[Canada] Canadian Politics Redux

[crazy canuck]

Holy crap! When I asked a direct question about whether his office interfered for political purposes the prime minister didn't deny it but deflected the question

[Barrister]

Andrew Coyne: It was Wilson-Raybould's decision to make, as long as she decided it their way
There's a way to sort this out: subpoena all communication on the subject between the players named. Sorry — the Liberal majority voted not to do so

Andrew Coyne
March 6, 2019
8:56 PM EST

More than once in the course of his testimony to the Commons justice committee Gerald Butts said that he was not there to call anyone names or to cast aspersions on the character of Jody Wilson-Raybould.

Which is why the prime minister's former principal secretary confined himself to depicting her as sloppy, closed-minded and unco-operative, while heavily implying the former minister of justice and attorney general of Canada was a serial fabulist who said nothing to anyone about attempts to interfere with her authority over criminal prosecutions until after she was shuffled out of her "dream job" in January. Otherwise he might have gotten really nasty.

And yet he offered little that contradicted what she had earlier told the committee — that she was pressured to overrule the decision of the director of public prosecutions to proceed with charges of fraud and corruption against SNC-Lavalin, rather than to offer it the remediation agreement it had sought.

To be sure, on the specific charge against him, that he had told her chief of staff in a meeting on Dec. 18 that "there's no solution that doesn't involve some interference," he had "a very different recollection." Variations on that theme were to be heard later from the clerk of the privy council, Michael Wernick, who had "no recollection" of a variety of statements attributed to him — that SNC-Lavalin would move its headquarters from Montreal if it did not get its way, or that something unfortunate might happen to her career if she kept crossing the prime minister.

But for the most part the strategy appeared to be unchanged: to blur important distinctions and focus on irrelevant questions; to confuse the obvious, that two people might have conflicting accounts of the same event, with the insane, that it neither happened nor did not happen; and otherwise to rely on the public's hazy grasp of the legal principles involved to see them through.

The emphasis of Butts's testimony was that the sustained and mounting pressure the former attorney general said she was under — from ministers, political staff, civil servants and the prime minister himself — was not really pressure at all. Or if it was, it was merely pressure to seek an outside legal opinion on the matter, perhaps from a former Supreme Court justice.

Various reasons were presented as to why this was justified. Wilson-Raybould had taken only 12 days to arrive at her decision not to overrule the DPP. The law permitting prosecutors to negotiate remediation agreements was "new," having only been passed (in response to years of lobbying by SNC-Lavalin) earlier that year. Decisions on prosecutions are never final, but must be constantly reassessed in light of fresh evidence. And, of course, those 9,000 SNC-Lavalin jobs that were supposedly at stake.

All of these may (or may not) be true. They're just not anyone's business but the attorney general's, and the DPP's. It is not relevant, as a matter of law, what the prime minister, or Butts, or anyone else outside the attorney general's office, thinks about Wilson-Raybould's decision-making process, or the new law, or what fresh evidence there might be. Those are considerations exclusively for the DPP, or in exceptional circumstances, the attorney general.

Jody Wilson-Raybould speaks with reporters after testifying in front of the justice committee in Ottawa, Feb. 27, 2019. Adrian Wyld/The Canadian Press
Just so, she was told: the decision was hers and hers alone to make. She was the "final decision-maker." Only the decision was also "never final." She could make it, that is, but she would have everyone from the prime minister on down coming back to her again and again — not because there was any fresh evidence, but just because they could — all the while implicitly questioning her judgment, in the sly form of that repeated suggestion that she seek an outside legal opinion.

This last is a distraction. The attorney general has available to her all the legal advice she requires. The only point of demanding she seek a second opinion was because they did not like the first. In any case, whether to seek outside advice is, again, the attorney general's decision to make, in the same way as it is her choice whether to seek the advice of her colleagues — as opposed to the unsolicited advice that Butts, Wernick and others were pressing upon her.

Ah, but if she felt this was interference, Butts wondered aloud, why didn't she tell anyone? If she had made up her mind, why didn't she say anything?

According to her testimony, she did: to the prime minister, at their Sept. 17 meeting ("I told him that I had done my due diligence and made up my mind on SNC"); to the clerk, at the same meeting; to the finance minister on Sept. 19 ("I told him that engagements from his office to mine on SNC had to stop — that they were inappropriate"); to Matthieu Bouchard and Elder Marques, officials in the PMO, on Nov. 22 ("I said NO. My mind had been made up and they needed to stop – enough"); and to Butts himself, on Dec. 5 ("I needed everyone to stop talking to me about SNC as I had made up my mind and the engagements were inappropriate").

