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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.

Notes

¹ Andrew Coyne, The Real Scandal in the Lavalin Affair Is Trudeau’s Attempts to Pretend It’s Not a Scandal, National Post, April 6, 2019.

² Kent Roach, The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence, University of Toronto Faculty of Law Blog, March 17, 2019.

³ Anthony Housefather, What Canadians Need to Know about the SNC-Lavalin Affair, National Post, March 21, 2019.