The observation that all politics is local is attributed to Tip O’Neill, Speaker of the U.S. House of Representatives in the Reagan era, but it could well be applied to Canada, and especially to the recent election. In the absence of an overriding national issue, regional and local factors played a large role in determining the outcome. An unpopular Conservative provincial government in Ontario dragged down the federal Conservative campaign in the province. The controversy over Quebec’s secularism law helped propel the Bloc Québécois to renewed prominence, but had no resonance in British Columbia. Strong showings by the Green Party in recent provincial elections in New Brunswick and Prince Edward Island carried over into the federal election. Issues affecting the energy industry in Alberta and Saskatchewan turned an already strong Conservative presence in those provinces into a virtual monopoly. Within regions, there were differences between urban and rural areas in Ontario, between the interior and the coast in B.C., between Manitoba and the rest of the Prairies, and between the various provinces in Atlantic Canada.

The story of this election is the story of how it played out in each of Canada’s five regions, as told in the reports in these pages.

From Atlantic Canada: click to read Liberal Resilience in a Hyperlocal Region, by Patrick Webber.

From Ontario: click to read Andrew Scheer Couldn’t Shake Doug Ford, by Paul Barber.

From Quebec: click to read The Return of the Bloc is a Mandate for Autonomy, not Sovereignty, by Eric Montigny.

From The Prairies: click to read Justin Trudeau’s Enduring Challenge, by Royce Coop.

And from British Columbia: click to read The Green Breakthrough That Didn’t Happen, by John Richards.

British Columbia: Western, But With a Difference

by Richard Johnston

Richard Johnston is the Canada Research Chair in Public Opinion, Elections, and Representation at the University of British Columbia in Vancouver. His most recent book is The Canadian Party System: An Analytic History (UBC Press, 2017).

Setting the table

In the 21st century, British Columbia has been a major battleground, with a multiparty twist. At first glance, B.C. leans toward the western model, with the Conservatives the strongest party, the Liberals the weakest one, and the NDP usually in second place. But the Conservatives are weaker frontrunners and the Liberals stronger in third place than elsewhere in the west. Putting this together makes all three parties regularly competitive, and the number of three-way fights adds a random element.

B.C.’s internal geography is such that it has not one party system but four. Each of the three Canada-wide parties has strength in more than one region, but the relative competitive balance varies considerably across the landscape, as does the closeness of the battle. Bringing the campaign to B.C. does not mean bringing it to the entire province; most of the action is within an hour’s drive of the main airport. Figure 1 portrays these regions for 21st-century elections.

The basically self-defining region of Vancouver Island¹ is the very heartland of the Canadian left and has been for more than a century. This partly reflects a history of capital-intensive primary industry and fractious labour-management relations. Increasingly important are unionized public employees, a key group in the Victoria-area ridings. As a result, the NDP is the dominant party. Not even its Canada-wide collapse in 2015 altered this fact. Its chief rival is the Conservative Party, which benefits from the island’s large retirement population. The Liberals’ 2015 surge made them competitive in the region, but barely so and probably not on a sustainable basis.²

In contrast, the Interior and North region is a Conservative stronghold.³ Most years, Conservative dominance in this enormous land mass has been as one-sided as in the prairie provinces, and with much the same political tone. The Conservatives lost considerable ground in the 2015 popular vote. The Liberals gained at the Conservatives’ expense but only enough to capture one seat. The NDP is the usual second-place party in the region, holding seats in ridings that share the labour-management history of Vancouver Island, but it is a distant second. This is the least competitive region in the province.

Together, Vancouver Island and Interior and North hold 20 of the province’s 42 seats. The other 22 are in Metro Vancouver. This area has a legacy of activism – organized labour, antipoverty action and environmentalism. More recently, it has pushed the margin on harm reduction, housing and sexual orientation. And it is Canada’s standard-setter for urban awareness of First Nations issues, and second only to Toronto for immigrant ethnic diversity. On these issues the City of Vancouver, in particular, leans left. But there is also a considerable reserve of social conservatism in the ethnic communities.

Metro Vancouver is arguably two regions, with the Fraser River dividing Metro North from Metro South. In Metro South, the Conservatives are a major presence, the dominant one for most of this century. The other two parties compete for second place, although 2015 tilted the balance decisively toward the Liberals. Metro North is the Conservatives’ weakest region. Even so, they are routinely competitive, as are the other two parties. All three parties, then, have reason for hope in the metropolitan regions. The fate of each depends not just on its own strength but on the relative balance between the other two.

Prospects for 2019

In recent polls, B.C. looks like Canada in microcosm. Even before the SNC-Lavalin affair, the Liberals seemed likely to lose ground, mostly as a result of the Conservatives narrowing the gap. The weakness of the NDP – reflecting the weakness of Jagmeet Singh – was probably good news for the Liberals, but this was offset by gains by the Greens. Then came SNC, which for B.C. has dual resonance. First, there are the old tropes about Quebec. These may carry less virulence in B.C. than elsewhere, and when it comes to pipelines the Quebec and B.C. governments are on the same side. But the central character in the affair, Jody Wilson-Raybould, embodied all that was so promising in 2015 – promise that seems betrayed. In the polls, the major parties have now reversed positions.

But B.C. may yet be one of the few places to resist a Conservative tide. Where the Conservatives have their greatest appeal there are no gains to be made. Liberal retreat on Vancouver Island may help the NDP. For control of government, it all comes down to the Metro regions. The Liberals have angered the right and disappointed the left, but there will be calls for anti-Conservative strategic coordination. Will they be heeded? And if they are, will any one party be the most credible coordination point? Or will fragmentation on the centre-left allow the Conservatives to run the table?

The Prairies: Liberals May Be an Endangered Species

by Royce Koop

Royce Koop is Head of the Department of Political Studies 
at the University of Manitoba in Winnipeg.

For Prime Minister Justin Trudeau, harvesting support from the prairies must feel like trying to cultivate barren land. This was the case even before the SNC-Lavalin controversy rocked the government; it’s even more so now.

In the 2015 election, the Liberals scored four seats in Alberta, on the basis of 25 per cent of the vote, and one in Saskatchewan, with 24 per cent. The most recent Angus Reid poll places the Liberals at 19 per cent in Alberta and 14 per cent in Saskatchewan.⁴ In 2015, the Liberals won 45 per cent of the vote in Manitoba, picking up seven seats. Here the same Angus Reid poll places the Liberal Party at 24 per cent, a stunning drop. Many if not most of the party’s seats in that province are now in danger.

