CONSTITUTIONAL OR POLITICAL CRISIS ? PROSECUTORIAL INDEPENDENCETHE PUBLIC INTEREST AND GENDER IN THE SNC-LAVALIN AFFAIR.

• Author: Bezanson, Kate
• Position: ARTICLES

INTRODUCTION

This paper attends to a central question: was the SNC-Lavalin affair a constitutional or a political crisis? It assesses this question via an examination of three main considerations: (I) an analysis of the principle of prosecutorial independence and related constitutional conventions; (II) an analysis of competing interpretations of the public interest; and (III) an analysis of the particular confluence of identity factors--specifically gender and Indigeneity--that significantly inflected this particular case.

For a period of several months beginning in early 2019, a national political tumult unfolded in Canada involving claims of political interference in prosecutorial independence. Canada's former minister of justice and attorney general, Jody Wilson-Raybould, (1) alleged that she had been subjected to inappropriate political pressure to use a brand new Criminal Code provision to seek a deferred prosecution agreement (DPA) for SNC-Lavalin, a large flagship Canadian company facing bribery charges. (2) These allegations came to light after Ms. Wilson-Raybould was shuffled to Veterans Affairs, a portfolio from which she subsequently resigned. In a series of widely publicized meetings, the House of Commons Standing Committee on Justice and Human Rights heard testimony from some of the country's most senior public servants, ministers, political staff, and legal scholars. Following these, both Ms. Wilson-Raybould and Dr. Jane Philpott (former minister of Indigenous services and new Treasury Board President, who also resigned) were removed from the Liberal caucus and now sit as independent MPs. In addition, the Clerk of the Privy Council retired and the Prime Minister's Principal Secretary resigned. Pitched political and legal debate encircled these developments, centering on the constitutional principles and conventions of prosecutorial independence, the rule of law, and responsible government (principally Cabinet solidarity, Cabinet confidentiality, and confidence in the government). The gender and Indigenous identity of the former minister of justice and attorney general also figured centrally in the public interpretation of both the events and the constitutional issues at play. Ms. Wilson-Raybould asserted that nothing illegal had transpired regarding the political pressure she experienced as attorney general, (3) but that the tenability of sustaining the combined political and prosecutorial roles of minister of justice and attorney general merited considered examination. (4)

This paper suggests that the SNC-Lavalin affair was principally a political rather than a constitutional crisis. Despite this, greater clarity is urgently required regarding the boundaries of politics and prosecutorial independence in the relationship between an attorney general and Cabinet colleagues generally, and in relation to the newly introduced DPA regime specifically. The paper finds that this crisis was one born of competing legitimate interpretations of key provisions of the DPA regime, of what constitutes the public interest, and of what comprises appropriate and inappropriate political pressure. The crisis was compounded by a communications breakdown between government colleagues and the Attorney General. Further, it was exacerbated by competing understandings of when, if at all, an attorney general's decision can be said to be final. A gendered, and at times intersectionally racist, invocation of pressure, which drew from discourse used predominantly in relation to feminist elucidations of consent and sexual violence, infused and, at times, confused the constitutional conversation about political pressure and prosecutorial independence. The principle of prosecutorial independence was further muddied in this case by the Attorney General not resigning from her position and by a lingering question of whether, in her capacity as Minister of Justice, Ms. Wilson-Raybould supported the Criminal Code provision introducing the DPA. The political, rather than constitutional, character of the crisis was underlined by both Ms. Wilson-Raybould and Dr. Philpott suggesting that the lengthy public turmoil might have been assuaged or averted if the Prime Minister had apologized. The credibility of the claim of damage to the constitutional principle of prosecutorial independence was undermined, perhaps lethally so, by the assertion that its substance was so meagre that its remedy was an apology.