Yet Butts told the committee he only learned that she considered her decision final during her testimony before the committee last week. Not only did he not recall her telling him, but neither the prime minister nor the clerk nor the finance minister nor the two PMO officials who reported to him breathed a word. Or was the problem, as he said at another point, that she did not tell the prime minister "in writing"?

Well, there's one way to sort this out: subpoena all emails, texts and other communication on the subject between the players named. Sorry — the Liberal majority on the committee voted not to do so. OK, then invite Wilson-Raybould back to testify, as Wernick was, and this time let her speak to the conversations surrounding her demotion from Justice — as Butts did at some length. No again, said the Liberal majority. Fine, well at least let's hear from some of the other players, starting with Bouchard and Marques. They are as yet not on the witness list.

On the other hand, the prime minister is reported to be weighing whether to make a statement of contrition. I suppose that will have to suffice.

https://nationalpost.com/opinion/andrew-coyne-it-was-wilson-rayboulds-decision-to-make-as-long-as-she-decided-it-their-way

[crazy canuck]

The one thing I will agree with Coyne on is there are definitely two very different versions of events that need to be sorted out.  The PMs version today undercuts what Butts carefully said yesterday. On the whole I am now more inclined to accept the former minister's version of events where her evidence differs from that of Butts and the answers from the PM this morning.  Trudeau essentially admitted to political interference during his answers to the press.  When asked if his staff in the PMO exerted pressure for political purposes his answer was something to the effect of "many things were discussed".

Now, that might have been a neophyte well out of his depth answering a question with the wrong set of talking points.  But if that is the explanation, is it any better?

[Barrister]

Hey - the Public Prosecution Service of Canada is now on Twitter!  First post was on March 6, their most recent (and third ever) Tweet:

Prosecutorial independence is key to our mandate. Our prosecutors must be objective, independent and dispassionate, as well as free from improper influence—including political influence. http://ow.ly/hNc450mDBSx

https://twitter.com/PPSC_SPPC

[dps]

Holy crap! When I asked a direct question about whether his office interfered for political purposes the prime minister didn’t deny it but deflected the question

Wait, you're a member of the press and got to ask Trudeau a question?

[crazy canuck]

Holy crap! When I asked a direct question about whether his office interfered for political purposes the prime minister didn't deny it but deflected the question

Wait, you're a member of the press and got to ask Trudeau a question?

Whoops. Freudian slip

[viper37]

Gerry Butts was not under oath.  Liberals on the committee voted that down.

I missed that.
Well, even worst.

[Barrister]

In related news, the Federal Court struck SNC Lavelin's application for judicial review of the decision of the DPP not to offer a remediation agreement to SNC Lavelin, holding that this was a core area of prosecutorial discretion and not reviewable absent an abuse of process.

http://www.fct-cf.gc.ca/rss/T-1843-18%20Decision%2020190308%20FINAL(E).pdf

It's interesting that although this is a very thorough decision, it is actually a decision on an application by the DPP to strike - this never even proceeded to a full judicial review hearing.

I'm only partially through the judgment, but I did find this interesting:

[11] The Government engaged in a public consultation process in November and
December 2017 to seek the input of interested stakeholders regarding the advantages,
disadvantages and other implications of a Canadian model for deferred prosecution agreements.
Amendments to the Criminal Code were introduced in March 2018 as part of the BIA 2018. The
BIA 2018 was passed on June 21, 2018 and the Criminal Code amendments, now contained in
Part XXII.1, were proclaimed in force on September 21, 2018.
C. The Applicants' Provision of Information

[12] The Applicants note that they made overtures to the DPP regarding their interest in and
suitability for a remediation agreement based on the proposed legislation as early as April 2018.
Page: 6
The Applicants provided extensive information to the DPP regarding how they met the relevant
criteria. The Applicants continued to make submissions to the DPP following the enactment of
Part XXII.1, including following receipt of an indication from the DPP on September 4, 2018
that she would not invite the Applicants to negotiate a remediation agreement.

