[Canada] Canadian Politics Redux

[Barrister]

Viper, as BB says, it is a bit more complex than you have described.  The devil is definitely in the details but imagine a world in which government did not turn its mind to how criminal justice matters should be appropriately dealt with.  There is a line but it is not entirely clear whether anyone came close to crossing it.  If Trudeau had dealt with this more competently it would likely not even be an issue.  I think that is the point that is going to hurt him the most.  Every commentator I have read is essentially making the point - wtf is this guy doing.  And that plays on the old fears that, to quote Harper - he is just not ready.

Well, the original G&M piece made it quite clear that the line had been crossed.  That JWR was pressured into resolving the case, and was demoted when she didn't.

[crazy canuck]

Viper, as BB says, it is a bit more complex than you have described.  The devil is definitely in the details but imagine a world in which government did not turn its mind to how criminal justice matters should be appropriately dealt with.  There is a line but it is not entirely clear whether anyone came close to crossing it.  If Trudeau had dealt with this more competently it would likely not even be an issue.  I think that is the point that is going to hurt him the most.  Every commentator I have read is essentially making the point - wtf is this guy doing.  And that plays on the old fears that, to quote Harper - he is just not ready.

Well, the original G&M piece made it quite clear that the line had been crossed.  That JWR was pressured into resolving the case, and was demoted when she didn't.

Sure but that is a characterization that anonymous sources have made.  Even if entirely truthful (and lets assume the sources are) there is an open question as to whether what they perceived to be improper was in fact improper.   

[Barrister]

Liberals won't appoint a public inquiry, saying that the Justice Committee is seized with the issue.

In the mean time, the Liberal majority on the Justice Committee are shooting down most requests for the Justice Committee to interview important witnesses, like Gerald Butts.



And apparently JWR was the one who approached Trudeau about speaking to cabinet.  She had to wait two hours while cabinet debated whether to hear from her, before agreeing to do so.  No word on what JWR said other than she was "unapologetic".

[Barrister]

I see a news headline that Trudeau apologizes to JWR.  Oh, that's interesting I think!

But then I read the apology:

"I wasn't quick enough to condemn, in unequivocal terms, the comments and commentary and cartoons about her last week," he said. "They were absolutely unacceptable and I should have done it sooner."

He didn't apologize for anything he had done,  Heavens no!  He apologized for not denouncing what other people said about JWR soon enough.

https://www.cbc.ca/news/politics/wilson-raybould-snc-lavalin-trudeau-1.5025885

[crazy canuck]

If I put myself in the position of an able Liberal backbencher, I imagine my internal voice would be saying "OH God please make him stop"!

[viper37]

If Trudeau had dealt with this more competently it would likely not even be an issue.

that is what I mean: if this was all just a misunderstanding and the line wasn't crossed, he would have said so on day 1, and his advisers would not have scrambled to invent a new lie every day.

honest people don't change their stories all the time.

[crazy canuck]

If Trudeau had dealt with this more competently it would likely not even be an issue.

that is what I mean: if this was all just a misunderstanding and the line wasn't crossed, he would have said so on day 1, and his advisers would not have scrambled to invent a new lie every day.

honest people don't change their stories all the time.

No, we are saying different things.  To repeat, I would be surprised if much came of the conspiracy theory.

[Barrister]

It finally leaked!

https://www.theglobeandmail.com/politics/article-jody-wilson-raybould-tells-cabinet-why-she-would-not-intervene-in-snc/
(Paywalled, but here's as much text as I found somewhere else)

Former attorney-general Jody Wilson-Raybould told federal cabinet ministers she believed it was improper for officials in the Prime Minister's Office to press her to help SNC-Lavalin Group Inc. out of its legal difficulties, sources say...

On Tuesday, Ms. Wilson-Raybould privately outlined her concerns about the handling of the SNC-Lavalin prosecution to her former colleagues within the confidentiality of cabinet, freed from the bounds of solicitor-client privilege that have restricted her public statements so far.

According to a source with knowledge of the cabinet discussions, Ms. Wilson-Raybould said the director of the prosecution service rejected a negotiated settlement with SNC-Lavalin based on how the law applies to the company's case. The Liberal government had changed the Criminal Code to allow for deferred prosecutions in which a company admits wrongdoing and pays a fine, but avoids a trial. Under Canada's new deferred-prosecution agreement law, prosecutors are not allowed to consider national economic interests when deciding whether to settle with a company.

