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The Law of Closed Doors

Prime Minister Trudeau expelled Jody Wilson-Raybould and Jane Philpott from caucus this week to staunch what he called a political civil war among federal Liberal MPs. But in the second of her two-part Convivium essay, Ruth Dick argues Canadians’ real focus must be law that lets the privileged plead their case behind closed doors.

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The Law of Closed Doors April 5, 2019  |  By Ruth Dick
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Click here to read part one, "Too Big to Try?"

Amid all the claims, counter claims and pure politics of the SNC-Lavalin imbroglio, the most critical question of all has been unconscionably obscured. It is this: how well does legislation that allows an attorney general to overturn the judgement of independent prosecutors on grounds of general public interest, ensure that that general public interest is, in fact, protected?   

Someone facing the revocation of their citizenship may appeal to the appropriate minister on humanitarian and compassionate grounds by writing a letter setting out the reasons the Minister should overturn the decision about revocation. This creates a record of the interaction, and also allows for an assessment of the reasons. It also allows the disinterested to ask: Are the reasons true? Do they meet the criteria? 

Criminal law is the area of law most rigid about procedure. Yet the process outlined above is evidently not what happens when a criminal defendant corporation wishes to appeal to the attorney general to overturn the Director of Public Prosecution’s decision to deny them a deferred prosecution agreement. They do not put it in writing and create a record of verifiable facts to make their case, as measured by some sort of criteria about what constitutes the general interest. There aren’t any kind of limits set on contact under these circumstances.

Rather, what can happen – what did happen in the SNC-Lavalin case – involved direct calls from the company that were answered by senior staff in the PMO. Meetings were held with PMO power brokers. Corporate brass showed up at private events in hopes of a quick word. The Clerk of the Privy Council went so far as to suggest SNC-Lavalin officials contact the AG directly. Given the general expectation that decision makers will maintain a measure of independence, that in itself is jaw-dropping.  

At some point, these criminal defendants said something that persuaded the Prime Minister and his office and the nominally non-partisan Clerk of the Privy Council to support and assist, with some vigor, their efforts to avoid prosecution. 

This informal, frequent, aggressive, behind closed doors contact is not in any way forbidden. Since the focus of the justice and ethics investigations seems to be what passed between the PMO and Jody Wilson-Raybould, this contact between those in high office and criminal defendants seeking to avoid prosecution doesn’t seem to be off-side at all. Given that it was so successful in rallying the PMO to its cause, evidently this sort of thing has been encouraged.

Yet it absolutely destroys the idea that in criminal matters the same rules apply to everyone. It leaves the public with no reason to trust any of this process. Why?

Because we have no way of knowing what passed between SNC-Lavalin and the PMO behind closed doors. Every government, especially in an election year, has vulnerabilities that an unscrupulous, or even just self-interested corporation, might seek to exploit, though in fairness there’s no proof that happened here. 

Give the total absence of protective measures regarding contact between high officials and a criminal defendant corporation, however, a government could find itself in an attempt to be blackmailed or bribed or otherwise bought or threatened behind closed doors. Absent protective measures, the public shouldn’t have faith that its interest has been adequately protected.

Which raises the question: what exactly is there of substance in the "public interest" that allowed the SNC-Lavalin file to get as far as it did behind all those closed doors? The government initially told us there were 9000 jobs in jeopardy if the prosecution of SNC-Lavalin on bribery and other charges proceeded.  A bit of digging by the press led to that number being revised downward. Worse, SNC initially verified the 9000 jobs estimate. Then it said it made no representations about jobs in its quest for a deferred prosecution agreement. Then acknowledged it did. Follow the bouncing ball. Where it leads is to there being even less reason to trust that the general public interest was being served in this process.  Indeed, it’s very important we appreciate just how untrustworthy it is.

Suppose there actually are some jobs at stake. As Peter Stockland has pointed out, there’s a serious problem that arises with focusing on jobs, or shareholder value, or any such thing that might be jeopardized by conviction. How long is a piece of string? How many jobs must be at stake to create a general interest sufficient to override the public’s interest in independent prosecution? Nine thousand? Nine hundred? Nine?