[13] The Applicants note that they provided an extensive amount of information by way of
letters and meetings to demonstrate how their actions reflected the objectives and criteria for a
remediation agreement. This included information about efforts made since 2012 to implement,
monitor and independently evaluate an ethics and compliance program; anti-corruption training
for all employees; the turn-over of senior management and the Board of Directors; the dismissal
or severance of senior officers associated with the questionable activities; and the serious impact
of a continuing prosecution, a lengthy trial and the possible conviction on employees, pensioners,
and other stakeholders, including that SNC-Lavalin could be barred from bidding on contracts.
The Applicants also note that they advised the DPP of their willingness to provide further
information, if they were invited to negotiate a remediation agreement, regarding how they
would meet the objectives of a remediation agreement, for example, through the negotiations of
reparations to victims, proportionate penalties and measures to denounce the alleged
wrongdoing. The information was provided on the understanding that it was confidential and
protected by privilege. The Applicants submit that this evidence should be considered on the
Application for Judicial Review.

Which is just more evidence, as if it is really needed, that the entire remediation agreement scheme seems to have been brought into place in order to specifically benefit SNC Lavelin.  The remediation agreement process was introduced in March, and within weeks in April SNC Lavelin was making overtures.  The legislation allowing remediation agreements wasn't actually passed into law until June, and only came into force in September.

This also reminds people that the real decision about remediation agreements was made by the DPP, who spent months on it before sending a letter saying "no".  Wilson-Raybould's role was only to review that decision, which is why she could do so relatively quickly.



It also highlights a topic I've gone back and forth on personally as a Prosecutor - that prosecutors, in the exercise of prosecutorial discretion do not offer an explanation for their decision.  You can see the benefit here - SNC wants to attack that use of discretion, but they're not given any ammunition.  They can't attack the reasoning because there isn't any provided.

But it's also unsatisfying in a way, because SNC (and Canada at large) don't know why SNC is being excluded.

[Oexmelin]

Lavalin.

[Barrister]

Lavalin.

Noted.  I won't go back to correct, but will keep that in mind in future.

[Grey Fox]

It's a company born of the fusion between SNC & Lavalin.  Why is 1 ok but not the other?

[Barrister]

It's a company born of the fusion between SNC & Lavalin.  Why is 1 ok but not the other?

I was mis-spelling it as Lavelin.

[Grey Fox]

Oh.

[crazy canuck]

It is an interesting case from an administrative law point of view.  I will be interested to see what the Federal Court of Appeal decides.  I am not entirely sure the lower court is right that the discretion being exercised here is a common law rather than a statutory discretion.  I think the other side of that argument as some merit and given the high standard for striking at this preliminary stage there is a chance the FCA allows the Judicial Review to proceed.

The decision also makes me more confused about the position taken by the former AG that she made a "decision" and that her decision was "final".  The analysis provided by the Court, and the cornerstone of the reasons for striking the JR, is that it was a decision of the prosecutor.  The only time the AG makes a decision is if the prosecutor determines that an invitation to enter into an agreement should be extended to the accused.  On my reading of the court's reasons, it is only when that happens that the AG then must consider whether to approve the prosecutor's recommendation.

Here is the thing.  If the prosecutor did not determine it was appropriate, what decision did the AG make?

It is possible the prosecutor decided it was appropriate, wrote a memo recommending to the minister, which the minister then did not approve.  As a result the prosecutor would have to then advise the accused that no invitation would be extended.

The alternative is that the AG herself interfered with prosecutorial discretion before the recommendation came to her.

edit:  I suppose there is another alternative that that AG might override the prosecutor's decision, but that part of the legislation was not referred to in the decision.

[Barrister]

You know, just spitballing here, on why the DPP would not allow the remediation agreement for SNC.  You may recall that PPSC has actually not been very successful in prosecuting the individual officials of SNC, and had several charges against those officials stayed.  In that case you might think that PPSC would want to enter into a face-saving remediation agreement.

Here are the criteria:

715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:

(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;

(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;

(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and

(d) the Attorney General has consented to the negotiation of the agreement.

Marginal note:Factors to consider

(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors:

(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;

(b) the nature and gravity of the act or omission and its impact on any victim;

(c) the degree of involvement of senior officers of the organization in the act or omission;

(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;

(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;

(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;

(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;

(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and

(i) any other factor that the prosecutor considers relevant.

Marginal note:Factors not to consider

(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.

Okay, so we know that PPSC can't consider the national economic interest (i.e. jobs).  But the new management at SNC has been all about putting an ethical face on the company.  It surely would do just about anything the prosecutors have asked.

I wonder if the problem is this: the allegation is that SNC gave multi-million dollar bribes to various Libyan officials.  Libya under Gadaffhi was a state sponsor of terror.  Is the DPP considering this offence to be done in association with a terrorist group?