter will certainly give rise to quicker suspicions of wrongful political meddling.
But even in individual cases there might be reason to ask if the aims of criminal justice are being thwarted by a prosecutorial focus on what could succeed at a criminal trial as opposed to what will best serve broad social interests and satisfy justice.
It is, though, important to note that in developing new criminal justice policies — as in the remediation scheme that Snc-lavalin sought to use — there is not usually any legislated limit on prosecutorial discretion and, although prosecutors are asked to consider the social and economic implications of their decisions, they are very seldom made subject to direction from other governmental members.
The prime minister’s suggestion that the relationship between prosecutorial offices and persons in political office needs to be examined could well be sensible, but there is no perfect balance of the competing demands of preserving a degree of democratic accountability for criminal prosecutions and precluding wrongful interference in the administration of the law.
The real controversy in this matter relates to ... the degree of separation there needs to be between those who are responsible for deciding whether to proceed by way of a prosecution and the members of government who hold opinions on whether the alternative to prosecution should be followed.