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Opinion Can prosecutorial independence and the public interest ever truly be reconciled?

Kent Roach is a professor of law at the University of Toronto. He co-hosted a consultation with Anne McLellan on her report, but did not participate in its writing.

Two detailed and important reports stemming from the SNC-Lavalin controversy by two very different sources – Ethics Commissioner Mario Dion and former attorney-general Anne McLellan – have landed with a thud.

But the fact that the two reports do not reference each other is unfortunate: Mr. Dion’s concerns about protecting prosecutorial independence and Ms. McLellan’s concerns about ensuring that prosecutorial decisions are informed by legitimate but not partisan public-interest considerations, may be difficult to reconcile going forward.

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The two reports agree on some things. They both endorse the Shawcross principle, as articulated by a British attorney-general in 1951 as the “appropriate yardstick”: that the attorney-general should initiate consultations about public-interest matters and make the ultimate prosecutorial decision. Moreover, they agree that partisan considerations and appeals are improper.

Mr. Dion found four instances that improperly violated the Shawcross principle and furthered a private interest contrary to the Conflict of Interest Act. The prime minister’s political staff raised concerns about the Quebec election, federal re-election and SNC-Lavalin being located in the Prime Minister’s home province between September and December of 2018. Mr. Trudeau himself made reference to being a member of Parliament from Papineau in his Sept. 17, 2018, meeting with then attorney-general and justice minister Jody Wilson-Raybould.

The fact that these basic mistakes were made by the Prime Minister and his legally trained political staff confirms the need for Ms. McLellan’s recommendation that those in government should be educated about the basic constitutional principle of prosecutorial independence. But beyond the more straightforward case here around improper partisan consideration, matters become murkier and the reports diverge.

Ms. McLellan recommends that public-interest consultations generally should be initiated by the attorney-general, should be in writing, should exclude political staff, and should not take place at the cabinet table.

In contrast, Mr. Dion seems skeptical about whether partisan interests can ever fully be separated from the public interest. He states it “would be exceedingly difficult” for “an attorney-general to disassociate genuine public interests from partisan interests when those considerations are advanced by cabinet colleagues and their staff.”

Mr. Dion effectively expands improper partisan considerations under Shawcross to include “private interests." He reasons that because any public interest was “inextricably linked” to SNC’s private interests, “Mr. Trudeau could not properly put forward any arguments involving public or private interests to the attorney-general” [emphasis in the original]. This seems to reject the possibility, in my view, implicit in the Shawcross principle, that the public interest can sometimes transcend private interests that will inevitably be in play in many policy contexts.

Another complication is that the deferred prosecution agreement law also prohibits consideration of the “national economic interest” by either the director of public prosecutions or the attorney-general. Neither report reaches a clear conclusion on whether that includes the job losses that Mr. Trudeau maintains were his primary concern. Neither the director of public prosecutions nor the attorney-general has explained how they approached this difficult but critical issue. Mr. Dion, for his part, concludes that no one should question such prosecutorial decisions. As Ms. McLellan suggests, however, prosecutors should be more willing to explain their prosecutorial decisions.

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The path forward is not entirely clear. The education and guidelines about legitimate public-interest consultations recommended by Ms. McLellan are obviously needed. They can deal with easy cases: there should be no partisan appeals or sustained pressure on the attorney-general or director of public prosecutions. Consultations should generally be initiated by the attorney-general, in writing, and not involve political staff.

But there will be more difficult cases. For example, a cabinet minister may feel compelled to reveal new national security, macro-economic or international-relations information to the attorney-general as it affects a prosecutorial decision. There is a danger that such consultations might run afoul of Mr. Dion’s broad approach to prosecutorial independence and private interests.

In addition, the attorney-general’s extraordinary power to intervene in the director of public prosecutions’ decisions, as defended by Ms. McLellan, may practically be a dead letter. This preserves prosecutorial independence, but at the expense of democratic accountability.

The Prime Minister and his staff made clear errors by applying pressure and making partisan appeals to Ms. Wilson-Raybould. The ultimate price that they will pay will be determined on election day.

At the same time, it would be unfortunate – and perhaps, even dangerous – if future attorneys-general were placed in a bubble where any public-interest representation to them from other parts of government was seen as inherently partisan and improper.

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