Canadian Politics

SNC-Lavelin Affair

August 28, 2019

Two more instances of legal opinions on Ethics Commissioner's Report on the SNC-LavelinAffair:

Mistakes, irrelevant facts mar ethics report on PM

Last week (August 21), David Hamer, a retired barrister who was a member of a national law firm for 35 years, stronly condemns the Ethics Commissioner's report.

He states that the Commissioner misinterpreted his mandate as well as the Shawcross Doctrine. "The report deploys irrelevant facts, some wrong, and ignores relevant facts, all in a way calculated to predispose the reader."  Inother words,Mr. Hamer calls into question the Commissioner's understanding of his mandate and his interpretation of the facts as well as his bias. Read the article here.

More recently, Paul G. Thomas, professor emeritus of political studies at the University of Manitoba who has written extensively on finding the right balance between independence and accountability for agents of Parliament, wrote this article in the Winnipeg Free Press on August 26, 2019.

Was watchdog out of line on SNC-Lavalin?

"... there are reasons to question how the commissioner approached his mandate, his interpretation of the facts and his ultimate judgment that Trudeau violated a law or a constitutional convention." Again we have a legal expert questioning the Commissioner's understanding of his mandate and his interpretation of the facts.

August 18, 2019

Here is a take on the Ethic Commissioner's Report by:

Errol Mendes, a professor of constitutional and international law, president of the International Commission of Jurists, Canada, and a recipient of the Order of Ontario.

His article, found here in a link to the iPolitics article published August 15, 2019 in which this opinion was published is entitled:

"Did the ethics commissioner misinterpret his own act and jurisdiction?"

"There seems to have been a serious misinterpretation of his own act and his jurisdiction by the ethics commissioner. There needs to be far more in depth discussion of the accuracy of this report among government, the media and indeed the public deciding whether the report will influence their vote in the coming election."

Ethics Commissioner Mario Dion.

Here are the main points of his article:

Ethics Commissioner Mario Dion discusses Section 9 of the Conflict of Interest Act regarding the Prime Minister trying to influence the Attorney General's decision on the criminal prosection of SNC-Lavelin.

In his report he states that “simply seeking to influence the decision of another person is insufficient for there to be a contravention of Section 9.”

Then he states that “the second step of the analysis was to determine whether Mr. Trudeau, through his actions and those of his staff, sought to improperly further the interests of SNC-Lavalin.”

What is missing in his report is whether Section 9 refers to conflicts of interest which benefit only certain parties where there is no claim of advancing the public interest or to situations where protection of the public interest plays a role. The writer, Errol Mandes, points out that governments often advance private interests through, among other things, subsidies and tax changes.

This is very important, since the government was trying to influence the situation in the public interest of saving 9,000 jobs.

The Commissioner ignored this aspect and changed the scope of Section 9 to the "myriad of government actions" where government tries to advance the interests of the private sector and whether the Commissioner thinks it falls into what he or she consideres improper.

This leads the Commissioner outside of his jurisdiction by saying that any time the government advances the interest of any corporation, he has the jurisdiction to determine if actions taken are contrary to the Shawcross Doctrine that this is imroper.

(The Shawcross Doctrine, named after Sir Hartley Shawcross, the Attorney General of England, who later became the lead British prosecutor in the Nuremburg Trials, stated that the Atorney General may or may not, but should consult with his or her colleagues. And that any final decisionrest with the Attorney General.)

The Commissioner's approach is moving his mandate into the realm of "the highly complex area of constitutional principles regarding prosecutorial independence, and the specific constitutional roles of ministers and senior government officials who interact with the attorney general.

"This is the domain of constitutional experts providing advice to governments, the courts and especially the top courts of parliamentary systems."

"There seems to have been a serious misinterpretation of his own act and his jurisdiction by the ethics commissioner."

Here again is the link to the iPolitics article published August 15, 2019.

March 15, 2019

The SNC-Lavelin Affair was a political circus, started by an Attorney General/Minister of Justice who did not know how to do her job. And this is not only my opinion but the opinion of one of Canada's most prominent lawyers, Brian Greenspan.

Brian Greenspan is past president of the Criminal Lawyers’ Association, founding chair of the Canadian Council of Criminal Defence Lawyers and the recipient of an honorary doctor of laws from the Law Society of Ontario. With his more than 45 years as defense council his words carry a lot of weight.

A link to Brian Greenspan's opinion printed in the Globe and Mail can be found here.

