The SNC-Lavalin affair has unearthed the deeply conventional nature of cabinet and the Privy Council. And conventions have policy consequences.

Lost in all the noise surrounding the SNC-Lavalin affair is a broader question about the kind of political system Canadians want. Indeed, the attention accorded to committee hearings dealing with the often secretive, behind-the-scenes business of cabinet is an unprecedented development in Canadian political history, a country so often noted for its stolid approach to political crises. As such, many people have been shocked by the revelations alleging partisan political interference into the office of the attorney general. Has the SNC-Lavalin affair ushered in a new constitutional moment for Canada?

As more details emerge, testimony from the House of Commons Justice Committee has revealed the deeply conventional nature of much of the operation of cabinet and the broader Privy Council. Indeed, reference to the Shawcross doctrine is one example of a convention that aims to clarify the relationship between the attorney general and the cabinet.

But what exactly are constitutional conventions? Conventions are the extra-legal practices that inform the operation of our government. For instance, the role of the prime minister is seldom referred to in the Constitution Act 1867 and 1982, yet conventions inform how and when the prime minister is appointed or removed.

Emphasizing this aspect of conventions, the late Senator Eugene Forsey, one of Canada’s eminent constitutional experts, wrote dramatically of conventions as “political in their birth, political in their growth and decay, and political in their application and sanctions. In politics they live and move and have their being.”

Indeed, if we did not have conventions that informed the way government is conducted, an alien reading our written constitution would be forgiven for thinking we live under the polite dictatorship of the Crown, as there is hardly any substantive reference to the convention of responsible government, or of the role of the prime minister in the Constitution Act 1867 and 1982. In this way, then, constitutional conventions are never clear cut, and can often be highly ambiguous due to the flexibility built in to them and their unwritten nature.

This applies to the Shawcross doctrine. Sir Hartley Shawcross was attorney general in the Labour government of Clement Attlee during the Nuremberg Trials, and Attlee put him in the position of president of the Board of Trade. Questioned in Parliament in 1951 on the Attorney General’s discretionary powers, Shawcross said:

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be ​ put, and is not put, under pressure by his colleagues in the matter.

While one interpretation of the principle simply states that the decision to prosecute is at the discretion of the attorney general alone, it is easy to see the ambiguity and complexity at the heart of Shawcross’s comments.

Two contradictory interpretations of the doctrine have thus emerged during the SNC-Lavalin affair. One is that it is up to the attorney general alone to determine when there has been sufficient policy consideration in the lead-up to a decision to prosecute. The other is that the attorney general should reflect on the considerations of cabinet colleagues when freely coming to a decision. Both interpretations are correct according to the Shawcross doctrine.

Some have suggested that the current political crisis bears some resemblance to the Saturday Night Massacre in 1973, when US President Richard Nixon, in the heat of the Watergate proceedings, had two attorney generals resign as he pressured them to fire the lead prosecutor investigating the Watergate burglaries. Does this analogy hold?

In the American presidential division-of-powers system, political executives are not elected members of congress, and thus they have no obligation to represent an electoral district. There is a strict separation between the legislative and the executive branches, which, despite its other limitations, has the benefit of clearly outlining the chain of accountability. Indeed, such clear lines of accountability are lacking in the Westminster system and constitute its main drawback.

In our Westminster system, which is bilingual and a federation, ministers frequently wear many hats and are accountable to many different — sometimes contradictory — interests; political executives thus speak on behalf of the Crown yet they are also accountable to their local electoral district constituents, their regions, and the political program of their party, among other considerations. Despite their politically fraught nature, then, conventions are what make such a potentially contradictory system workable, in that they regularize processes. Reference to the Saturday Night Massacre in the SNC-Lavalin affair is therefore misleading, because the lines of accountability in the US presidential system are clearer and more explicit.

Constitutional conventions make our contradictory system workable, in that they regularize processes.

Others have maintained that a strict separation between law and politics is desirable, and the best way to achieve this within a Westminster system is by separating the role of the attorney general from that of the minister of justice. Without a major institutional overhaul, however, it is not entirely clear how separating the role of the attorney general from that of the justice minister would lead to better political processes or policy outcomes. Even in the UK, where this separation exists, the attorney general is still expected to be an elected member of Parliament backed by party affiliation. Moreover, while the UK attorney general sits in cabinet, the office is structurally subordinate to the office that is equivalent of the minister of justice, and the attorney general still reports to the prime minister.

For these reasons, Westminster systems will doubtlessly continue to see political considerations hovering around the office of the attorney general. In our system of responsible government, the executive requires the confidence of an elected majority in the House of Commons to govern. It might therefore be preferable to keep the current office free from crudely partisan consideration — but entirely purging important political institutions like the office of the attorney general of political decision-making might not be in our best interest. It is possible to be political while nevertheless maintaining the rule of law, as Shawcross did when prosecuting the Nazis at Nuremberg.

Constitutional conventions have policy consequences. And as Canadians make up their minds about the SNC-Lavalin affair, it is important to consider how each of these approaches regarding when and how the attorney general has ensured sufficient policy consideration for prosecutorial decisions could interface with the way in which our political institutions are organized. While all thoughtful Canadians undoubtedly take the rule of law seriously, there is no easy resolution of the tension between law and politics. Before we change our institutions and conventions, then, we should be sure that we are not simply trading one set of problems for another, thus recreating the conditions for another crisis like the SNC-Lavalin affair, albeit in new ways.

Photo: Shutterstock, by Art Babych.


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