With only 12 MPs in the 184-strong Liberal caucus following the 2015 election, the prairies were never a force to be reckoned with in Justin Trudeau’s Liberal coalition. And while there is always the chance that Trudeau can turn the tide before the 2019 election, these polls suggest that the election may turn prairie Liberals into an endangered species.

Benefit from the Liberal Party’s prairie decline has accrued mostly to the Conservatives, who are polling above 50 per cent in all three prairie provinces. This level of support raises the possibility of a Conservative sweep, although some Liberal MPs with strong bases of local support, such as Saskatchewan’s Ralph Goodale, are likely to hold on. If Tory leader Andrew Scheer becomes prime minister after the election, it may be in part a result of near-solid support from the prairies.

The NDP may also be able to pick up a small number of seats as a result of Liberal decline, particularly in Manitoba where the party has experienced a recent slight boost in popularity. The most likely place for this to happen is Winnipeg Centre, the longtime NDP seat that switched to the Liberals while Trudeau was riding high in 2015. But a large-scale NDP breakthrough on the prairies under the leadership of Jagmeet Singh is unlikely.

Trudeau will also not be helped by the presence of three Conservative provincial governments in Alberta, Saskatchewan and Manitoba. All three are relatively popular as well as hostile to varying degrees toward the federal government. Saskatchewan’s Scott Moe and Manitoba’s Brian Pallister have had their fair share of policy spats with Ottawa, and Alberta’s new Premier, Jason Kenney, recently rode to power in part on the basis of the time-honoured Alberta tradition of bashing the feds. Kenney may try to direct Albertans’ anger at the federal government into a campaign aimed at defeating the province’s remaining Liberal MPs, similar to the “Anything But Conservative” campaign promoted by Newfoundland and Labrador Premier Danny Williams in the 2008 federal election campaign.

The carbon tax is likely to be a prominent issue in the coming campaign, as gas prices have swelled in the wake of its recent introduction. The government of Saskatchewan has launched a constitutional challenge to Trudeau’s carbon tax, and Kenney’s United Conservative Party has gained intervenor status in the challenge. Manitoba Premier Brian Pallister left the federal climate framework in 2017 and opposes the federal tax, but did not apply for intervenor status. Trudeau and his candidates may be able to fend off attacks effectively by pointing to rebates provided to Canadians, but with three premiers lobbying hard against the federal tax they will face an uphill battle.

The carbon tax is but one aspect of wider economic concern on the prairies about affordability and unemployment. Despite a correction to the price of oil, economic growth in Alberta has slowed to a crawl and the province has a persistent unemployment problem. Having now voiced their frustration with Rachel Notley’s provincial NDP government, Albertans may be eager to similarly use the ballot box to unleash their anger on the federal government’s economic policies.

While SNC-Lavalin will drag down Trudeau’s reelection efforts throughout the country (with the possible exception of Quebec), it will have a special resonance on the prairies. The view that Trudeau took extraordinary steps to protect jobs in Quebec while passively allowing the natural resource sector in western Canada to decline is widely held. This leads to what will likely be the most important policy issue on the prairies during the 2019 campaign: the need to build pipelines to transport oil, and the perceived failure of the federal government to do so. Kenney’s threat to use “turn off the tap” legislation to restrict B.C.’s oil supply ensures that debates over pipelines will continue throughout the summer and into the fall election.

The results of the 2015 election are increasingly looking like a high-water mark for the Liberals which they are unlikely to achieve again. Prairie voters seem likely to turn their backs on Trudeau, but in so doing they may be left out in the cold if the Liberals are reelected.

Ontario: The Ottawa–Queen’s Park Dynamic

by Paul Barber

Paul Barber is a retired former public servant and journalist. He worked for the governments of Ontario and Manitoba, mainly in intergovernmental relations and constitutional affairs, and as a TV current affairs documentary producer in Winnipeg and for the program The Journal in Toronto.

Trying to establish Ontario’s place in the federation’s politics presents a paradox. Critically important, Ontario cast 37 per cent of all votes in 2015, contributing 80 of the Liberals’ 184 constituencies. However, having elected a small-l liberal prime minister that year, the same province proceeded less than three years later to select the conservative Doug Ford as premier. Justin Trudeau introduces a carbon tax while Ford leads a charge against it, going so far as to enact legislation to require stickers on gas pumps denouncing the tax. Getting a fix on Ontario’s prevailing ideological winds is no easy task.

Things were clearer in the 1960s and 1970s, when under Premiers John Robarts and Bill Davis Ontario was governed by a progressive version of conservatism that was quite compatible with the era of Trudeau the elder. Take education as an example. The Progressive Conservatives invested prodigious resources in all levels of education, particularly postsecondary. It paid off economically, and Toronto’s current prosperity is directly connected to those investments. As a producer with CBC’s Journal in 1985, I made a short documentary profile of a small high-tech firm in Toronto that had just sold its new design system for cars to General Motors. Why in Toronto? CEO Stephen Bingham said that the staff’s advanced technical skills were attributable to investments by Bill Davis in places like the universities of Toronto and Waterloo and Sheridan College.

However, a new hard-edged conservatism took over in the Mike Harris years of the nineties, prioritizing tax cuts and enthusiastically cutting education spending, although deep cuts to postsecondary were offset to some degree by tuition increases and private-sector support, particularly for elite universities such as Toronto and Waterloo. Those years featured strong economic growth imported from a boom south of the border (dubbed by economist Joseph Stiglitz the “roaring nineties”) aided by a continuously declining Canadian dollar that fell from about 72 cents U.S. when the Harris PCs took office in 1995 to 62.5 cents in January 2002. Conservatives mistakenly liked to think the growth was about them and Harris’s Common Sense Revolution.

The Dalton McGuinty Liberal government reversed Harris’s anti-education policies, earning kudos along the way from the OECD for its reforms. But taxes did not rise much, marking a key political and ideological success for the Conservatives. The government kept spending low in part by significantly postponing outlays for public services such as chronic care. When Doug Ford became premier in 2018, succeeding the seemingly progressive Kathleen Wynne (cap-and-trade, research on guaranteed basic income, changes to the sex education curriculum), Ontario had the lowest per capita program spending of any province despite the left-of-centre image Wynne cultivated, and low overall revenues per person, a tribute to the tax-cutting fervour of the Harris years.