Here are some points he makes in his article:

Jody-Wilson Raybould has misconceptions of the role of the Attorney General.

Although she must be objective in her decisions, she should not be immune to criticism and pressure from her colleagues and should have examined positions taken by them instead of simply dismissing them.

He has "repeatedly and unrepentantly attempted to persuade prosecutors and courts that they ought to exercise their discretion, in the public interest, in a manner favourable to what I have urged was a just result."

She treated the decision by the Director of Public Prosecutions (DPP) as "essentially non-reviewable" whereas he believes the opposite is true and that it is the resposibility of the Attorney General to review any and all decisions.

And about potecting the public interest he had this to say:

"In fact, one of the key underlying objectives of remediation agreements is to reduce the collateral negative consequences to those not engaged in the wrongdoing"

" However, rather than assess or weigh the competing positions, the attorney-general appears to have reflexively deferred to the DPP and abdicated her responsibility for vigorous and independent oversight."

Again, here is the link to his article published in the Globe and Mail. 

This circus was propogated in large part by a Leader of the Opposition whose hypocrisy is overwhelming.

When Gerald Butts, Justin Trudeau's right hand man, who resigned durug the SNC-Lavelin Affair, rejoined the Liberal Team to prepare for the upcoming election Andrew Scheer declared, in a statement on July 21, 2019, “This is outrageous and shows a shocking lack of respect for the integrity of our democratic institutions."

If you would like to see examples of "a shocking lack of respect for the integrity of our democratic institutions" check out his Harper ebook, published by The Tyee, which enumerates in detail many examples of "a shocking lack of respect for the integrity of our democratic institutions" by the Stephen Harper Government of which Andrew Scheer was a part.

March 1, 2019

Since this nasty bit of politics may very well rear its ugly head again during the upcoming election period, I am reproducing some Letters to the Editor which I sent to the Toronto Star. They were never published. So here are copies of emails of these letters:

A Loss for Indigenous People - In Defense of Justin Trudeau and his Team

The Star has printed many letters to the editor condemning Justin Trudeau and his team concerning the SNC-Lavelin affair. Perhaps your readers can appreciate a different perceptive on this matter.

They did not get the memo. Justin Trudeau, the Prime Minister, did not get the memo. Gerald Butts, the former principal secretary to the Prime Minister, did not get the memo. Michael Wernick, Clerk of the Privy Council, did not get the memo. Neither did any of the other parties stipulated in Jody Wilson-Raybould's testimony get the memo. That's because there was no memo. In government and in business, when a final decision is made it is put in writing. Jody Wilson-Raybould's decision was never communicated in writing. This despite, according to testimony from Gerald Butts, Jody Wilson-Raybould's “preferred method of communicating complex and/or important matters is in writing”. And he recited several examples of this. So why was there not a written decision? Furthermore Jody Wilson-Raybould actually requested meetings to discuss this affair after she says she had made her decision. So how was one to presume that a final decision had been taken. Perhaps Jody Wilson-Raybould is used to a more oral tradition. But in government the written communication determines the point of decision. This point was never reached in the SNC-Lavelin affair. She did however manage to communicate her resignation in a long and detailed letter of resignation which she made sure everyone could read.

The law in question stipulates that the Deferred Prosecution Agreement can be granted up to the point of a verdict being rendered. So would it not be proper to pursue this matter until that point, considering the impact of such a decision? Jody Wilson-Raybould says she was pressured. When I was a working stiff (I am now retired.) pressure was when my boss would barge into my office and yell berating remarks at least once a day. Jody Wilson-Raybould had ten or eleven communications (and much more respectable communications than I referred to above, I'm sure) over a period of four months. Once a week. You call that pressure? In this situation, I would expect no less than from the Prime Minister and his team.

And what was this pressure intended to do. Get a second opinion from an outside expert or a panel of experts. She was encouraged to consult with one of the most respected jurists in Canada, the former head of the Supreme Court of Canada, Beverly McLaughlin. It seems to me that Jody Wilson-Raybould's ego got in the way. Much ink has been used to extol the supposedly high principles of Jody Wilson-Raybould. Perhaps more ink should be used to describe her apparently over-sized ego.

When Scott Brison resigned as head of the Treasury Board, Justin Trudeau believed, with good reason, that Jane Philpott should be moved from Indian Affairs to fill his spot. An ideal candidate for the Indian Affairs Portfolio would be Jody Wilson-Raybould. She had previously been an important advocate for her community and could send a strong message that the government was serious about righting the wrongs of the past. Jody Wilson-Raybould refused the portfolio saying she did not like the Indian Act and would have no part in its administration. Did she not realize that she could have had an important impact on making changes which could benefit the Indigenous Community? By refusing this Portfolio she did her people a great disservice.