This paper proceeds in five parts. First, it provides a contextual framework for the issues surrounding the SNC-Lavalin affair. Second, it reviews the legislative framework of the newly introduced deferred prosecution regime in Canada. It does so in concert with an analysis of the distinct roles of the director of public prosecutions and the attorney general, outlining the scope of their roles vis-a-vis their consultation mechanisms, independence, and the processes for consent and intervention on the part of the attorney general. Third, it examines the constitutional issues that arise in relation to prosecutorial discretion in this case, with particular attention to the constitutional principle of prosecutorial independence and to conventions such as the Shawcross doctrine (the leading framework governing the relationship between the attorney general and government colleagues regarding the boundaries of the former's prosecutorial independence). It additionally considers the remedies of apology versus resignation. Fourth, it asks: what constitutes pressure ? Here, it weighs the competing legitimate interpretations of what constitutes the public interest, lawful advocacy and context giving, and the boundaries of the Shawcross doctrine that encircled the developments in the SNC-Lavalin affair. Fifth, it examines the confluence of gender and other identity issues that are specific to the case. It does so in relation to social media, news media, and other public discourses that deployed language evocative of male violence against women (such as the term "pressure") and at times also tokenized Indigenous culture, and to a claim by Ms. Wilson-Raybould that misogyny was part of the sustained political interference she alleged in her exercise of prosecutorial discretion. It concludes by querying whether the potential remedy, currently under review, of separating the roles of minister of justice and attorney general is merited, or if other direction or structural reform might better serve to bolster prosecutorial independence in Canada. The paper concludes that the Shawcross line was not crossed, but that greater clarity is urgently required on its boundaries and application. The SNC-Lavalin affair was thus principally a political, rather than constitutional, crisis.

Recognizing that there is both little case law and incomplete information on the public record related to the issues in this matter, the analysis for this paper draws heavily from publicly available documents and testimony (Hansard, committee proceedings, and reports), relevant statutes and case law, scholarly analysis regarding constitutional principles, conventions and deferred prosecution regimes, and where appropriate, published legal commentary, and to a lesser extent, media commentary.

1. CONTEXTUALIZING THE SNC-LAVALIN AFFAIR

   The SNC-Lavalin affair dominated the Canadian political landscape for much of early 2019, bringing constitutional questions to centre stage in Parliamentary proceedings and public discussion. There was significant debate regarding the boundaries and scope of the constitutional conventions of Cabinet confidence and the extent to which, and in what areas, a former attorney general is bound by (and can be released from) solicitor-client privilege in her role as an advisor to the government. Senior Cabinet and public service officials testified before the House of Commons Standing Committee on Justice and Human Rights, and the independent Parliamentary Conflict of Interest and Ethics Commissioner launched an investigation. (5) Parliamentary business was significantly disrupted, including the delivery of the government's 2019 budget, in which the Conservative Party staged a protest and walk-out in relation to the case. (6) Internationally, Canada's diplomatic relationship with China was damaged in an ongoing extradition case as the perception of political interference in the SNC-Lavalin affair undermined Canada's claim to be a "rule of law" country. (7) Additionally, as Canada is a signatory to the 1997 Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, (8) the OECD Working Group on Bribery publicly raised concerns about the allegations of political interference in prosecutorial independence. (9)

   The origins of the criminal case at issue against SNC-Lavalin began in 2015 when the RCMP laid fraud and corruption charges against the company and its subsidiaries in relation to its operations in Libya. The RCMP alleged that between 2001 and 2011, the large Montreal-based construction and engineering company spent close to $50 million in bribes to assist in securing government contracts. (10) SNC-Lavalin officials have been charged and some convicted of bribery in other jurisdictions, including in Quebec and Bangladesh. The World Bank has banned the company from bidding on projects it funds for 10 years, beginning in 2013. (11) The Libya case is at the preliminary hearing stage, and SNC-Lavalin has pleaded not guilty to the charges. (12) A conviction could result in the company being barred from federal government contract bidding in Canada for up to 10 years. (13)

   Until 2018, Canada had no statutory framework for remediation agreements for companies charged with bribery of foreign officials. In 2017, the government initiated consultations regarding deferred prosecution agreements and tabled a report supporting developing a deferred prosecution...