Amid the spiralling SNC-Lavalin affair, the Liberal government, the party and their surrogates are trying to normalize the kind of aggressive interference with the attorney general’s independence that appears to have occurred. By “normalize,” I mean they are seeking to create an impression that nothing untoward happened in this instance. They want the idea to take root with the public that the continuous pressure that former justice minister and attorney general Jody Wilson-Raybould said she endured was acceptable.

If they succeed in their normalization strategy, the result will not just be a pass for having allegedly engaged in politically partisan pressure to divert the prosecution of a powerful corporation. It will also undermine core values that underpin our key institutions, including the concept of prosecutorial independence.

Consider six messages that the Liberals are using to normalize their behaviour in this unfolding scandal.

(1) Being pressured is part of any minister’s job.

The first tactic is to have people talk, as Clerk of the Privy Council Michael Wernick did before the Commons justice committee, about pressure being a feature of any minister’s life. Wernick chose to refer on multiple occasions to Wilson-Raybould as the minister of justice when he was discussing her functions as both attorney general (AG) and minister of justice. He generally spoke about how the pressure “to get it right” is something all ministers face, including the AG and minister of justice. Liberal MP Michael McLeod recently commented, in reference to Wilson-Raybould’s testimony to the committee, that all ministers face pressure to adopt positions.

The overall impression being left with Canadians is that a minister is a minister is a minister, and that politics naturally involves pressure. The result is to deliberately distract Canadians from understanding that the attorney general role is a unique position in our constitutional system and in cabinet.

(2) It’s all a matter of interpretation.

A common line now is that everything boils down to different perspectives. From the observation that Prime Minister Justin Trudeau sees it one way while Wilson-Raybould sees it another way, we arrive at a shrug of the shoulders and the utterance of something resembling “It’s all a matter of interpretation.”

From the fact of disagreement, one gets to a near-nihilistic idea that there is no one view better than the other. Wilson-Raybould spoke her truth. Trudeau, his former adviser Gerry Butts, Wernick and others have spoken or will speak their truth. How can we move beyond such a war of truths? Well, how about if we take notice of the existence of a meaningful consensus, among almost all observers with knowledge of the AG’s role in our constitutional system of government, that much if not all of the pressure described by the former AG was clearly inappropriate?

(3) Just let the Ethics Commissioner do his job.

Wernick and more than a few Liberals and surrogates are acting as if the Ethics Commissioner — who has announced he is examining the matter — has the mandate under the Conflict of Interest Act to deal with all aspects of the allegedly improper pressuring of an AG.

Many of these Liberals must surely be aware that the Act has a much higher threshold for wrongdoing than what is being alleged here. Public office holders must be seeking to further their own “private interests” or “improperly further” those of a third party. Previous commissioners such as Mary Dawson have taken the position that “private interest” basically means pecuniary (that is, financial) interest and that seeking political gain generally does not fall within the improper pursuit of “private interest.”

(4) You had a closed mind, so no wonder people kept hounding you.

Liberal MPs Ali Ehsassi and Randy Boissonault, during the justice committee meeting, pointed to federal guidelines for prosecutors that say that prosecutors should keep the merits of prosecuting an offence under continual observation up to trial (and indeed after trial starts). They seek to impose this principle upon the attorney general in the AG’s supervisory role over the decisions of the director of public prosecutions (DPP), who is the prosecutor here.

Never once, in over a decade since Parliament created the DPP position, has an attorney general interfered in a DPP’s determination in a specific ongoing case. The DPP is supposed to have a degree of arm’s-length independence from the AG.

Furthermore, the Criminal Code’s provisions for remediation agreements place the central decision-making authority on whether to prosecute a company in the hands of prosecutors. The only specified role for the attorney general is as a safeguard: the AG has to give consent to the prosecutors if they want to negotiate a remediation agreement rather than proceed with prosecution. If the prosecutors instead choose to prosecute (as in the SNC-Lavalin case), there is no special role for the AG. She or he would not be expected to treat that decision any differently from how the AG deals with notifications of all decisions to prosecute: with high deference to the prosecutors.