And as for Andrew Scheer and Jagmeet Singh, they should really get off their high horses. Especially Andrew Scheer who participated in the most ham-fisted government Canada has seen in recent history by Stephen Harper. If you believe that they would have behaved any differently in a similar situation, I have a bridge in Brooklyn that I can sell you. The hypocrisy is overwhelming.

A Loss for Indigenous People - Postscripts

P.S.1: I have absolutely no affiliation with the Liberal Party or any persons implicated in the SNC-Lavelin affair. I write these comments as a Concerned Canadian Citizen.

P.S.2: In not putting her decision in writing,Jody Wilson-Raybould was remiss in her duties as as Attorney General. The Rule of Law and all its intricacies and applications are contingent on the written word. Otherwise the next time I get pulled over by the police for a traffic violation I will simply have a heated discussion with the officer and then tell him he need not write a ticket. We'll do it the Jody Wilson-Raybould Way. While Jody Wilson-Raybould was remiss in her duties, the Prime Minister and his team were actually following the Rule of Law. They were fulfilling their appropriate, lawful duties as parliamentarians and civil servants.

P.S.3: Justice Department deputy minister Nathalie Drouin's office prepared a document to advise Jody Wilson-Raybould of her options and obligations and about the consequences a criminal conviction might have on SNC-Lavelin. She did not provide the report to the Privy Council Office at the direction of Jody Wilson-Raybould. Did she even read the report?

P.S.4: As Attorney General a narrow focus on a matter can be considered an asset in a prosecutorial perspective. However, as a Minister of Justice this narrow mindedness is a definite liability. As Minister of Justice, Jody Wilson-Raybould should have sought a just resolution to the SNC-Lavelin affair. Forget about a Deferred Prosecution Agreement. Transfer the criminal charges to the persons who actually committed the crimes along with any persons who facilitated their actions. Would that not be just? As long as powerful people who commit crimes while hiding behind the skirt of a corporation are be able to walk away unscathed and let innocent people employed by that corporation suffer the consequences of their actions, Justice is not served.

P.S.5: I am also disappointed in Jane Philpott. In her letter of resignation she states that “It is a fundamental doctrine of the rule of law that our Attorney General should not be subjected to political pressure or interference regarding the exercise of her prosecutorial discretion in criminal cases.” Does she also believe that the Attorney General, or any cabinet minister for that matter, should categorically reject the idea of discussing her views and decisions with any highly qualified jurists? She also states that “I am firmly committed to our crucial platform priorities, especially: justice for Indigenous peoples; and implementing a plan to tackle the existential threat of climate change”. Does she not realize that her action may help a Conservative Government take power. Does she really believe that an Andrew Scheer government will have these priorities? She threw herself on her sword for a person who thought that her position as Minister of Indigenous Services was too far beneath her to accept such a position.

P.S.6: Andrew Scheer has been insisting that Jody Wilson-Raybould be recalled to testify further. If this happens perhaps the following questions should be asked of her:

• Why did you not communicate your decision concerning SNC-Lavelin in writing in conformity to the Rule of Law?

• Why did you not seek council with experienced jurists? And did you read or even consider the report prepared by your own department concerning this matter?

• As Minister of Justice did you not consider options to achieve a more just resolution to the situation?

• If you had accepted a cabinet post as Minister of Indigenous Services did you not realize what a difference you could have made in the lives of so many people?

• Did you realize the unintended consequences of your actions? Not only have you greatly damaged your party”s brand you have sullied the almost pristine reputation of Canada on the world stage. You have given fodder to the Chinese government who has detained two Canadians and sentenced one to death. You have diminished Canada's claim that Canada adheres to the Rule of Law. And perhaps, most importantly, you have increased a possibility of a Conservative Government being elected in the forthcoming election. Although the pace of change to conditions under which Indigenous peoples are subject to is tragically slow, progress is being made under the Liberal Government, in contrast to the inaction and even degradation of government relations with aboriginal peoples of Canada during of a decade of Conservative Government. Do you really thing things would be better under a Conservative Government? If so, I still have that bridge in Brooklyn I can sell you.
  

Here are links to copies of the actual emails I sent:

A Loss for Indigenous People - In Defense of Jstin Trueau and his Team

A Loss for Indigenous People -Postscripts

©Ray Phipps