David Moscrop is a writer and political commentator. His first book Too Dumb for Democracy? will be published this month.
In his 1960 play A Man for All Seasons, Robert Bolt writes a scene in which the 16th-century English lawyer William Roper presses his father-in-law Sir Thomas More, beleaguered adviser to King Henry VIII, about his defence of a man he deems to be “bad.”
“So now you’d give the Devil benefit of the law!” Roper says.
“Yes,” More replies. “What would you do? Cut a great road through the law to get at the Devil?”
Roper retorts, “I’d cut down every law in England to do that!”
The exchange captures the spirit of the inherent, inexorable tension between politics and the rule of law – and reminds us how long this has been a going concern. In democracies, we elect individuals to represent us, to make policy and law on our behalf. But because our representatives are elected in short cycles – and because they tend to prefer to be re-elected – political calculations are never far from their minds when making or executing these policies or laws.
Day to day, that tension lies mostly buried just beneath the surface here in Canada’s parliamentary democracy. But every so often, it gets dug up for everyone to see in a display of political theatre that’s as dramatic as a Renaissance king’s court.
On Wednesday, former justice minister and attorney-general Jody Wilson-Raybould gave hours of extraordinary testimony to the House of Commons’ Justice and Human Rights Committee. She spoke of sustained and unreasonable pressure placed on her from the Prime Minister, his office and the Privy Council over the issue of whether to grant the Quebec engineering firm SNC-Lavalin a deferred prosecution agreement (DPA) rather than pursue criminal charges. Ms. Wilson-Raybould opposed a DPA and backed the decision of the director of public prosecution, and she made that well known to her colleagues. The Prime Minister and those in his firmament disagreed. But the attorney-general is meant to be independent from the government when it comes to such matters, and her decision ought to have been final. That should have been that.
We now know it wasn’t. The Prime Minister and his office kept up the pressure. Then, the tension between the law and politics in this instance grew to be too much; Ms. Wilson-Raybould was removed from the justice ministry and her role as attorney-general, and was demoted to a new ministry. She left cabinet altogether a short while later.
Ministers serve at the pleasure of the Prime Minister – he can appoint or dismiss them as he pleases – and the Prime Minister’s Office insisted that the SNC-Lavalin deal had nothing to do with Ms. Wilson-Raybould’s demotion. But her telling of events makes the move appear cynical and underhanded, and gives the sense of an end-run around the rule of law. If the DPA process is meant to be independent of the Prime Minister and his office, but he can cycle through justice ministers as he pleases without giving the public reasons until he finds one who will do as he wishes, is the process truly independent?
Mr. Trudeau has denied that Ms. Wilson-Raybould’s interpretation of events is correct. And he has repeatedly cited the almighty job in defence of his office’s behaviour, leaning into Ms. Wilson-Raybould’s testimony to suggest he was simply working to keep SNC-Lavalin from moving out of Quebec. He threaded that needle carefully in a Wednesday-night event in the riding of Outremont, Que., after her statements, defending a Liberal government that “has consistently stood up for Canadian jobs, consistently defended Canadian jobs, while defending our institutions and the independence of our judiciary.”
The muddled message thus became: “We didn’t do anything wrong. But if we did, we did so for the right reasons.”
It’s entirely plausible that the Prime Minister, his staff and Privy Council officials genuinely believe they did the right thing. Jobs and the economy are central to the country’s well-being. The Liberals also, no doubt, believe that they are the best party to govern Canada. As Ms. Wilson-Raybould said a PMO official told her, “We can have the best policy in the world, but we need to be re-elected.” So, ensuring that the Liberals remain in office – to, among other things, protect and grow the economy and preserve job growth – is critical. That means delivering the goods. Losing jobs at SNC-Lavalin, headquartered in the critical battleground of Quebec, would be a disaster that risks compromising the entire plan. It’s all related, Mr. Trudeau will continue to insist in the coming days, and justifiable, too, because the ends justify the means.
But the logic of power-for-the-good in politics is insidious and self-reinforcing. You think you’re the right person for the job, and when you win, that only makes you more certain of that. And because you think you’re the right person for the job, you think you’re going to do good. Otherwise, you wouldn’t be the right person. Right? Then, when you get a chance to start doing good, you want to keep your job, to keep doing that good.
Of course, no elected representative or public servant wakes up in the morning and asks, “How can I destroy my country today?” But the slippery-slope reasoning that makes people believe that their good is better than others’ quickly leads to the intoxicating conviction that they ought to be given extraordinary leave to push boundaries when they need to be pushed. Sometimes, that means bending the law – or even breaking it – in the name of the greater good. And yet, that is the tip of a spear that threatens to pierce the armour of democracy and the rule of law, impaling it inch by inch, act by act.
That’s when we get scandals. Corruption. A rise in cynicism. A decline in public trust. That’s the very last thing we need today, in an era of widespread democratic recession and before an election that may be vulnerable to being hijacked by bad-faith no-goodniks.
Now, remember William Roper, the headstrong lawyer who vowed, with moral certainty, to raze down laws in pursuit of the Devil? On its surface, his instinct – that evil is not deserving of protection from our institutions – can feel right and righteous. But he’s wrong. And Thomas More rejects his thinking out of hand: “And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?”
Every time rigorous standards and expectations around the rule of law are violated, we flatten part of the barricades that we’ve erected to protect ourselves from something far worse than an unwelcome electoral outcome or even job losses: a rule-of-law democracy unworthy of the name. Good intentions or not, the Devil will surely catch us, then.