Wilson-Raybould correctly understood the proper relationship between herself and the DPP, between herself and the defendants, and between herself and her governmental colleagues.

The normalization effort here could have frightening consequences. Let’s imagine that an AG was vested with the same duty as a prosecutor: to be constantly open to not prosecuting. This would create a system where defendants — especially corporate defendants — could aggressively lobby political actors to in turn endlessly lobby the AG to interfere with a prosecutor’s decision. This would be a disaster of a justice system and eventually would end up gutting the rule of law in the criminal law sphere, especially given the resources and influence that large corporations can bring to bear on their efforts to secure a non-prosecution.

How many AGs would have the fortitude to resist a system of pressure institutionalized in this way, as Wilson-Raybould did?

(5) If things were so bad (or if you are being truthful), you would have resigned.

In another blame-shifting tactic, the Liberals have emphasized the fact Wilson-Raybould chose not to resign and indeed stayed on in cabinet for a period after being removed as AG.

She explained why she stayed on from September 2018 to January 2019, thinking — or at least hoping — she had successfully resisted the pressure around the SNC-Lavalin prosecution. She also said she would have resigned as veterans affairs minister if the new attorney general had issued a directive to the DPP to negotiate a remediation agreement with SNC-Lavalin.

On March 2 on CBC Radio, the last federal Liberal attorney general before Wilson-Raybould, Irwin Cotler, said he too had been inappropriately pressured but chose not to resign.

(6) If it was lawful, then what’s the problem?

The Liberals have embraced a discursive tactic that is dangerous for ethical conduct in public life if it becomes the norm. They have begun to argue that, because conduct was not (so far as we know) illegal let alone (so far as we know) criminal, it therefore falls within the bounds of proper or appropriate conduct.

Wernick said that no “inappropriate pressure” had been applied to Wilson-Raybould, and that the conversations with her constituted “lawful advocacy.” Wilson-Raybould said in testimony that, however inappropriate the actions of others were, she does not think they were unlawful.

But political morality in crucial areas of government conduct, even if not constituting law in the strictest sense, underpins many aspects of constitutionalism and the rule of law in our system. Equating legality with propriety, as the Liberals are doing, hollows out the importance of values and ethics. Indeed, we would do well to heed one of the main principles of the conflict of interest code for MPs:  namely, that they should “perform their official duties and functions and arrange their private affairs in a manner that bears the closest public scrutiny, an obligation that may not be fully discharged by simply acting within the law.”

Wilson-Raybould clearly understands that legality does not exhaust propriety. So too does her former cabinet colleague Jane Philpott, who explained her own resignation due to the SNC-Lavalin matter by noting, “I must abide by my core values, my ethical responsibilities and constitutional obligations. There can be a cost to acting on one’s principles, but there is a bigger cost to abandoning them.”

The communications machines and influence networks of the Liberals will strive to normalize what Jody Wilson-Raybould has condemned. If they succeed, the outcome will be not simply a weathering-the-storm political story, but rather something with lasting negative implications for our justice system as well as for our political institutions and culture.

Often enough, when persons or entities try to fend off a serious threat, they pay little regard to the damage done to others, to fundamental values or to the environment as a consequence of defending themselves at all costs. If the Liberals’ normalization strategy ends up working, their victory will have come at the expense of transforming the principles related to the attorney general’s independence, and indeed prosecutorial independence writ large, into scorched earth. We cannot allow that to happen.

Photo: Prime Minister Justin Trudeau arrives to a caucus meeting on Parliament Hill in Ottawa on Feb. 20, 2019. THE CANADIAN PRESS/Sean Kilpatrick

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Craig M. Scott
Craig Scott is a professor of law at Osgoode Hall Law School, York University. He served as the member of Parliament for Toronto-Danforth from 2012 to 2015, during which time he was the official opposition critic for democratic and parliamentary reform.

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