Nevertheless, Canada’s largely conservative print media have misleadingly portrayed Ontario as a high-spending, debt-ridden basket case. Low taxes are a key contributor to debt, itself primarily a product of the financial downturn following the last recession. Compared to other provinces, per capita debt is relatively high but not the largest in Canada.

It is not always true that, as has often been said, Ontarians choose one party for Queen’s Park and send another to power in Ottawa, but it is true that federal-provincial political dynamics matter. A deeply unpopular provincial regime can harm the prospects of its federal counterpart. This is a clear and present danger for Andrew Scheer as evidence accumulates that some of Ford’s actions – making cuts to treatment of autistic children, increasing high school class sizes, slashing public health spending, rolling back local flood fighting capacity and libraries – are taking a toll on his popularity.

As if contrasting ideologies were not enough, we find that many of the senior personnel serving Trudeau, such as Gerald Butts and Katie Telford, were imported from Queen’s Park political circles, while Ford has surrounded himself with former Harper staffers, such as Jenni Byrne who served for a time as Ford’s principal secretary.

One key to the paradox perhaps is that Ontario, with a population of almost 15 million, is too large to have a single political culture. In the centre is Toronto – Liberal stronghold, political home to key Trudeau ministers such as Finance Minister Bill Morneau and Foreign Affairs Minister Chrystia Freeland. Toronto’s suburbs, better known by their telephone area code 905, harbour considerable Conservative strength. The ambiguity of Ontario’s outlook seems rooted here: heavily Liberal in 2015 but mostly PC in the 2018 provincial election. This region is the political home of Jane Philpott of SNC-Lavalin scandal fame. However, scandals past have generated headlines but had little impact on votes.

Meanwhile, with the exception of tech centre Kitchener-Waterloo, the southwest, including London and Windsor, experienced post-recession some of the manufacturing stagnation characteristic of neighbouring American states. This bred discontent, although even here recovery has taken hold. There is longer-term stagnation in the north, also home to a large Indigenous population, politically a relative stronghold for the NDP. Eastern Ontario is a rural sea of small-c conservatism, except for Kingston and metropolitan Ottawa.

Trudeau the elder won three majorities, in the elections of 1968, 1974 and 1980. In between, however, he had a near miss in 1972, winning one more seat than the Tories (he continued to govern, propped up by the NDP), and a minority loss to Joe Clark in 1979. A key factor in the difference between the Liberal majorities and their poor results in 1972 and 1979 was fickle Ontario. The province was charmed by the Trudeau mystique in 1968 and 1974, while deep disappointment produced the minorities of 1972 and 1979. Having been weakened by scandal, Trudeau the younger may find history repeating itself in 2019. A potential key difference: Ontario’s provincial politics played no role in the elections of the seventies. That is not likely to be true this year.

Quebec: No Party Has Claimed Voters’ Hearts

By Eric Montigny

Eric Montigny is professor in the Department of Political Science at Université Laval in Quebec City.

In general, federal politics is not a priority for Quebeckers. They pay more attention to what goes on in the National Assembly in Quebec City and to specifically Quebec issues, and media coverage follows suit. Major shifts in public opinion between federal elections are rare. However, Quebecers are far from being loyal partisans, and there has been considerable volatility among voters since the 2011 election. In this context, rather than trying to predict what they will do in the next election in Quebec, I focus instead on analyzing the characteristics of the Quebec electorate and the issues that are likely to influence the vote.

A distinct party system

If only because of the existence of the Bloc Québécois since 1990, the distinct society that is Quebec expresses itself at the federal level through a party system very different from that of the rest of Canada. Quebec’s distinct media agenda also reinforces this unique party system.

From 1993, when it won enough seats to become Her Majesty’s loyal opposition, until 2011, the Bloc Québécois was the dominant federal party in Quebec. The 2011 election spawned a new period of instability, with the Bloc unable to elect even the 12 MPs needed to be recognized as an official party in the House of Commons. It was the victim at the federal level of the erosion of the Yes/No cleavage on the independence issue on the Quebec electoral scene.

With the NDP collapsing in Quebec, the Liberals expect to make gains to offset the losses they may incur elsewhere in the country. Will they be able to put forth a different message for Quebec than for the rest of the country, as they did in 2015? This time, both the NDP and the Conservatives have opted for the strategy of appointing Quebec lieutenants for leaders who are still relatively unknown in Quebec. Alexandre Boulerice plays this role for Jagmeet Singh, and Alain Rayes for Andrew Scheer. Meanwhile, after years of internal dissension, the Bloc Québécois chose a new leader, former Parti Québécois MNA Yves-François Blanchet, who hopes to restore the Bloc’s status as an official party.

Quebec is now a real battleground

With 59 seats out of 75, the 2011 election was the NDP election. With 40 seats out of 78, the 2015 election belonged more to the Liberals. As the 2019 campaign begins, no party can claim to have won the hearts of Quebeckers – even though Justin Trudeau seemed solid just a few months ago.

Early in his mandate, some pollsters were predicting a Liberal tsunami, as polls showed the party supported by one out of every two Quebec voters, a peak unmatched since 1980. However, polls conducted a few months before the election have revealed a crumbling of this dominance. In March, for the first time, a poll even showed the Conservatives and Liberals tied in Quebec.⁵

Justin Trudeau’s controversial trip to India represented the first breach in his image. Then, this winter, came his unsteady handling of the SNC-Lavalin crisis that shook his cabinet and led to the resignation of two of his ministers. At the same time, the Conservatives have been increasing their efforts to develop a real organization in some regions of Quebec.

The positioning of parties with respect to Quebec

In 2015, in a letter addressed to then– Quebec Premier Philippe Couillard, Justin Trudeau promised to establish “a true partnership between the federal government and the provinces.”⁶ He promised then to reinstate first ministers’ meetings on a cooperative footing. However, the arrival of François Legault’s new government in Quebec last fall has coincided with the emergence of several disputes between the two levels of government – on immigration, infrastructure, secularism and taxation. Only the issue of the environment seems to bring them together.