And while the MP from the Montreal riding of Papineau – i.e., the Prime Minister – certainly should represent his riding, on what planet does that rise to the level of a “general interest” that outweighs the national standard of independent prosecution? The PM merely using the argument in his own defense gives us reason to be wary of the judgement of politicians in these matters. 

Politicians, sincerely as they might seek to act in the public interest, by their very nature have a politically slanted view of what the constitutes the public interest. Having been elected, do politicians have a mandate to interpret what’s in the public interest according to their personal political lights? Even if they do up to a point, we should be uneasy at the thought that something as foundationally important as independent prosecution can give way to the shifting political sands of personal calculus.  

It works, as well, to look at it from the perspective of corporate defendants. Should prosecution of companies depend on who is in office when the time comes to lay charges or go to trial?  That’s not exactly the sort of stability Canadians expect to see in the criminal justice system.

This concern shades quickly into something that’s even more intolerable. It unequivocally does not make sense to think politicians have a mandate to interpret the public interest according their political lights beyond their elected term. Extension of the mandate is a question for the voters. But a decision around jobs can impact chances for re-election. Surely improving one’s chances for re-election should be off-side as a reason to interfere in prosecutorial independence. It would unquestionably be undemocratic.  

The institutional integrity of the criminal justice system, the independence of prosecutors, should not to be tinkered with like a budget in an election year. Even setting aside the political instinct to preserve one’s power, it’s easy to imagine true believers sincerely thinking their own electability is in the public interest. Do we really trust politicians to be able to identify where that line is drawn and decide when to leave well enough alone when confronted by a powerful corporation with the clout to aid or hinder their chances of extending their version of the public interest mandate?  

Yet the deferred prosecution legislation now on the books sanctions a situation in which politicians have something to offer a company in trouble, over the heads of prosecutors and the attorney general of Canada. Unless we can count on a happy coincidence between venality and the general public interest, that is totally unacceptable.  

The independence of the attorney general is one of the things in contention in the present crisis.  In the U.K., it is well established that the attorney general may consult her fellow cabinet members, can be given information by her fellow cabinet members, but is never to be instructed what to do, nor pressured. She may consider the broader general interest but is not to take account of political considerations.  

The suggestion by the PMO that the attorney general seek a second opinion from a former Supreme Court of Canada justice is equally unacceptable. Jody Wilson-Raybould did not make her decision in a vacuum of legal expertise. Quite the opposite. As AG, she would have had, among others, the benefit of the opinions of expert, experienced and independent lawyers operating in full knowledge of the SNC-Lavalin file in the prosecution service, opinions which would have been scrutinized all the way up the food chain, to the director. 

There seems no question the actions of the PMO went beyond the mere giving of information. Repeated interactions initiated by the PMO on the subject of SNC seem prima facie to have been persuasive rather than informative efforts. The suggestion by the Clerk of the Privy Council that the criminal defendant corporation contact the Director of Public Prosecutions directly seems not only extremely inappropriate (imagine the same suggestion being made about a judge) but surely would have been in the service of persuasion. The suggestion she seek a second opinion from a former Supreme Court of Canada justice is not so much informative as it is dismissive. What has also become clear is the attorney general did not enjoy the ability to decide with unimpeded finality.  

Whether or not the Liberals went beyond the permissible in their dealings with the AG is an important question. But we’ve also seen enough to know it illustrates a deeper problem.

If the tradition of attorney general independence is in effect in Canada, it can be, and has been, totally ignored in practice by the current PMO. The proof? Were it not for the Globe and Mail’s Feb. 7 scoop, we would never have known that independence was under threat, much less being violated to the degree it appears to have been. The most foundational integrity of our justice system, then, was left to the happenstance interest and involvement of the Fourth Estate. Is that what we mean by independence?

And as Jody Wilson-Raybould’s taped conversation with Privy Council Clerk Michael Wernick showed, it’s in virtue of the legislation’s granting the AG power to overturn decisions of the prosecution service that the PMO behaved as they did in going well beyond just giving her information to consider. It is unclear what could prevent it from happening again, without our knowing. Even now, as long as the government’s party wields the balance of power over the ethics and justice committees, it’s unclear what sort of meaningful finding or reprimand could occur.

