Building photo by Sujit Sivanand, CC-by-3.0. Jody Willson-Raybould photo by Erich Saide, CC-by-sa-3.0.

Explain it like I’m not partisan: SNC Lavalin

TL;DR The Prime Minister’s Office and the Clerk of the Privy Council discussed an ongoing legal case involving SNC Lavalin with the Attorney General on multiple occasions, and asked her to consider a particular kind of plea deal. She said no. The Attorney General was later shuffled out of the Department of Justice to become the Minister of Veterans Affairs. She says the discussions were inappropriate — the PMO should not try to direct public prosecutions – and being shuffled was punishment for not playing along. The Prime Minister says the discussions were perfectly reasonable – they merely wanted to ensure the Attorney General had carefully considered all options – and being shuffled was the result of Scott Brison’s unrelated resignation from cabinet.

You could be forgiven for thinking that the SNC Lavalin affair is about who is, and who is a not a real feminist — or, perhaps, that the SNC Lavalin affair is about indigenous reconciliation, caucus membership, or solicitor-client privilege. These subjects have received a lot of coverage in the media and on Twitter, but they are not the central issues, and discussions around them are dominated by politics and partisan spin. Quelle surprise.

There are important, non-partisan issues at the heart of the SNC Lavalin affair. But first, here’s a quick recap:

  • SNC Lavalin does bad things.
  • SNC Lavalin gets caught.
  • The Department of Justice charges SNC Lavalin with fraud and corruption.
  • SNC Lavalin tries to get a special deal.
  • The Department of Justice says “No way!”
  • The Prime Minister’s Office (PMO) says “Yes way?”
  • Then minister of justice Jody Wilson-Raybould says “No way, and stop pressuring me.”
  • The Clerk of the Privy Council says “The Prime Minister really really wants ‘yes way’.”
  • During a cabinet shuffle, the Prime Minster moves Jody Wilson-Raybould out of Justice.
  • The Globe and Mail writes a story and all hell breaks loose. 

That’s the scandal. Of course, not everyone agrees that what happened was, in fact, scandalous.

Corporate corruption

Reasonable people often genuinely disagree about important issues. Reasonable people do NOT disagree that SNC Lavalin has a problem with corruption. The company allegedly bribed Muammar Gaddafi’s son with millions of dollars – and prostitutes. They’ve bribed hospital administrators in Montreal. They tried to buy a bridge contract in Bangladesh. The World Bank maintains a black list of companies that it considers too corrupt to to business with. Of the 117 Canadians companies on that list, 115 are SNC Lavalin or its subsidiaries

Because of all this bad behaviour, the company now faces fraud and corruption charges. If convicted, they could be banned from all government contracts for 10 years. Not surprisingly, SNC Lavalin has done its best to avoid this outcome. The company lobbied the government heavily for years to create a new legal tool called a Deferred Prosecution Agreement (DPA). In essence, a DPA would allow SNC Lavalin to take some responsibility for their crimes — paying fines — while avoiding the 10-year ban on government contracts. All that lobbying paid off, as the government quietly introduced DPAs in a 2018 omnibus bill. Unfortunately for SNC Lavalin, the public prosecutors trying their case were not interested in the new get-out-of-jail-free-ish card, and refused to offer the company a DPA.

Jobs and the economy

If SNC Lavalin is so bad (it is… allegedly), why would the PMO go to all the trouble of creating a new sentencing option and (allegedly) pressure the Attorney General to use it? Why not nail SNC Lavalin to the wall? There are two possible answers to that question:

  1. SNC Lavalin employs a lot of people (over 50,000 worldwide and almost 9,000 in Canada). Founded in Quebec, the company has operated there for over 100 years and Quebec’s pension fund owns 20 per cent of SNC Lavalin shares. A ban on government contracts would likely result in significant job losses and could hurt the national and Quebec economies.
  2. SNC Lavalin is a Quebec company, loaded with ex-politicians and ex-bureaucrats and Justin Trudeau just wants to help out his buddies and protect votes in his home province.

So which one is it? Anyone who pretends it’s not a mixture of both is full of something Michelle Rempel recently called Justin Trudeau on Twitter.