Once prosecutors decided in early September to move to trial, Ms. Wilson-Raybould told cabinet she felt it was wrong for anyone – including the Prime Minister, members of his staff and other government officials – to raise the issue with her, the source said. Another source added that Ms. Wilson-Raybould would not budge from her position at the cabinet meeting.

The Liberal source said government officials had also proposed an outside panel of legal experts to recommend a solution to the SNC-Lavalin issue, but Ms. Wilson-Raybould rejected the suggestion.

So the story finally fills out.  Independent PPSC Prosecutors make a decision not to proceed with a DPA.  Various people approach JWR about this decision - but the AG says that's improper.

I don't know if FWR is going to use the word "pressured" to describe what the PMO did, but of course the PMO denies that it was pressure.  But of course even Trudeau's PMO is smart enough not to spell things out so explicitly "drop the case against SNC or you're being demoted".

[Barrister]

Oh and by the way, the idea that this decision should be outsourced to some outside "legal experts", but you aren't going to find any bigger experts on prosecution than inside the PPSC.  Was the PMO trying to say that its own Director of Public Prosecutions was biased?

And the final shoe to drop (there may be others) is going to be what do the Libs ultimately do with the SNC case?  They can hope the courts solve it for them with SNC's own judicial review application of PPSC's decision not to allow the DPA, but honestly prosecutorial discretion is a real thing and is given a lot of respect by the courts (why is why it's so important that politicians don't mess around with it!).  So will the new AG give a written directive to allow the DPA, now with the attention of the nation on him?

[crazy canuck]

I see nothing there.  If in fact "Ms. Wilson-Raybould told cabinet she felt it was wrong for anyone – including the Prime Minister, members of his staff and other government officials – to raise the issue with her", without more she is simply wrong as a matter of law.  It is entirely appropriate for her to answer any concerns her cabinet colleagues had by explaining that national interest is not a factor the prosecutor takes into consideration.  But if she simply sat mute and only thought to herself that they were wrong (which seems likely by the descriptor "she felt") then that is on her.

Also, if she did simply sit mute, then one can understand whey a reasonable PM would want to shuffle her.  Her role was to advise and, if the hypothetical above is accurate, she failed to do so.

[Barrister]

Despite repeatedly telling the PMO that it was improper of them to even be raising the issue, they continued to raise the issue with her.  From Michael Wernick's testimony today:

Canada's top civil servant insists there was no inappropriate pressure on Jody Wilson-Raybould to override a decision to prosecute SNC-Lavalin, but says he warned her about the dire economic "consequences" of criminal proceedings.
In blunt testimony before the justice committee Thursday, Clerk of the Privy Council Michael Wernick said he called the then-justice minister and attorney general on Dec. 19, 2018 to discuss various issues — including the option of a remediation agreement that would serve as an alternative to prosecution for the Quebec-based global engineering company, which is facing bribery and fraud charges related to contracts in Libya.
During that call, Wernick said, he spoke of the implications of prosecuting the company for employees, suppliers and communities. He said he told Wilson-Raybould that the prime minister and "a lot of her colleagues" were anxious about what they were hearing and reading in business press — articles warning that the company could close down or move if criminal proceedings went ahead.

"I am quite sure the minister felt pressured to get it right, and part of my conversation with her on Dec. 19 was conveying context that there were a lot of people worried about what would happen ... the consequences not for her, the consequences for the workers, and the communities and the suppliers," he told MPs probing the scandal now engulfing the Liberal government.
Wernick insisted he did not cross any line in his exchanges with Wilson-Raybould.
"I can tell you with complete assurance that my view of those conversations is that they were within the boundaries of what's lawful and appropriate. I was informing the minister of context. She may have another view of the conversation, but that's something the ethics commissioner could sort out," he said.

https://www.cbc.ca/news/politics/lametti-justice-committee-snc-lavalin-1.5027617

[Barrister]

Here's a nice summary of what transpired (from a Conservative MP's Facebook page):