Had the AG capitulated to the government’s tactics and proceeded to publish her instructions to overturn the Director of Public Prosecutions’ decision in the Canada Gazette, as is required by the Act, she and she alone who would have been held responsible if there were any political fallout from the decision. Those whose conduct pushed her to it against her better judgement would never have had to show their hand.  Their relationship to the corporate defendant, too, would have remained hidden.

Thus, the patina of the attorney general’s independence would be maintained, and with it the appearance that the integrity of prosecutorial independence had been preserved. But we now know that would have been illusory.  

So, if the attorney general is not in fact all that independent in Canada, unlike the U.K., and even if all the government’s behavior was onside, we have the same result: prosecutorial discretion has been folded into political will. To the extent political will is the result of the flexing of behind closed doors corporate clout, powerful corporations can overturn the decisions of prosecutors about their own criminal matters.

In such a circumstance, neither the government itself nor the public interest is safe from corporate interference.

Perhaps most disturbingly, even if there exists a robust respect for the attorney general’s independence in Canada, we have now seen how it can be circumvented by a determined government. It’s simply a matter of shuffling away a recalcitrant AG and bringing in someone more amenable to doing the political bidding. Pressure could even have been brought on that person prior to becoming AG, thus respecting the letter, if not the spirit, of attorney general independence. In the normal course of things, the public would not be able to tell that’s what’s gone on.  

There are other serious flaws to consider. For example, the failure to limit backroom contact between a defendant and the government, necessarily fails to control the timing of such contact. A powerful defendant might secure informal assurances from the government or the attorney general herself that no matter what happens with the prosecution service, at the end of the day it will get a deferred prosecution agreement (with the Clerk of the Privy Council suggesting the defendant directly contact the AG, this isn’t unimaginable). It might do this before entering negotiations with the prosecution service.

A company with the foresight to lobby for new remediation legislation might well think to ensure the outcome of its negotiations with prosecutors from the outset. If they hadn’t figured it out already, if the legislation remains unchanged, if backroom contact is not limited, smart defense lawyers should be taking notes. A corporation might walk into a negotiation about its fate already assured it will avoid prosecution in the end. 

Thus, the negotiating power of the prosecution might be compromised before a negotiation even begins. There is no way “public interest” should justify that violation of the integrity of the process, and no way it is in keeping with the rule of law.

The possibility that a company could know ahead of time it will succeed in getting a deferred prosecution agreement raises another uncertainty. This worry is another way a defendant might turn the negotiations to their unfair advantage, but is more technical in nature. 

If a defendant has good reason to believe it won’t ultimately be prosecuted for crime ‘A’, but will instead receive a deferred prosecution agreement, the provisions seem to allow them to take the opportunity to confess to crimes ‘B’, ‘C’, and ‘D’ during the negotiation, thereby ensuring that evidence of those crimes will never be admissible in any civil or criminal proceedings against them.  

In the end, we have legislation that does nothing to stop a powerful corporation with political leverage from making its wish to avoid prosecution the government’s own. 

Further, the government has the means to act on that wish through its attorney general, who can override the decision of the Director of Public Prosecutions. We now know that the attorney general, whom the legislation makes the responsible decision maker, can be pressured or shuffled by the PMO. Who, in the old saying, is left to guard the guardian? Who, that is, is even available to protect the public interest beyond politicians frequently unable to separate it from their own?

We need laws that put a check on the inherently self-serving nature of corporate culture. When those checks are diminished for the powerful, disaster can follow. Canadians find ourselves in a time when authoritarianism is on the rise amongst our democratic allies and neighbors. We need to keep track of how robust the spirit of the rule of law is in our country. This is not a question about which we can afford to be complacent. The time to shrug and trust is past. Understanding what the legislation says about the people who have enacted it is always important. In an election year, it is urgent. In this election year, in the wake of what’s been brought light by the SNC-Lavalin affair, it is critical. 


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