The system should work, without resignations
Monday morning the prime minister was musing aloud whether Jody Wilson-Raybould, having resigned from cabinet and laid bare the sordid inner dealings that make up the SNC-Lavalin affair, should be allowed to remain in caucus. By Monday afternoon, with the resignation of Jane Philpott, the question was whether he would still be allowed to be prime minister.
Behold the power of the well-timed resignation. Both resignations have rocked this government to its core. Why didn’t Wilson-Raybould resign earlier, then — not after being demoted to Veterans Affairs, but, as Liberal members of the Commons justice committee asked last week, when she was being improperly pressured, as attorney general, to stop the prosecution of SNC-Lavalin. Her answer: because she was all that stood in the way of the prosecution being stopped. “As long as I was attorney general,” she told the committee, “I was going to ensure that the independence of the director of public prosecutions, and the exercise of their discretion, was not interfered with.”
For all the pressure she was under, she knew she “was the final decision-maker on whether or not a directive (ordering the DPP to drop the charges, in favour of a negotiated settlement) would be introduced.” On the other hand, “I had concerns that when I was removed as the attorney general that this potentially might not be the case.” As it happens, no such directive was issued. What do we conclude from this? One response is to say: the system worked! Rather than dwell on the many attempts by officials up to and including the prime minister to subvert a criminal prosecution for nakedly partisan ends, we should instead give thanks, it is suggested, that their efforts did not succeed. Among those pushing this line, oddly, is the clerk of the Privy Council, Michael Wernick, named by the former attorney general as having been among the most aggressive of those attempting to bully and harass her into submission, to the point of warning her, obliquely, that her job was on the line — as, in fairness, it proved to be. “Despite the most extensive government relations effort in modern times,” he told the same committee, “the company did not get what it wanted … The independence of the investigative and prosecutorial function has never been compromised. The matter is proceeding to trial … The shields held. The software that is supposed to protect our democracy is working.” The shields held, that is, despite his own best efforts, and those of the various other political staff, ministers and civil servants sent to undermine and overwhelm them. The shields, in fact, amounted to one person, Wilson-Raybould, and her refusal to submit to the demands of the prime minister and his delegates to do something unprecedented and probably unlawful: interfere in a prosecution to suit the partisan interests of the government.
But surely her very ability to hold fast against their demands is evidence itself of the health of the system? Does this not, as one scholar has suggested, disprove the thesis of the all-powerful prime minister? Sure, she seems to have been fired for it, but “if you have to shuffle a minister out to get what you want,” writes professor Philippe Lagassé of Carleton University, that’s using “raw prerogative power to compensate for a shortfall in influence and authority.” Well, yes. But the prime minister’s authority over others is ultimately rooted in his power to hire and fire. If he never uses it, never makes an example of those who defy him, what good is it? The question is not whether the prime minister is all-powerful, but too powerful. In the end Henry VIII was unable to force Sir Thomas More to assent to his divorce from Catherine of Aragon. Does that mean he was not an absolute monarch?
As I’ve written before, a person of conscience, especially one who is willing to pay the price for it, wields his own peculiar power: the very asymmetry of his position, alone against the whole apparatus of government, can excite public sympathy and respect — to which even actual dictators must pay heed, never mind the leaders of a democratic state.
So yes, the prime minister’s principal secretary, Gerald Butts, has resigned, and yes, caucus is probably upset, and yes, Justin Trudeau will likely suffer a hit in the polls, and yes, the resignations of two of his most important ministers have shaken his government. But come on. It should not have to come to ministerial resignations to prevent the prime minister from abusing his power. Where was cabinet before this?
For that matter, where was caucus? Has anyone in caucus, with the honourable exceptions of Saint John-Rothesay MP Wayne Long, Beaches-East York MP Nathaniel Erskine-Smith and Whitby MP Celina Caesar-Chavannes, departed in any significant way from the government line on this matter? Has the Liberal majority on the justice committee invited any witnesses that had not been previously approved by the Prime Minister’s Office?
So the glass may be 10 per cent full, perhaps. The former attorney general was indeed able, while she remained in office, to prevent the prime minister and his flunkies from trampling all over the independence of the prosecutor. The precedent was averted of a wealthy corporation with a history of bribery and corruption escaping prosecution by lobbying everything that moves and threatening to shift its headquarters out of a politically sensitive province. But there has been precious little in the way of accountability for any of this. If the system were really working as it should, basic constitutional norms like prosecutorial independence would not hang on one woman’s defiance. If the system really worked, the minister of justice and attorney general of Canada would not have had to listen to lectures from unelected political staffers and supposedly non-partisan civil servants on the need to submit the rule of law to the higher demands of Liberal election strategy.
If the system worked, it would not be the prime minister, having been credibly accused of something perilously close to obstruction of justice, pondering whether his accuser should maintain her position in caucus. It would be the caucus deciding whether he can keep his.
A PERSON OF CONSCIENCE WIELDS HIS OWN POWER.