Strengthened by not having to face the voters for three years, the Legault government has adopted a strategy developed by former Premier Jean Charest: formulating a list of demands for the federal parties before a federal election.⁷ These include increased immigration powers and the introduction of a single tax return administered by Quebec. Only the Conservatives have been open to increasing Quebec’s autonomy on these two issues. After accepting the principle of a single tax return at its convention, the NDP then flip-flopped. For its part, the Bloc Québécois will try take up the Quebec government’s demands as its own.

After the NDP election in 2011 and the Liberal election in 2015, will 2019 mark a breakthrough for the Conservatives in Quebec? Will it allow the Bloc to regain its status as a major party? These possibilities illustrate the current volatility of Quebec voters at the federal level. If Justin Trudeau has disappointed many voters, his opponents are not drawing much enthusiasm. And yet, just as in the time of Pierre Elliott Trudeau and Brian Mulroney, how Quebeckers choose could have a decisive effect on who forms the next Canadian government. But what that choice will be remains to be determined.

Atlantic Canada: Beneath the Partisan Struggles, Two Competing Visions

by Patrick Webber

Patrick Webber works as a political adviser to the New Brunswick government.

A close Canada-wide battle is shaping up between Liberals and Conservatives, raising the possibility that Atlantic Canada could reverse the steady decline of its political clout, just as a smaller party can exercise greater influence in a minority government. In 2015 Justin Trudeau’s Liberals won all of Atlantic Canada’s 32 seats and nearly 59 per cent of the vote, beating their 1993 landslide (57 per cent and 31 of 32 seats). No one expects a repeat of 2015, and a former Liberal stronghold is now clearly in play.

Liberal woes in the aftermath of the SNC-Lavalin scandal don’t stop at the Quebec–New Brunswick border. With Trudeau already polling below his 2015 showing at the start of 2019, the year’s first quarter saw the Liberals tumble to a near-tie with the Conservatives (see table 1).

While Liberal prospects in Atlantic Canada remain stronger than anywhere else except Quebec, the electorate is volatile. In an average of two March 2019 polls, Justin Trudeau is still the region’s choice as prime minister but his lead has narrowed to just four points: 27 per cent compared to Conservative leader Andrew Scheer’s 23 per cent. As important, 38 per cent of voters – the highest level in Canada – chose “Don’t know / None of the current leaders” when asked who would be the best prime minister.⁸ A series of MQO Research polls released in February found the share of undecided voters ranging between 34 and 38 per cent in each Atlantic province.⁹

The Conservatives will target anglophone New Brunswick, a region that was crucial in returning a minority Progressive Conservative provincial government last fall, and the rural mainland of Nova Scotia. The Conservatives lost the New Brunswick ridings of Fundy–Royal, New Brunswick Southwest and Tobique–Mactaquac by less than 10 points in 2015; Fredericton, Miramichi–Grand Lake, and Saint John–Rothesay are second-tier Tory targets. In Nova Scotia, Central Nova and Cumberland–Colchester will be top Conservative targets. Bill Casey, Cumberland–Colchester’s MP for 21 of the last 31 years, sitting as a PC, Conservative, independent and Liberal, is not seeking reelection. Scott Brison, elected as a Progressive Conservative in 1997 before defecting to the Liberals, is retiring, which may open Kings–Hants to the Tories. South Shore–St. Margaret’s and West Nova round out the opposition’s second-tier targets.

Things are looking more comfortable for the Liberals in Newfoundland and Labrador and in Prince Edward Island, although that island province shows the Liberals have to worry about their left as well as their right flank. The Green Party, which has only existed for a decade, has made provincial breakthroughs in New Brunswick, with three of the province’s 49 seats, and in PEI, where they took eight seats in the April provincial election and now form the official opposition.

Speaking to a more pastoral brand of leftism than the more industrial-minded and ideologically strident NDP, the Greens are attractive in the parts of the Maritimes where a “small is beautiful” ethic has followers. They are helped by the relatively strong appeal of federal leader Elizabeth May. In a recent poll May was the only major federal leader to register a positive approval rating, with no other leader scoring better than a negative 19 per cent.¹⁰ Watch for strong Green performances across PEI and in Fredericton (which posted the second-best Green result east of British Columbia in 2015), though those campaigns are less likely to elect Greens than to shave votes from the Liberals and NDP to the benefit of the Conservatives.

The NDP is in a desperate situation. Between 1997 and 2015, there were always at least three New Democratic MPs in Ottawa; 2015 saw the NDP shut out across the region. Things have not improved, with only one candidate nominated as of late March, and no former MPs or star candidates recruited. Outside Nova Scotia provincial NDP organizations range from moribund to shambolic; in New Brunswick the party went from its best-ever result in the 2014 provincial election to just 5 per cent in 2018, its worst showing since 1974. Federal leader Jagmeet Singh is not gaining traction, and is the first choice of just 3 per cent of Atlantic Canadians for prime minister. Barring a local contest that defies electoral gravity, we can expect a second NDP shutout.

The 2019 election in Atlantic Canada will be a battle between competing visions of the region’s place within Confederation. In their 2013 book The Big Shift, Darrell Bricker and John Ibbitson outlined a concept of Canada as a country divided between two visions. The Montreal-Ottawa-Toronto “Laurentian Consensus” supports robust federal programs to ease economic hardships in less fortunate regions. This means generous federal transfers and Employment Insurance programs for Atlantic Canada, ensuring support for this vision.

Juxtaposed with the Laurentian Consensus is the “New Canada” championed by western provinces and the growing and diverse suburbs of Ontario’s major cities. Less focused on offering economic life support, these centres prefer growth, aspiration and local control to complex, expensive and ineffective central government.¹¹ Atlantic voices are starting to question the Laurentian model: debt, aging populations and sclerotic economic performance papered over by federal funds must change to a frugal, entrepreneurial and less development-averse mindset. Beneath the noise of the coming campaign, look to see this clash of visions – often within parties as much as between them – create an underlying dynamic that will influence political debate within the oldest and poorest of Canada’s regions in the years to come.

Continue reading “Up For Grabs” →

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With a federal election looming, when the SNC-Lavalin affair erupted the political fallout was clearly at the top of people’s minds. But the policy and process questions underlying the public controversy were of perhaps greater long-term significance. What was the most appropriate way of dealing with the SNC-Lavalin case, criminal prosecution or a remediation agreement? To what extent should public policy considerations influence prosecution decisions? These were the questions that preoccupied the Inroads listserv, and the discussion rarely strayed from matters of substance, leading Arthur Milner to comment, “It’s too bad the media discussion wasn’t at this level. It would have died as a public issue in a minute and a half.” It began with a post from John Richards.

