Ralph Heintzman is a senior fellow of Massey College in the University of Toronto. He previously held senior roles in the public sector and received the Vanier Medal, Canada’s highest honour in public administration.
It has proven surprisingly difficult to divine the real meaning of the SNC-Lavalin affair.
But, to see its real meaning, you have only to look south of the border. Since becoming president, Donald Trump has asserted his right to interfere in the administration of justice. The results can now be seen in the Roger Stone and Michael Flynn cases.
A political confederate of Mr. Trump’s, Mr. Stone was convicted of lying to Congress, obstruction of justice and threatening witnesses. In mid-February, when Justice Department prosecutors sought a seven- to nine-year prison sentence for him – and only hours after Mr. Trump complained this was “horrible and very unfair” – Attorney-General William Barr dutifully used his powers to reduce the sentencing recommendation – prompting the four federal prosecutors to resign immediately from the case. Mr. Barr tried to cover his tracks by complaining publicly about the president’s tweets. But this only led Mr. Trump to assert he has the “legal right” to instruct the attorney-general in criminal cases. In fact, Mr. Trump says: “I’m actually, I guess, the chief law enforcement officer of the country.”
He proved it last week when Mr. Barr dropped charges against Michael Flynn, the president’s former national security advisor, even though Mr. Flynn had already pleaded guilty to lying to the FBI. None of the front-line prosecutors who worked on the file signed the motion to dismiss the charge: it was signed instead by the interim U.S. attorney for the District of Columbia, a long-time advisor to Mr. Barr and one of his own political appointees. Some 2,000 former Department of Justice employees signed an open letter supporting the career prosecutors, and denouncing Mr. Barr’s partisan political interference in law enforcement as worthy of an “autocracy.” “A politicized and thoroughly corrupt Department of Justice is going to let the president’s crony simply walk away,” said the chair of the House of Representatives judiciary committee. Mr. Trump himself tweeted triumphantly that there is “MUCH more” of this kind of political interference in the justice system still to come.
The Roger Stone and Michael Flynn cases in the U.S. show us the real meaning of the SNC-Lavalin affair in Canada. They show the grave risk about which Jody Wilson-Raybould warned when she told the Prime Minister it was wrong to attempt to influence the prosecutorial decision in the SNC-Lavalin case.
The firewall between politics and prosecutions distinguishes liberal democracies like Canada from dictatorships like China or Russia. In autocratic countries, the justice system is just another way to exercise political power. Prosecutions are launched – or not – to punish political rivals and help political friends. In liberal democracies, by contrast, there is normally a firewall between political decision-making and criminal prosecutions – one of the fundamental safeguards of freedom under law.
In common-law countries, the firewall is established by what is sometimes called the Shawcross principle, named for a former British attorney-general. This dictates that final decisions on prosecutions rest, constitutionally, with the attorney-general “applying his judicial mind.” Nevertheless “he is not to be put, and is not put, under pressure by his colleagues in the matter.”
The problem with this approach is that it is so fragile. It depends on attorneys-general and their political masters understanding the convention and respecting it. In the United States, the Shawcross principle is dead, or dying, because the president denies it. In Canada, the SNC-Lavalin case put it under threat here, too. The actions of the Prime Minister and his office were “improper,” the Ethics Commissioner ruled, “since they were contrary to the Shawcross doctrine and the principle of prosecutorial independence and the rule of law.”
The lesson we should learn from the SNC-Lavalin affair, and from the U.S., is that we can no longer rely on conventions to preserve the firewall between politics and prosecution.
What should we do? One reform proposed here is to separate the roles of minister of justice and attorney-general – to split up, that is, the “judicial” and political roles. This would be a step in the right direction. But it needs to be accompanied by much stronger protection for the Shawcross principle, including more stringent legal restrictions on the attorney-general’s authority to issue a directive to the director of public prosecutions, or to take over a case.
The lesson of the SNC-Lavalin affair and of events in Trumpland is both the importance and the fragility of the firewall between politics and prosecutions. We should learn from them to strengthen the firewall, so our criminal justice system remains a protection for freedom under law, and does not become, as elsewhere, simply a tool for the private and political interests of those in power.
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