THERE IS NO ‘MIDDLE GROUND’ ON PROSECUTORIAL INDEPENDENCE, AND THERE IS NO ROOM FOR ARGUMENT ON THE RIGHT OF THE ATTORNEY GENERAL TO MAKE DECISIONS ON CRIMINAL PROSECUTIONS. ANDREW COYNE.
Interference clearly laid out for all to hear
After all the distractions and red herrings, after all the character assassination and speculation about motives, after all the attempts to blur distinctions that are crystal clear or to twist words to mean their opposite, after all the desperate attempts to keep her from testifying, after all the lies, Jody Wilson-Raybould has brought things crashing back to reality. Her brief to the Commons justice committee — the committee that had refused to allow her right of reply, after her earlier testimony had been challenged by government witnesses — is a stinging rebuke, not only to her critics within the government, but to the many partisans and media commentators who have allowed themselves to lose sight of the central issue in the SNC-Lavalin affair: the attempts, involving officials from the prime minister on down, to interfere in a criminal prosecution for political reasons, in violation of the independence of both the attorney general and the director of public prosecutions. The headlines will be about the former attorney
general’s recording of a telephone conversation last Dec. 19 between her and the then clerk of the Privy Council, Michael Wernick. The tape backs up in minute detail her previous accusations that the clerk — like the prime minister, like his former principal secretary, Gerald Butts, his chief of staff, Katie Telford, and a half a dozen other senior government officials — improperly pressured her to reverse her decision not to intervene with prosecutors in the case. In particular, it makes hash of his denials that he made “veiled threats” that she would be removed from her job if she did not instruct the director of public prosecutions to drop charges of corruption and fraud against the company in favour of a so-called “remediation agreement.” The language is not even all that veiled: “I think he is gonna find a way to get it done one way or another … he is in that kinda mood and I wanted you to be aware of that … he is in a pretty firm frame of mind about this so ... I am a bit worried ... It is not a good idea for the Prime Minister and his Attorney General to be at loggerheads.” Neither can he claim to have been unaware she felt pressured to decide things the prime minister’s way, and that this amounted to “political interference.” She makes clear at multiple points in the conversation: that it and previous conversations with the prime minister and “many other people” were “entirely inappropriate,” that she was “uncomfortable having this conversation,” that she was “issuing the strongest warning I can possibly issue” against interfering with decisions by the DPP, that “we are treading on dangerous ground,” that “there is no way that anybody would interpret this other than interference.” Her brief also provides new details of a meeting the previous day between her chief of staff, Jessica Prince, and Butts and Telford, though alas without the benefit of tape recordings: just Prince’s contemporaneous account, relayed to her, first via text message, later by phone. Not only are there the lines quoted previously (Butts: “Jess, there is no solution here that doesn’t involve some interference”; Telford: “We don’t want to debate legalities any more.”), but further evidence of Butts’s dismissive attitude toward the independence of the DPP. Prince reports: “They clearly do not care about the (Public Prosecution Service of Canada.) Gerry kept talking about how it was created by Harper. I was like ‘sure but it is what we have and we have to respect the statute.’ No scruples” And there are further troubling allegations about the proposed involvement of external counsel — the name of former Chief Justice of the Supreme Court, Beverley McLachlin, keeps coming up — to “advise” the former attorney general on her “options”. To hear Butts’s testimony, though officials kept pressing Wilson-Raybould to seek this “advice”, it had no predetermined agenda. Wilson-Raybould’s brief suggests otherwise: “My COS asked what if the opinion comes saying, ‘She can review it, but she shouldn’t’ or simply, ‘She can’t review it’ end of story? Mr. Butts stated, ‘It wouldn’t say that.’” But all of this is mere detail. What is at stake in this affair remains, as Wilson-Raybould reminds the committee, nothing less than “the core principle of prosecutorial independence — a principle that at times appears to have been obscured by layers of commentary, hyperbole, and spin.” It is not, she says, “about how things are ‘experienced’, caucus dynamics, political ambitions, poll numbers, ‘erosion of trust’ or the role of social media.” Worse yet are the facile rationalizations for interfering the prime minister’s officials have offered — among them, that “prosecutorial decisions are never final” (that’s true, as a prerogative of prosecutors, not as a pretext for endless importuning of them by political staff) or that the attorney general is entitled to seek advice (to seek it, not to have it imposed upon her), or that there were “new facts or evidence” that somehow justified their actions (there was none, Wilson-Raybould says). There is no “middle ground” on prosecutorial independence, no room for argument on the right of the attorney general to make decisions on criminal prosecutions, free of pressure from other government officials: it is settled constitutional law, absolute and inviolable. It doesn’t matter what good reasons the prime minister might think he has. Nor is the AG obliged to keep him apprised of her decisions in such matters (though she did). It’s quite literally none of his business.
HE IS GONNA FIND A WAY TO GET IT DONE ONE WAY OR ANOTHER.