From: John Richards | March 7

To get to the point, here is my conclusion. By agreeing with the Director of Public Prosecutions that SNC-Lavalin be prosecuted and denied access to the remediation agreement (RA) option, Jody Wilson-Raybould made a serious political error and, arguably, a poor decision in terms of strategy for dealing with corporate crime.

Background

SNC-Lavalin undoubtedly engaged in some major instances of corrupt corporate behaviour. SNC-Lavalin is not unique. Engineering firms working in badly governed developing countries frequently engage in corrupt activity. The present case concerns a $48 million bribe to Gaddafi’s family in Libya. Another major SNC-Lavalin exercise in corruption was to bribe the Bangladesh government to gain the engineering contract for a US$3 billion bridge over the country’s largest river. When the arrangement came to light, the World Bank refused to provide any financing for the project and several SNC-Lavalin executives were prosecuted. Unfortunately, on technicalities, the prosecution failed.

Determining public policy for firms engaged in countries such as Libya and Bangladesh is an interesting question. Should Ottawa construct a list of countries in which Canadian investments are banned? The list of banned countries would be long. Should there be some sophisticated regulatory entity that decides on “legitimate” bribery? Canada’s government sanctioning bribery is unlikely to be publicly acceptable. Should we continue with the status quo, which means essentially doing nothing unless the crime becomes subject to major public scrutiny?

Amendment to the Criminal Code

Several countries, including the United States and the United Kingdom, have adopted remediation agreements as the preferred instrument for penalizing corporate misbehavour. Presumably as a result of SNC-Lavalin lobbying, the government amended the Criminal Code in 2018 to enable RAs. Here is a passage (section 715.3 of the Criminal Code) dealing with the purpose of an RA and conditions under which its use is appropriate:

Purpose

715.31 The purpose of this Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives:

(a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community;

(b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties;

(c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture;

(d) to encourage voluntary disclosure of the wrongdoing;

(e) to provide reparations for harm done to victims or to the community; and

(f) to reduce the negative consequences of the wrongdoing for persons – employees, customers, pensioners and others – who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.

Conditions for remediation agreement

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.

Why Jody Wilson-Raybould was wrong

(a) At no time did Wilson-Raybould, as Attorney General, or the Director of Public Prosecutions provide a public explanation as to why SNC-Lavalin should be prosecuted and should not be eligible for an RA.

One point of agreement between Wilson-Raybould and Gerald Butts’s testimony to the parliamentary committee is that the time between the crown prosecutor deciding on prosecution and the Minister’s agreement to that option was very short, less than a week. The Minister apparently communicated her position orally to the Prime Minister. On the basis of the text of the RA amendment to the Criminal Code, it is hard to see why SNC-Lavalin was not eligible for an RA. As Butts summed up, “When 9,000 jobs are potentially at stake if SNC-Lavalin is found guilty and is banned for 10 years from bidding on Canadian government contracts, we are dealing not only with the law but with public policy.”

(b) The decision is immensely divisive in terms of pitting majority opinion in Quebec against majority opinion in ROC. According to poll results reported in the Globe and Mail on March 4, only 34 per cent of those in ROC favour resort to an RA, whereas 54 per cent of Quebeckers favour an RA. In ROC, the SNC-Lavalin affair has come to mean that corrupt Quebec politicians once again are using their influence in Ottawa to protect Quebec business interests. For the majority in Quebec, ROC hostility toward Quebeckers is once again on display. Ottawa is willing to spend $4.6 billion to buy a dubious pipeline company in western Canada to save jobs in the Alberta oil sands, but intends to drive a major Quebec corporation into potential bankruptcy.

From: Louis Germain | March 8

A remediation agreement allows a company to avoid a trial and conviction. It doesn’t allow the company to escape the consequences of its actions. It has to fire the executives responsible for the wrongdoing, put corrective action in place and implement it under supervision by an independent monitor, and pay heavy financial penalties.

The company as such – employees, retirees, shareholders, experts, etc. – is not responsible for wrongdoing by its executives. Except for the fines imposed on it, the company should not be punished if some of its executives have engaged in malpractice. An RA does not shelter the executives responsible for the wrongdoing from criminal prosecution. If the executives are not prosecuted – as, unfortunately, is most often the case – it is not because of the RA. It is because of the cronyism between politicians, leading figures in the justice system and economic “elites.”

The cause of the denial of justice that many people rightly condemn is this cronyism and not the RA, which is an excellent measure.

From: John Whyte | March 11

Prime Minister Trudeau did not apologize to former Justice Minister Jody Wilson-Raybould for the relentless badgering she received from his office over her adoption of the federal prosecutors’ recommendation that SNC-Lavalin be prosecuted for corporate crimes and not be offered the alternative process of remediation – a process that would have led to heavy financial penalties but not to criminal conviction and exclusion from federal contracts for 10 years.

He did say, however, that he was open to considering the creation of a sharper structural division between those with direct prosecutorial responsibilities and those who do not have these responsibilities but who have opinions on how prosecutorial decisions can best serve the public interest. Possibly, this concession was implicit recognition of the legitimacy of the former minister’s concerns over relations between her and the government members who spoke with her concerning her decision.

At least one province has chosen to institute the high level of separation and immunity from political interference with prosecutorial activity for which many are now clamouring. Nova Scotia has created a prosecutorial authority that is not tied to the justice department. The legislation that created this largely independent prosecutions agency forbids any ministerial involvement with prosecutions except for a direction to the prosecutions department by the minister of justice that is made in writing and published.

The reason for a sharp delineation of functions is clear. Exercises of governmental power generally have coercive effects – taxation, zoning laws, market regulation and, of course, criminal justice. While none of these powers should be used to punish political opponents or grant favours to political friends, it is the highly repressive power to punish crimes that has raised the greatest concern over the partisan and wrongful use of governmental power. This concern underlies the case for prosecutorial independence.

