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A Judge’s Misjudgment on SNC-LavalinA Judge’s Misjudgment on SNC-Lavalin

A Judge’s Misjudgment on SNC-Lavalin

Former Supreme Court Justice Frank Iacobucci broke no rules handling the file that has ethically compromised Justin Trudeau but his role seems unbecoming, argues Father Raymond de Souza.

Raymond J. de Souza
4 minute read

The ethics commissioner’s report was damning on the conduct of Justin Trudeau. But there are more figures in this tale than the prime minister and more worrying behaviour than just the prime minister’s illegal bullying of his attorney-general. 

Another aspect that raises questions is the role of former Supreme Court justice Frank Iacobucci, who served on the court from 1991 to 2004. There is no question of Justice Iacobucci engaging in illegal or unethical conduct. But there is a question of what is becoming for a former supreme court justice.

SNC-Lavalin bought the best influence money could buy. In 2018, as it was lobbying at maximum intensity for the government to change the law to exempt it from a criminal trial for alleged overseas bribery, it named as chairman of its board of directors the former clerk of the privy council, Kevin Lynch. The clerk is the prime minister’s deputy minister and head of the civil service. He would call the actual clerk, Michael Wernick, to press SNC-Lavalin’s case, namely that the clerk should pressure the attorney-general to reverse her decision regarding SNC. It was grossly improper for the clerk to exert such pressure, as the ethics commissioner has found. It was at least mildly improper for him to even take Lynch’s call on that matter. Wernick subsequently resigned, the first clerk to do so in a political and legal scandal.

The collusion of the former and actual clerks to influence the attorney-general to favour SNC-Lavalin was clearly out-of-bounds, if not strictly illegal. The case of Iacobucci is more complicated but still troubling.

Since his retirement from the court in 2004, Iacobucci has remained astonishingly active, beginning with service as interim president of the University of Toronto soon after retirement. He has served on the boards of the Law Commission of Ontario, General Motors, Tim Horton’s and the Toronto Star. More relevant, he has been repeatedly tapped to lead inquiries and commissions on some very high profile issues:

  • In 2005, Paul Martin named Iacobuuci as the federal government’s representative in discussions with indigenous Canadians regarding the legacy of residential schools.
  • In 2006, Stephen Harper appointed him to lead an inquiry into the treatment of three Arab-Canadians in Syria and Libya and the role of Canadian officials in their alleged torture.
  • He was appointed in 2007 by the government of Ontario to lead discussions with the Grassy Narrows First Nation, which had a troubled relationship with the crown over mercury poisoning and forest management. 
  • In 2011 he was appointed by the attorney general of Ontario to lead an inquiry into including First Nations living on reserves on provincial jury roles.
  • In 2014, he was appointed to independently review the killing of Sammy Yatim by the Toronto police force.
  •  In 2018, the Trudeau government appointed him to lead a new round of consultations with indigenous Canadians on the Trans Mountain pipeline project.

When governments need a fair, impartial, objective inquiry, an honest broker in difficult circumstances, Frank Iacobucci is the man. And his service in those roles has been widely praised.

So you can see why SNC-Lavalin would find in him a desirable advocate. The prestige of a former Supreme Court judge. A respected arbiter in delicate matters of justice and politics. Someone who commanded the ear of Canada’s highest political authorities, not by asserting himself, but by invitation. Indeed, at the very time the SNC-Lavalin events were at their peak last fall, Justin Trudeau appointed Iacobucci, SNC-Lavalin’s lawyer, to the Trans Mountain file.

It is rather astonishing. In the fall of 2018, acting for SNC-Lavalin, Iacobucci prepared a legal opinion for the Trudeau government arguing that it was legitimate for the attorney-general to overrule the director of public prosecutions regarding SNC-Lavalin. The ethics commissioner also reported that Iacobucci solicited an opinion from his former Supreme Court colleague John Major (1992-2005), on why the director of public prosecutions did not act properly in denying SNC-Lavalin a deferment from prosecution. Iacobucci even went as far as to ask former Chief Justice Beverley McLachlin (1989-2017) to review the SNC-Lavalin file. The Prime Minister’s Office subsequently suggested to the attorney-general that “someone like McLachlin” could help her to see the way clear to giving SNC-Lavalin what it wanted.

Iacobucci was in the middle of all this feverish activity to pressure the attorney-general to reverse her decision, activity now ruled by the ethics commissioner to have violated the conflict-of-interest act insofar at the prime minister was involved. And at the height of it, on one of the government’s most sensitive files, the Prime Minister appoints Iacobucci to head up the Trans Mountain consultations, the very man who was advocating for SNC-Lavalin on another sensitive file. 

Iacobucci was not in a conflict; he was a paid advocate, devoting his considerable talents and prestige to advancing SNC-Lavalin’s interests. The firm must have been delighted to see that Iacobucci was still the go-to man for delicate matters. It is no wonder that, even after the Iacobucci appointment, the recalcitrance of the Attorney-General, Jody Wilson-Raybould, drove the prime minister and his staffers to exasperation. Did she not get that if Frank Iacobucci favoured something, it was to be done? So in short order JWR was shuffled out and when the story broke publicly dismissed as emotional, incompetent, difficult to work with and disloyal.  

Iacobucci broke no laws. His legal ethics have not been impugned. His reputation remains sterling. But still, it seems unbecoming that someone whose very prestige comes from his experience as a Supreme Court justice and respected arbiter should be engaged in naked advocacy for a corporate interest. Especially if at the very same time as he is making a rather remarkable argument for a former Supreme Court judge – namely that the attorney-general, for the first time ever, should overrule the director of public prosecutions for political reasons – he accepts an appointment from that same government.

A former judge is not a judge. But something of the office he held endures in the man, otherwise he would not have received the retirement appointments that he did. And in this most messy case, it was not good that a judge became SNC-Lavalin’s advocate.  

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