Yes, Lavalin (and other businesses) had lobbied for the introduction of such agreements before they were included in the provisions of the 2018 federal budget – but businesses seeking pro-business measures from governments is as old as Confederation itself. Moreover, the use of this approach offered a prompt resolution of the matter rather than a protracted trial period of uncertain outcome, with an increasingly negative impact on Lavalin, its activities, and its workforce. To the extent that the public were aware of this rather technical arrangement (also available in countries such as Britain and the USA), the response was positive. An Ipsos poll in early 2016 found 80% of respondents in favour of such agreements and there were public consultations on their merits in 2017 before their introduction in the 2018 budget. But when the Director of Public Prosecutions in the federal government received Lavalin’s application for a deferred prosecution agreement, she decided not to accept it and to go to trial instead.
At this point, we do not know what guidelines, if any, the Cabinet (or the Attorney-General Jody Wilson-Raybould) may have given to staff as to how the new deferred prosecution agreements should be handled. Nor do we know what conversations ensued between the Minister and the Director of Public Prosecutions once the latter’s unwillingness to accept such an agreement became known. What does appear certain is that members of the Cabinet, including the Prime Minister, were in favour of such an agreement and allegedly put pressure, in part through the PMO, on the Attorney General to advance this cause. She was clearly not inclined to do so.
Two Key Issues
It seems to me that two issue arise at this point in the story. One concerns potential political interference with the administration of justice, which might have arisen depending on how much, and in what way, the Cabinet and/or the PMO attempted to influence the Director of Public Prosecutions. That, to me, would be by far the most serious issue in this whole matter but it has been almost entirely lost in the ever-escalating, ever-widening series of accusations and hand-wringing.
The second issue is that of Cabinet solidarity or the collective responsibility of the Cabinet. It seems quite evident that the Cabinet collectively, including the Prime Minister, favoured the use of such a deferred prosecution agreement. Given that situation, one appropriate course of action for Wilson-Raybould would have been to resign from the Cabinet on a matter of principle – because she did not agree with the approach the Cabinet planned to take. She would doubtless have received well-deserved praise for sticking with her beliefs. Another appropriate course of action would have been for the Prime Minister, who is responsible for appointing members to the Cabinet, to advise Wilson-Raybould that she needed to fall in line with the rest of the Cabinet or be dismissed from it. This also would have doubtless triggered a strong reaction – but in the form of condemnation of the Prime Minister for the dastardly deed. But Cabinet members are bound by collective responsibility; they don’t get to pick and choose which Cabinet decisions they feel inclined to support. The Minister would have been justified in resigning if she could not agree with the Cabinet’s position and the Prime Minister would have been justified in firing her on the same grounds.
That is not how things unfolded, of course, and the result has been far more damaging to the government, somewhat unfairly in my view, and to the country’s apparently fragile psyche. There was a Cabinet shuffle in which Wilson-Raybould was shifted to a different portfolio in what was interpreted as a demotion for her failure to be a team player, followed by her subsequent resignation from the Cabinet – and then Chicken Little really ran wild.
The Sky Is Falling!
In a new round of interprovincial wrangling, Quebec claims that the rest of the country is picking on it and Alberta is furious that a Quebec firm gets special treatment while the oil crisis is ignored by the federal government. In fact, only a third of Lavalin’s Canadian employees are located in Quebec and the company has extensive operations in Alberta and Ontario. Moreover, when the courts – not the federal government – blocked the latest attempt to get a pipeline approved in the west, the Feds bought the pipeline to keep its future possibility alive and it is hard to imagine what more it could have done to support the West.
Even more extreme and ridiculous, in my view, are the charges that Jody Wilson-Raybould has been the victim of anti-feminist and anti-Native prejudices. The central issue had nothing to do with the sex or race of Wilson-Raybould. Far from facing discrimination, as many have alleged, I suspect that every effort was made not to demote Wilson-Raybould precisely because she was both female and a Native. It is entirely plausible to see the Cabinet shuffle as a way of trying to resolve the impasse over Lavalin by giving the Minister a different set of responsibilities
One would hope that cooler heads will prevail at some point, but that seems unlikely until the Victim narrative loses steam and the opposition parties decide that they have milked the situation as much as they can during an election year. In the meantime, watch out for that falling sky!