I would like to give everyone an update on what happened today at the Justice Committee.
Privy Council Clerk Michael Wernick appeared at the committee and his testimony contained a number of important new revelations, including:
He attended the meeting between Jody Wilson-Raybould and Prime Minister Justin Trudeau on Sept. 17, 2018
In that meeting, Ms. Wilson-Raybould informed the two of them that she would not overrule the Director of Public Prosecution's decision to proceed with SNC-Lavalin's criminal prosecution.
On Dec. 19, 2018, he met with the Prime Minister and other PMO officials to discuss SNC-Lavalin's prosecution.
He then contacted Ms. Wilson-Raybould to convey concerns of senior Liberals and attempt to influence her decision.
Mr. Wernick's testimony today confirms that the Prime Minister's Office launched a sustained and coordinated campaign to influence the former Attorney General.
According to Mr. Wernick's testimony, the Prime Minister and his department continued to pressure Ms. Wilson-Raybould even after she told the Prime Minister she would not overrule the decision to allow SNC's case to proceed to trial.
There were multiple attempts from the PMO and PCO to get Ms. Wilson-Raybould to reverse her position on SNC -Lavalin's criminal prosecution, including the Dec. 5 meeting with Gerald Butts and a Dec. 19 phone call with Mr. Wernick.
Mr. Wernick later told reporters that he believed Ms. Wilson-Raybould "felt pressure" to "get it right."
These inappropriate actions are a clear attempt to pressure Ms. Wilson-Raybould to change her mind. And when she refused to do so, the Prime Minister fired her.

And a fun Andrew Coyne column on the whole topic:

Andrew Coyne: We now know Wilson-Raybould was pressured. They just didn't call it that
How was she supposed to negotiate a remediation agreement, if the endpoint – that SNC-Lavalin was to be let off on all charges — had already been decided?


Andrew Coyne

February 21, 2019
6:49 PM EST

First she was not directed. Then she was not pressured. Now, courtesy of the clerk of the privy council, we learn she was not "inappropriately" pressured. The progression is familiar: when you cannot deny a thing is true, deny that it matters.
As we have been discovering in recent days, in fact all sorts of pressure was applied to the former attorney general, Jody Wilson-Raybould — by the prime minister, by his officials, by the clerk — to politicize the prosecution of SNC-Lavalin. They just didn't call it that, at least until now.
Leave aside the legal and ethical considerations. I'm just interested in how they thought this would work. Suppose she had bowed to the "appropriate pressure" of the prime minister and his people and ordered the director of public prosecutions to drop all charges against SNC-Lavalin and negotiate a remediation agreement in their place.
What would she, and they, have done when the DPP informed her this was not lawful, as the company had not met the conditions the law requires for her to enter such negotiations, having neither voluntarily disclosed its alleged wrongdoing, nor admitted corporate responsibility for it, nor made reparations to the people it had allegedly defrauded?
Or when the DPP pointed out that the professed reason for SNC-Lavalin to be granted such leniency, the jobs that would allegedly be lost in Quebec, is expressly precluded by the same law? Or when she resigned rather than carry out an order she considered unlawful?

Did they not think this would cause something of, I don't know, a stir? Did anyone think this through?

Suppose the DPP had not resigned, accepting instead this unprecedented assault on her prosecutorial independence, not to say her professional judgement. How was she supposed to negotiate a remediation agreement, if the endpoint – that SNC-Lavalin was to be let off on all charges — had already been decided? What bargaining leverage would she have?
And how would anyone in government have explained all this when, as the attorney general is legally obliged to do whenever she gives instructions to the DPP regarding the "initiation or conduct" of a prosecution (assuming this even applies to the present situation), she made the order public?
What reasons was she supposed to give? "I am overturning the prosecutor's decision to proceed with charges of fraud and corruption against SNC-Lavalin because it will cost jobs in a province where we need to win seats, in an election year?" Did they not think this would cause something of, I don't know, a stir? Did anyone think this through?
Or never mind the public, or the prosecutor: how did they think they were going to explain it to a judge, whose consent is also legally required for any remediation agreement?
But then it hit me. The answer, surely, is for the attorney general to talk to the judge. Or maybe the prime minister should, or one of his people. Not to direct him, of course: that would be wrong. But just to explain the context, if you will.
Surely we are not going to allow them to be sacrificed on the altar of a narrow and dogmatic interpretation of what is, let us remember, a mere convention?

The policy objective, after all, is to spare SNC-Lavalin from being convicted of a crime, owing to the serious distruption to its business model that would result if, merely because it had a history of bribing people to win public contracts, it were to be prevented from bidding on public contracts. Does it really matter, in pursuit of that overriding objective, whose independence has to take a hit: prosecutorial or judicial?
I realize this suggestion will shock some people. Probably the same people were shocked when the allegation first surfaced that the prime minister's people had tried to get the attorney general to interfere in the prosecution of a company that had given hundreds of thousands of dollars, legally and illegally, to the Liberal Party.
But over time, the mind adjusts. Subtler voices came to the fore, explaining why the pressure the prime minister's officials were at that time still denying was in fact entirely proper, an elegant and sophisticated solution to a difficult problem. Why shouldn't a government elected with the support of 38 per cent of the people be able to have the prosecutorial decision it desires, and be accountable for it? Why, it would be an affront to democratic accountability not to permit it.
There are jobs at stake, after all, thousands of them, many in swing ridings. Surely we are not going to allow them to be sacrificed on the altar of a narrow and dogmatic interpretation of what is, let us remember, a mere convention? An important one, of course, don't get me wrong. But surely we do not have to be such absolutists about it. Do we really want to bar politicians from talking to one another? Or from making representations to public officials on a matter of public interest?

