#1. The Canadian Parliament passed a law that included an option for companies to pursue a deferred prosecution agreement with the federal government, allowing them to remediate for wrongdoings without pleading guilty to them. This option, also available in countries such as Britain and the United States, provides for a prompt resolution of the issue in question rather than a protracted trial of uncertain outcome.
#2. A senior official in the Public Prosecution Service of Canada (an office of the Attorney-General) was willing to accept a deferred prosecution agreement from Lavalin, but the Director of Public Prosecutions in that office decided not to entertain such an agreement but to go to trial instead.
#3. The Prime Minister and Cabinet considered how this matter should be handled and clearly felt that it was preferable to allow the deferred prosecution agreement – in large part because this option would have a less adverse impact on Lavalin, its employees, and the economy.
#4. One member of the Cabinet (Jody Wilson-Raybould), who was both Attorney-General and Justice Minister, was determined not to allow Lavalin the deferred prosecution agreement and was unmoved by the views of her Cabinet colleagues and others who communicated with her.
#5. A Cabinet shuffle prompted by the resignation of a member of the Cabinet, saw Wilson-Raybould shifted to the position of Minister of Veterans Affairs, from which she has recently resigned.
The Alleged Abuses
#1. The rule of law was violated. [How can this be the case when the whole issue related to how one would apply a piece of legislation passed by Parliament?]
#2. The Cabinet’s actions were motivated by political considerations and the fact that a federal election is less than a year away. [To state this charge is to illustrate how ludicrous it is. If there was ever a federal government (or any government) that did not weigh its decisions against the possible impact on politics and election success, I’d love to hear about it.]
#3. These nefarious political considerations favoured Quebec, while the West – and especially Alberta – was again ignored by the federal government. [In fact, only one-third of Lavalin’s Canadian employees are located in Quebec and the company has extensive operations in Alberta and Ontario.]
#4. The Prime Minister, other members of the Cabinet, and some senior staff, put excessive and improper pressure on Wilson-Raybould and, thereby, perverted the administration of justice in Canada.
[This brings us to the central issue (in my view) and – as pointed out in a recent analysis by a Law School Dean – that is the inherent conflict of interest when one person is both Attorney-General and Minister of Justice. As Minister of Justice, Wilson-Raybould had a political role of developing policy and drafting legislation for the Justice Department, while as Attorney-General she was responsible for providing legal advice to Canada’s executive branch and representing the government in legal proceedings pursuant to that legislation. In both portfolios she was subject to the norms of Cabinet solidarity and the collective responsibility of members of the Cabinet. Some countries deliberately separate these two portfolios to minimize such a conflict. In some cases, the Attorney-General is not even a member of the Cabinet – an arrangement Canada might be wise to consider in light of this recent fiasco.
Since the Cabinet as a whole clearly favoured the use of a deferred prosecution agreement and Wilson-Raybould did not, an appropriate course of action would have been for her to resign on a matter of principle. It would also have been appropriate for the Prime Minister to dismiss her from the Cabinet under the circumstances, but instead she was shuffled to another portfolio to remove her from this apparently unresolvable impasse.]
Lavalin is hardly a poster boy for ethical corporations. The staff in the PMO were doubtless throwing their weight around (as has increasingly been the case, most notably under the previous Harper regime). The Liberals have provided a classic example of how not to manage a crisis. The only one to emerge unscathed – and, indeed, widely praised – is Wilson-Raybould. However, I have yet to hear any reason why she felt so strongly that it was necessary to reject the deferred prosecution agreement with Lavalin, especially in the face of the clear preference of all her Cabinet colleagues.
So, a messy business for sure. Hardly the finest hour for Canadian politics and a black eye for the Liberals and their “sunny ways.” But can we please stop the nonsense about Canadian democracy and the rule of law being at death’s door.