Nevertheless, most provinces, as well as the federal government, have not adopted a formal regime of separation between prosecutors and the attorney general or, for that matter, other government members. There is good reason for this. As dangerous as partisanship in the administration of criminal law is, the lack of political accountability for prosecutorial decision-making can also be costly. Prosecution branches wield tremendous power over the lives of citizens and over the life of distinct communities; their decisions shape their governments’ effective response to social risk and social dysfunction. As much as any other government bureaucracy, they can cause social harm when they fail to pursue their function without consideration of the broader public interest. And indeed, almost all prosecutorial services do operate under conceptions of social interests.

It is not mistaken to build in some degree of accountability for the administration of criminal justice or to maintain some operational connection, albeit attenuated, between prosecutors and the political branch. The standard way of doing this is to have prosecutorial services work within a ministry led by a member of cabinet – the attorney general. This minister is accountable to the cabinet, although definitely not subject to direction on matters of legal interpretation and application.

However, there are legitimate political and social questions to ask of the administrators of criminal justice, including, perhaps indirectly, the members of the prosecutions branch. Are dangerous offender applications being used with due restraint? Are community justice, or diversion, programs – as alternatives to prosecution – being used and supported? Is the Gladue sentencing principle (criminal courts in sentencing are required to take into account life experiences of Indigenous offenders) being respected? These, as well as general questions about prosecutorial policies on charging, or about the general efficacy of criminal justice in keeping communities safe, are the kinds of legitimate questions that an attorney general is free to ask – and, in turn, can legitimately be asked about by cabinet colleagues and members of legislatures.

In short, if one wants criminal prosecutions to be guided by something beyond the established criterion for prosecuting (is it likely that a conviction can be obtained?), or if one thinks prosecutorial authority should be exercised with a wider understanding of social conditions and social need – for instance, through considering what sorts of responses to crime might stop the criminal justice system from turning a pattern of social dysfunction into the wholesale incarceration of young males – then political direction and political accountability become inevitable and appropriate.

It cannot be surprising that, if a legislative body, or a court, develops a policy for tempering prosecutorial decision-making with social and economic values, government members, seeing these as public interests, are bound to think they have responsibility for questioning whether the state’s criminal justice operation is meeting this criminal policy. And in this nation, government members do exercise this responsibility.

However, there may be a crucial distinction between raising a question over the effects of prosecutorial choices and becoming actively engaged with specific prosecutions. The latter will certainly give rise to suspicion of wrongful political meddling and breach of the rule of law. But even in individual cases, there might sometimes be reason to ask if the aims of criminal justice are being thwarted through the singular prosecutorial focus on what charge will succeed at a criminal trial as opposed to what prosecutorial decision best serves established social interests. But it is important to note that in developing new criminal justice policies (as in the remediation scheme that SNC-Lavalin sought to use) there is not usually any legislated limit on prosecutorial discretion – although it does occur.

What seems clear is that although prosecutors are often expected to consider the social and economic implications of their decisions, it offends the basic human right to prosecutorial independence if members of the government start to dictate what criminal charges should be laid and which criminal trial process should be used.

From: Russil Wvong | March 11

Howard Anglin suggests putting in place a formal process where the attorney general requests input from the rest of government, in writing, on any public interest considerations which the attorney general should take into account. In the U.K., this is known as a Shawcross exercise. For example, a Shawcross exercise was used in the case where BAE Systems was being investigated for bribing Saudi officials. The Attorney General eventually decided to halt the investigation. Key points:

• The process is initiated by the attorney general.
• Everything is in writing.

In contrast, in the handling of the SNC-Lavalin case, the communication was initiated by the rest of the government, not the Attorney General, and nearly all the communication appears to have been verbal.

From: Gareth Morley | March 13

The remediation agreement statute says that an organization is eligible for one only if 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.” There is also a requirement that there be a reasonable prospect of conviction (not an issue in this case), that the prosecutor be of the opinion that the remediation agreement is in the public interest (probably the sticking point so far) and that the attorney general consent (obviously not an issue if the attorney general issues a directive).

The attorney general can provide a directive to the director of public prosecutions under section 10 of the Director of Public Prosecutions Act. In doing so, the attorney general would have to say that he or she is of the opinion that the conditions are met. I could imagine that there might be litigation about this, but it would be unlikely to succeed since there would have to be proof of bad faith. The real issue would be political. Attorneys general do not tend to issue proclamations in relation to specific prosecutions. If David Lametti were to do so, it would no doubt be a big deal politically, but it would probably be the end of the matter legally.

Section 715.32 (3) of the Criminal Code says the “national economic interest” is not a factor that can be considered in deciding a remediation agreement is in the public interest. This language comes from an OECD agreement. The Clerk of the Privy Council, Mr. Wernick, testified that his understanding is that it refers only to the “national interest” as against other countries. Mr. Wernick is not a lawyer. The OECD has responded by saying this is nonsense. In practice, it will be up to the director of public prosecutions or, if there is a directive, the attorney general, to determine what “national economic interest” means.

From: Reg Whitaker | March 13

The SNC affair is nothing if not complicated. A couple of complexities to add to Gareth’s points.

The law on RAs as drawn up is not exactly clear on justification – it might even be described as opaque in parts. Most opaque of all is the matter of what criteria can be legitimately considered in taking this route. “National economic interest” is ruled out, but the “public interest” is not. I have no idea how one could conceivably construct a notion of the public interest that had no economic component, especially when we are talking about private sector corporations with inevitable impacts upon employment, GDP, government revenues, etc. Somewhat similar scepticism must be raised about a prohibition on “political” considerations. For any democratic government facing reelection, how can one possibly detach partisan political considerations entirely from public policy decisions? I mean, really.

From this murk I draw two observations on the present imbroglio. First, efforts to get Wilson-Raybould to change her mind are not necessarily as obviously nefarious as some have been claiming. Second, and more importantly, I would not advise any government to go down the RA route as it is almost inevitably bound to land them in just this sort of mess. Far better if they had just let the criminal prosecution of SNC proceed as the attorney general had indicated. But this leads to a glaring flaw in existing law, this time the corruption law.

The government is so concerned about a criminal conviction for SNC because its own law specifies a 10-year ban on government contracts in Canada: no discretion, 10 years if guilty.

As I understand it, they simply copied the terms followed by the World Bank, which has banned SNC from any work it sponsors for 10 years. But the World Bank’s guidelines are themselves outliers in relation to other legislation on corporate corruption. If the government had had the presence of mind in drafting this law to simply make the ban on government work a maximum of 10 years with the actual number of years to be determined by the courts, rather like normal sentencing, perhaps the spectre of SNC failing or leaving the country would not have been as threatening.