One of the joys of Twitter: grown-ups publicly calling each other pieces of S#@!T

Jobs and the economy really do matter, and the government really is supposed to consider them. Also, politicians care about votes, and donations, and have their own personal biases – all of which is both predictable and OK. Is it possible that the PMO’s efforts to promote a Deferred Prosecution Agreement were mostly justified to protect hard working Canadians from losing their jobs? Yes. Is it possible the PMO’s efforts were mostly misguided, cynical and grossly self-serving? Yes — that’s possible too. Is this what determines whether the SNC Lavalin affair is big scandal or a lot of hot air? No (although it might affect who you like and believe).

Prosecutorial independence

Public prosecutions in Canada are supposed to be independent. Because politicians will always be affected by partisan concerns, our system has been designed to protect against undue political influence. It turns out that the system might not be designed well enough.

Before 2006, public prosecutions in Canada were handled by the Federal Prosecution Service (FPS) within the Department of Justice. However the Minister of Justice is a politician, a member of cabinet, and someone appointed by the prime minister. Obviously, this could lead to a conflict of interest.

So in 2006, the Public Prosecution Service of Canada (PPSC) was created. The PPSC is an independent organization which reports to the Attorney General, the government’s chief legal advisor.

There’s a problem: The minister of justice and the attorney general are the same person. Seriously. The minister of justice, a member of cabinet and part of the messy, combative, partisan business of running the government is also the attorney general, an independent, impartial overseer of justice. The only good thing about this arrangement is that the combined position is know by the ultra-cool acronym, “MoJAG”. Sure, separating the minster of justice from attorney general would make complete sense, but…. MoJAG!

The heart of the scandal

MoJAG! is allowed to intervene in public prosecutions that raise important questions or may have important implications (all instructions have to be in writing and made public). The prime minister is allowed to discuss politics and policy with MoJAG! — they can even discuss public prosecutions. But the prime minster is not allowed to tell MoJAG! what to do on a specific case, regardless of the PM’s motives. And this is the heart of the SNC Lavalin scandal — Jody Wilson-Raybould says the PMO tried to do just that, and the Prime Minister says, “Naaaahh!”

So how do we know when a politician is doing their duty to safeguard the public interest, having appropriate discussions with the attorney general about how to achieve the best results, versus when they’ve stepped over the line? Good question.

Our current approach is a protracted political scandal that dominates the news, leads to several high profile resignations, and brings out the absolute complete total worst in politicians and pundits. Many (if not all) of the tweets and columns you read will tell you quite confidently where the fault lies — making broad assumptions about character, motive, believability, and legalese the authors know little about. The more confident they sound, the less you should trust them.

The ultimate test of the prime minister’s behaviour would be an election — we’ll have one of those soon enough.

Or maybe we should change the system. Trudeau has said he’ll consider separating the roles of minister of justice and attorney general. This is no doubt a bit of damage control on his part, but it could also be a good move. Future prime ministers wouldn’t have the same opportunity to meet or influence a truly independent attorney general, nor could they “shuffle” the attorney general into a different cabinet post.

There are several things that will not help to resolve the SNC Lavalin affair. For starters, Trudeau may or may not be a good feminist. Or a fake feminist. It doesn’t — in any way — change whether or not he acted inappropriately (nor can we tell from this one incident). He may or may not be a piece of S#@!T — interesting to debate, perhaps, but still not relevant. And it doesn’t matter whether or not Trudeau removes Jody Wilson-Raybould and her ally Jane Philpott from Caucus.

Hold up!

It turns out that removing Philpott and Wilson-Raybould does matter. 

In 2014, Parliament passed the Reform Act, which was designed in part to take power back from party leaders and give it to MPs. It set several conditions on how and when an MP can be removed from caucus — most notably, it requires a majority vote by fellow caucus members in a ballot. The act also stipulate that after each election, party caucuses must hold a vote to determine, by simple majority, whether or not to adopt these new caucus rules. Those votes have to be recorded, and reported to the Speaker of the House of Commons.

The Liberal caucus didn’t hold a vote.

Read Michael Chong’s full thread – rational, and strangely short on swear words – here.

Does the prime minister still have the authority to remove MPs from caucus? That’s hard to say. Did the Liberal caucus vote on whether to remove Philpott and Raybould-Wilson? We wouldn’t know — caucus is secret. Is there anything Philpott, Raybould-Wilson, or anyone else can do about it? Well… probably not.

Penalties for not holding the required caucus vote can only come from the House of Commons, and the Liberals hold a majority. That’s even better than a Deferred Prosecution Agreement.