Our system allows politicians to influence judicial proceedings
Forgotten in the furor over whether Justin Trudeau’s office meddled in a court case is an inconvenient fact: In certain instances, Canadian law allows politicians to play a pivotal role in judicial proceedings. This may be one of those instances. The latest brouhaha stems from a Globe and Mail story last week. In it, unnamed sources said the prime minister’s office had pressed then-attorney general Jody Wilson-Raybould to have federal prosecutors work out a pleabargaining deal with Quebec construction giant SNC-Lavalin instead of taking it to trial.
SNC-Lavalin faces charges of bribery and corruption in relation to Libyan construction projects that date back to 2001. If convicted at trial, it will be barred from bidding on federal contracts for a decade. If the government agrees to a so-called remediation agreement — in effect a plea bargain — the company will still face stiff penalties but not the 10-year ban.
Federal prosecutors refused to offer SNC-Lavalin a plea bargain and Wilson-Raybould refused to override them. Pending a judicial review requested by the company, the trial is set to go ahead.
Earlier this year, Trudeau shuffled her out of the prestigious justice post and appointed her Minister of Veterans Affairs.
The inference the opposition Conservatives and New Democrats draw from this is that Wilson-Raybould was fired for bucking the prime minister’s wishes on the important SNC-Lavalin file.
And that may be exactly what happened. But was it illegal or improper? That’s a more complicated question.
Canadian law does not always draw a firm line between judicial and political processes.
The most obvious example of this is the notwithstanding clause in the Constitution that allows elected provincial or federal legislators to override some important civil rights — regardless of what the courts say.
The notwithstanding clause has been used several times since the Constitution was patriated in 1982, most notably in Quebec.
But there are other instances where politicians are legally empowered to involve themselves.
One is extradition. Those facing extradition to a foreign country for trial — such as Meng Wanzhou, the chief financial officer of the Chinese telecom firm Huawei — first must have their case heard by a Canadian judge. But the final decision is a political one made by the attorney general.
Another area where it is legal for politicians to meddle in a judicial case speaks directly to the SNC-Lavalin controversy. In most instances, the director of the federal prosecution service, a bureaucrat, has final authority over whether to bring a case to trial.
But the attorney general, a politician, is empowered by law to override the director if he or she wishes to do so. The only requirement is that any such override must be in writing and must be made public.
In other words, it wouldn’t have been improper or illegal for Wilson-Raybould to demand that her prosecutors work out a plea bargain with SNCLavalin rather than take it to trial. She would have had to explain herself publicly. But there is an arguable case that can be made for giving a break to a company that employs thousands in Quebec.
Would it be improper for the prime minister and his staff to argue such a case to the attorney general? If the attorney general were a judicial figure only, then the answer would be yes.
But attorneys general are both officers of the law and politicians. The attorney general sits in cabinet and is bound by cabinet solidarity. A provincial attorney general cannot refuse to enforce a federal law with which his government disagrees. But he or she can give such enforcement a low priority.
So it is in Ottawa. The attorney general is not simply a judicial figure. He or she is part of the governing ministry. When John A. Macdonald was prime minister he famously acted as his own attorney general.
In short, it makes no sense for the prime minister and attorney general to avoid talking to one another about the issues of the day.
And if they fundamentally disagree then, under the Canadian system, it’s not the prime minister who will be demoted.
Canadian law does not always draw a firm line between judicial and political processes