Brian Giesbrecht is a retired provincial judge and a senior fellow with the Frontier Centre for Public Policy.
Nearly a month ago, Conservative Leader Andrew Scheer called on the RCMP to investigate the Prime Minister’s conduct in the SNC-Lavalin case. Ethics Commissioner Mario Dion had found that the Prime Minister had breached Section 9 of The Conflict of Interest Act, when he repeatedly and improperly pressured then-minister of justice and attorney-general Jody Wilson-Raybould to consider a deferred prosecution agreement with SNC-Lavalin. Ms. Wilson-Raybould had made clear to the Prime Minister that she would do no such thing.
Since then, the RCMP have been examining the issue closely; however, they have not launched an official investigation. As reported by The Globe and Mail on Tuesday, the RCMP’s examination has been blocked by the federal government’s refusal to lift cabinet confidentiality.
The RCMP says it will pause its examination during election season, but it should reconsider.
Section 139 of the Criminal Code states a person who “willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding” is guilty of obstruction of justice. In the Prime Minister’s case, the only explanation he has given for his actions is that he did whatever he needed to do “to protect Canadian jobs.” Such an explanation would not be a defence in court. (If charged, tried and convicted, the Prime Minister’s explanation may be taken into consideration at the sentencing stage.)
An RCMP investigation should have been called long before the ethics commissioner made his findings, and long before the election campaign was under way. In fact, in February, five former attorneys-general made a similar request to the RCMP.
Mr. Dion’s report used strong and clear language in describing Mr. Trudeau’s “flagrant attempts to influence Wilson-Raybould” and how the Prime Minister “sought to influence Ms. Wilson-Raybould both directly and through the actions of his agents” and “circumvent, undermine and ultimately attempt to discredit the decision of the Director of Public Prosecutions.”
Judicial proceedings against SNC-Lavalin were under way when all of this took place.
The company was casting about for a way out of its legal quagmire, and the Prime Minister and his office – with the very major exception of Ms. Wilson-Raybould and her staff – were actively assisting the company in its attempts. It could be argued the Prime Minister and his staff were aiding and abetting the defendant that the Justice arm of his own government was trying to convict.
Would a judge find the Prime Minister guilty of obstructing justice or attempting to obstruct justice under these circumstances? That is not at all clear – but a case can be made.
The single most damning piece of evidence in the case against the Prime Minister is that the ethics commissioner was unable to get a full picture of what actually occurred because he was denied access to vital evidence. Nine potential witnesses came forward with evidence potentially relevant to Mr. Dion’s investigation, but the witnesses felt constrained by cabinet confidence. Mr. Dion asked that the witnesses be allowed to speak with him candidly, but the request was denied. Justin Trudeau’s arrogant refusal to waive privilege, which hindered Mr. Dion’s investigation, now hinders the federal police, too.
Mr. Dion concluded his report saying “Decisions that affect my jurisdiction under the Act, by setting parameters on my ability to receive evidence, should be made transparently and democratically by Parliament, not by the very same public office holders who are subject to the regime I administer.”
The buck must stop with the Prime Minister, accused by the ethics commissioner of denying access to critical information for the report Mr. Dion was mandated to write. The denial of the ethics commissioner’s reasonable request – and arguably, that of the RCMP to examine witnesses – smacks of obstruction.
The fact that the RCMP brass have decided to wait until the fall election is over before they resume examination should give us pause. Consider a scenario that has the Liberals being returned to power, and criminal charges being subsequently laid against the Prime Minister and possibly some of his subordinates. There would be chaos, and a very angry Canadian public.
The RCMP should rethink.
Perception is everything: If the RCMP had launched an investigation – or continued with its examination, even during election season, it would have been accused by Liberal supporters of adding more ballast to an already creaking Liberal ship especially during the campaign.
And because the RCMP are choosing to stop their examination because of the October election, it will likely be accused by opposition supporters of bowing to its political masters.
Either way, the pivotal question remains: In the best interest of justice, should the RCMP go forward with an investigation? The answer is clear: Yes. No one is above the law.
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