And if that logic justifies infringing upon the independence of the attorney general, and through her that of the director of public prosecutions, why should it not also extend to the judge? A company's life is at stake. Now is not the time to get hung up on niceties like which officer of a court a prime minister can or cannot call.
Is there a "taboo" on politicians attempting to influence judges? There was once a taboo on prime ministers interfering with prosecutions, too. But the minute you start thinking about it — provided you do not think too much longer than that — it goes away. Whether the charges are dropped by the prosecutor, or thrown out by the judge, it's all the same. The point is that they should not result in a conviction.
Or perhaps the government could simply amend the law to eliminate the requirement for a judge's consent. For that matter, it could remove the provision excluding economic impact as a factor in the prosecutor's judgment. Or it could overturn the ban on companies convicted of bribery and other crimes bidding on federal contracts.
If it was possible to draft a whole new law to help SNC-Lavalin get off on criminal charges, even after those charges had been laid — and, when the prosecutor refused to comply, to overrule the prosecutor — it is surely possible to make whatever changes to the law the company might need. No doubt it has a few suggestions.

https://nationalpost.com/news/canada/andrew-coyne-we-now-know-wilson-raybould-was-pressured-they-just-didnt-call-it-that?fbclid=IwAR2e1NJch_NB39jy4811sdcZax7GILL6j-MjFvQODPe3PpwMpSHy2Fs3VTI

[viper37]

Was the PMO trying to say that its own Director of Public Prosecutions was biased?

No, I think he was saying "There is a Deep State plot working against me".

So will the new AG give a written directive to allow the DPA, now with the attention of the nation on him?

that would be very, very risky, imho, even for Justin the Beautiful.

[viper37]

Here's a nice summary of what transpired (from a Conservative MP's Facebook page):

https://nationalpost.com/news/canada/andrew-coyne-we-now-know-wilson-raybould-was-pressured-they-just-didnt-call-it-that?fbclid=IwAR2e1NJch_NB39jy4811sdcZax7GILL6j-MjFvQODPe3PpwMpSHy2Fs3VTI

Although the company is on trial for a corruption case in Lybia, it may not have made a lot of news in English Canada, but SCN was also accused, well, it's former CEO and some high executives of corruption for a huge hospital contract in Montreal.  At least 2 executives have seen their charges dropped due undue delays in prosecution. 

The might be another one of the hook now soon.  The prosecution and CRA are trying very hard to prevent him from moving all of his financial assets outside of the country, so that might count as a delay toward his criminal trial, I don't know.

I have a sympathetic ear to keep our headquarters here, especially in Quebec, because, well... anyway, because.

I'm willing to look at what a govt could generally do to improve a business climate, or help a company transition toward a Quebec/Canada based buyer when the original owner wants to retire, but frankly, I am not in the least sympathetic toward fraud&corruption.

If I so much cheat by an hour on overtime dues to my employees, I risk being barred from public contracts too.
I just find this so much worst, that imho, what they deserved is to see the name disapear and the assets sold to another entity.

Really, if a corrupt company deserves a second chance because its important to preserve our jobs here... well, fine.  Let's preserve the job.  Let's force nationalize the company and not indemnize any shareholder who was on the board while this happenned, or who was in a top executive position.

If we can't punish a company because it's too big too move, we just invite another company to do the same.  What's the worst that can happen?  1 year sentence inside a 25M$ house?  Sure, I'll take it.

[crazy canuck]

I think the Conservatives may be overplaying their hand and missing the real chance here.  If the worst this gets is that the Clerk of the Privy Council called the Minister to express a view about the benefits of a prosecution agreement then this really will be much ado about nothing.  Coyne carefully avoids whether any of this was improper at the beginning of his piece "Leave aside the legal and ethical considerations" but then makes a lot of comments based on the assumption something improper did occur. 


If some evidence of wrongdoing is revealed let me know.