The SNC-Lavalin discussion on the listserv was dormant for several weeks (replaced by an extensive debate on Quebec’s Bill 21 on religious symbols). But then on April 7, Frances Abele provided a link to Andrew Coyne’s column of the previous day, suggesting that it “is worth your time to read.” Coyne wrote,

It isn’t just that the prime minister and a phalanx of other senior government officials … quietly tried to derail the prosecution of a company with a long history of corruption and an even longer history of donating to the Liberal party; that they pressured the former attorney general, Jody Wilson-Raybould, to have prosecutors drop charges of fraud and corruption against the company in favour of a “remediation agreement” for which it had already been deemed ineligible; or that they did so, by the former attorney general’s account, for explicitly partisan reasons …

No, the real scandal is the determined – and, it would appear, largely successful – campaign on the part of the prime minister and his officials to normalize their conduct: as if monkeying around with criminal prosecutions was all part of the usual give and take of cabinet government, or at worst a misunderstanding between people who “experienced situations differently.”

But it isn’t normal. More, it must not become normal …¹

This touched off another round of posts on SNC-Lavalin.

From: John Richards | April 7

Of course, governments should not “monkey around” with the Criminal Code, but let us avoid insults and think a little further about the matter. There are many dimensions to the issue.

The first dimension is the incompetence of the government in 2018 when introducing the Criminal Code amendment to enable use of a remediation agreement in cases of corporate corruption or fraud. The government enacted the amendment with minimal public discussion of its implications. Such a discussion should have elaborated on why the OECD considers remediation agreements to be in many instances a preferred means to settle cases of corporate fraud, provided there is admission of guilt. Remediation agreements are accepted practice in many countries, including the United States and the U.K. The government should have stated its intent to use a remediation agreement with respect to SNC-Lavalin, which was clearly guilty in its dealings with Libya – and several other countries.

The second dimension is to remind everyone that, in the Westminster parliamentary tradition, the Criminal Code is a political document. In his erudite contribution to the listserv, John Whyte (former deputy attorney general in Saskatchewan, former dean of Queen’s University law school) made the point that the government can legitimately amend the Criminal Code and thereby intervene in the judicial process. Such interventions should be rare, and should concern issues with broad public implications.

The third dimension is that SNC-Lavalin is, for Quebec, a “too big to fail” firm. It is one of the few firms operating primarily in French able to compete in an international context for major engineering contracts. It has provided thousands of desirable professional jobs for Quebecers obviously, but not only Quebecers. If the firm decides the Canadian legal system is too hostile, it may well decamp to another country that is not so intent on criminal prosecution as the only legitimate means of redressing corporate misbehaviour.

Too-big-to-fail firms present difficult public policy dilemmas. The response in the United States has been a major revision of corporate law bearing on financial institutions. There is more to be done.

The fourth dimension is corporate conduct in “weakly governed” countries. Political leaders in countries such as Libya pose extreme pressure to obtain bribes. Admittedly, the market in bribes thrives in such countries because there are well established markets – both eager recipients of bribes and willing corporate bribers. Regulating corporate behaviour in this context comes under the label of “corporate social responsibility.” As the SNC-Lavalin case illustrates, Canada has much to do in this domain.

Finally, for as long as I can remember, Coyne has displayed scepticism, if not hostility, to Quebec’s institutions and political preferences. Managing Quebec-ROC relations is a major responsibility of the federal government. He is the last person whose advice should be the basis of policy. The Léger poll in March was clear: three quarters of Quebeckers want a remediation agreement, as opposed to a prosecution. No doubt, in ROC the attitudes are the reverse. Coyne is doing his best to inflame.

From: Gareth Morley | April 7

To be fair to Coyne, he is not arguing against the government “monkeying around” with the Criminal Code – it is absolutely any government’s prerogative to bring in legislative amendments. The issue is whether a government can “monkey around” with an individual prosecution. That is a whole different kettle of fish. Whether there should be RAs, what the legal standards should be for giving them – these are questions of public policy and politics. Whether a particular accused person meets the standards – this has always been something that politics is supposed to be kept rigorously out of.

The British tradition has been that prosecution is an executive function as a matter of law, but there are conventions that mean that the attorney general is supposed to make these decisions nonpolitically and cabinet colleagues are not supposed to interfere. This example reflects the traditional British preference for leaving important principles that make liberal democracy function as tacit conventions, rather than explicit legal rules.

In both Canada and B.C., we have actually put some statutory rules in place, so that the prosecution service – while still part of the executive – is given independence when making these decisions. The attorney general is left the theoretical legal power to issue a directive in relation to a specific prosecution. However, this power has never been used, either provincially or federally. It is like the power of the governor general to dismiss the government or the federal power to disallow provincial statutes – or, arguably, the notwithstanding clause.

The dynamic that Coyne points to – and that is indeed worrying – is that if the Liberals respond to the SNC-Lavalin affair by arguing that it is perfectly appropriate in partisan politics to pressure the attorney general to interfere with prosecutorial discretion and fire her if she does not, then their partisans – or people who side with them for other reasons, such as their climate change or child poverty agenda – will tend to follow them. The British system only works as long as all members of the elite tacitly accept and reinforce the norms. If these norms are made a matter of partisan dispute, then they will not last.

This is precisely what was problematic about Trump firing Comey or calling on his Justice Department to investigate Hillary Clinton. At least 40 per cent of Americans will follow along because they are loyal to the Republican team for other reasons. Moreover, the opposing 40 per cent are likely to feel that they are patsies if they respect norms that their opponents break.

This movie does not have a happy ending. It is precisely because it is the natural order of things that people in power will use that power to gain advantage in the criminal justice system that norms against doing this are important. In Canada, the fairly swift punishment of the government in the polls suggests that the norm might (optimistically) be strengthened. I see no evidence that Quebec voters appreciate being told that they don’t care about corruption or depoliticized criminal justice. On the other hand, there is a substantial minority of Liberal voters (and obviously a majority of the Liberal caucus) who have learned the lesson that respecting prosecutorial independence is for suckers. The way these things work, if the Conservatives get into power and something similar happens, the lesson Conservative partisans will take is that turnabout is fair play. Pretty soon, the stakes in every election include whether your friends go to jail or have immunity from investigation.

From: Russil Wvong | April 7

I’m a Liberal supporter who volunteered for Jody Wilson-Raybould in 2015. I’ve been following the SNC controversy very closely, reading through all the testimony.

I agree with Wilson-Raybould and Coyne that prosecutorial independence is critical – the anti-Clinton chants of “lock her up!” at Trump rallies illustrate this. This is true even for cases like SNC where there are strong public interest considerations for pursuing a remediation agreement. The decision, based on weighing of public interest considerations among others, is to be made by the director of public prosecutions, not by the prime minister.

However, there are a few points where I would venture to disagree with Wilson-Raybould. On that basis, my take is that everyone involved was trying to do the right thing, but got their wires crossed.

Explaining decisions on prosecution

In a case like SNC where there are strong public interest considerations, the government needs to be able to defend the decision in public. Wilson-Raybould and Coyne say that the prosecutor and the attorney general are under no obligation to provide the reasoning for the decision, which seems unrealistic.

It’s clear from the recording of the phone call between Michael Wernick and Wilson-Raybould that as of December 18, the PMO didn’t understand what the Director of Public Prosecutions’ reasoning was in deciding not to pursue a remediation agreement. What were the considerations in the case which outweighed the public interest considerations? In the call, Wernick is repeatedly asking about the Director of Public Prosecutions’ reasoning. The section 13 notice which the Attorney General’s office forwarded back in September appears to have gotten lost, and the call concludes with the Attorney General saying that her chief of staff will forward the notice again.

According to University of Toronto law professor Kent Roach,

Prosecutorial independence should not be an excuse for prosecutors not providing reasons for important decisions. Indeed, the reluctance of the courts to intervene in matters of prosecutorial discretion … suggests that prosecutors can be more forthcoming about the reasons for the momentous decisions that they make without courts second guessing either the substance or adequacy of their reasons.²

Input on public interest considerations

Wilson-Raybould’s position appears to be that according to the Shawcross doctrine, other people within the government should not be talking to the attorney general about public interest considerations. I think that may be incorrect. Deputy Attorney General Nathalie Drouin raised the example of the Corner House (BAE) case in the U.K., which went through a couple of levels of judicial review. In that case the Prime Minister was making representations directly to the Attorney General, but the judicial reviews never commented on this. I thought the case was also interesting as an illustration of how the Shawcross doctrine works in practice.

External advice

Gerald Butts wanted the Attorney General to get a second opinion by seeking external advice. She thought this was improper. I’m not sure why.

Strengthening the independence of the AG

Anthony Housefather, chair of the parliamentary justice committee, has suggested that “what Canadians should be most concerned about is clarifying this for the future. We need to make sure that everyone is clear on what one can and cannot say to the attorney-general in the context of a prosecution, and in particular the decision on whether or not to enter into a remediation agreement, which is an entirely new concept in Canadian law.”³

I think one key reform would be to require that any input from the rest of government needs to be provided in writing. In the U.K., there’s a practice called a “Shawcross exercise” in which the attorney general canvasses the rest of the government and they provide their input in writing.

As a Liberal supporter, I’m not happy about the SNC controversy. But at the same time, I don’t want to sit on the sidelines and let the Conservatives win the upcoming election by default.

From: Gareth Morley | April 7

Thanks, Russil. If Liberal supporters generally react as thoughtfully as you just have, I don’t think we have much to worry about as a society. I do have a few questions and comments on your points.

1. I don’t think it is workable to have a requirement that prosecutors publicly justify their decisions, especially in ongoing cases. This is litigation after all. A requirement that all information about prosecutions of public interest be made public would make it impossible to conduct trials fairly. Section 13 of the Director of Public Prosecutions Act requires the director to keep the attorney general informed.
2. The “public interest” is one of the two factors every prosecutor considers at all times in a prosecution, along with “likelihood of conviction.” Governments will often issue guidance about a category of cases. I recall the Ontario NDP government in the 1990s said that spousal assault prosecutions were not to be dropped, except in extraordinary circumstances. The political process can legitimately push prosecutors in one direction or another for a category of cases, but it can’t legitimately push them over a specific case.
3. External advice. I have no doubt that it is open to an attorney general to ask for external legal advice when he or she has doubts about what departmental lawyers are saying. One thing I do not understand in this case is what “legal advice” the PMO thought the Attorney General ought to get. The question before her was whether she should take the unprecedented step of overruling the Director on a specific prosecution. She read the section 13 materials and thought there was no basis to do this. I don’t understand where complicated legal issues come into play.
4. Strengthening the independence of the attorney general. I personally do not think that reducing the responsibilities of the attorney general as minister of justice would make the situation better. The attorney general has to have a dual role as a part of the executive and as guardian of the rule of law. If the attorney general had fewer specifically departmental responsibilities, he or she would be a less important voice at the cabinet table. The flip side is that the departmental responsibilities of the attorney general / minister of justice may mean that this person has more trouble taking the fish-eye view of his or her own department, as compared with public works or defence. The thing about this tradeoff, though, is that it has nothing to do with SNC-Lavalin. This was clearly not a case where the Minister failed to keep her Attorney General hat on while thinking about Department of Justice business. This situation makes one worry that the goal is just to make the attorney general a more isolated figure in cabinet because he or she will have no programs or policy initiatives of significance.

On your suggestion of material being submitted in writing, I think there are two questions. Should it go to the director? If so, I have no huge problem with that on the understanding that the director is free to ignore it. Second, should it be public?

From: Russil Wvong | April 9

On the second question, I don’t think this material should be public (this could be used to try to mobilize public opinion one way or the other), although of course if the decision is subsequently reviewed, as in the Corner House case, it may eventually become public.

On the first question, I’m not entirely sure – I’m thinking of the Corner House case, but in the U.K. it appears that it’s the attorney general’s role to make the decision, whereas under Canadian law there’s a separation between the roles of the attorney general and the director of public prosecutions. My understanding is that part of the reason for this separation is to insulate the director of public prosecutions from political pressure, and so it seems reasonable to say that the attorney general would not necessarily forward written input directly to the director of public prosecutions, but might filter it, forwarding only those factors which seemed to the attorney general to be particularly important for the director of public prosecutions to consider.

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