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opinion

David Butt is a Toronto-based criminal lawyer and former prosecutor.

At the heart of the nine-alarm Jody Wilson-Raybould political inferno currently consuming the country is the proper role of a Crown prosecutor in the Canadian justice system; a job that, significantly, Ms. Wilson-Raybould once held. Yet, Crown prosecutors are something of an enigma. Their daily case load couldn’t be more dramatic: skullduggery, stark horror, unhinged passion and unbridled greed. Novelists would give their right arm for the storylines that Crown prosecutors, dressed in department-store blandness and morbidly media-shy, treat with such quiet, technocratic professionalism as to make them seem boring.

But don’t let these tepid appearances fool you. Because what is driving them couldn’t be more important. Inside Canadian Crown prosecutors’ offices is something we should all know about and value: a deeply entrenched ethic of independence, and an equally deeply entrenched ethic of making decisions on how to prosecute criminal cases based solely on the evidence and the law. It is not flashy, it is not necessarily politically saleable, but it is grounded in deep respect for the rule of law. Such is the commitment to independence in Crown prosecutors’ offices that even the lowliest junior prosecutor is empowered to make their own independent decisions about how to prosecute their cases, free from any obligation to follow direction from even the most powerful political office holder who might, and who occasionally has, picked up the phone to try to exert influence.

The twin notions of rigorously independent decision making and respect for the rule of law are held in such high regard that in most Crown prosecutors’ offices there exists something close to disdain for the often empty, ever-mutating and frustratingly loose rhetoric that characterizes much partisan political discourse. In other words, the world of the prosecutor and the world of the politician are themselves worlds apart.

The dramatic gulf between the professional lives of prosecutors and politicians is no accident. It is carefully cultivated to commendable degrees in Canada because it is nothing less than one of the very best indicators of the health of a democracy.

Every dictator worth his salt uses the instruments of criminal justice – police, prosecutors and judges – to pursue his own self-aggrandizing ends by imprisoning (or worse) political opponents. So conversely, the health of any contemporary principled democracy worthy of the name will be largely defined by the extent to which those agencies of criminal justice function independently of interference from political office holders.

This crucial indicator of the health of a democracy cannot be measured by reading the laws in place mandating separation of prosecutors and politicians. Writing those laws is easy; and disregarding them easier still. Rather, the health of a democracy can be measured in this regard only by looking at the daily functioning of prosecutors’ offices, and whether those offices maintain a culture of independence from political interference.

It is perhaps frightening to think that something so essential as the vibrancy of democratic life in such a large and stable country depends so heavily on something as inscrutable and intangible as the cultural values inside a bunch of obscure government offices. But such is the fragility of democracy. And the better we understand that fragility, and are vigilant around it, the safer we will be.

In this context, Ms. Wilson-Raybould’s sacrifice of her political career could not have happened in a more principled way or for a more important cause.

Ms. Wilson-Raybould began her career as a Crown prosecutor, and it showed in the best possible way. In her appearance before the House of Commons Justice Committee, she came across as the most principled Crown prosecutor we could hope for. Ms. Wilson-Raybould made the most of her opportunity to speak her truth. On Wednesday, she appeared humble yet eloquent and recounted alleged pressure she faced from the Prime Minister, his staff and other officials to intervene in the SNC-Lavalin case by urging the Director of Public Prosecutions to reach a deferred prosecution agreement.

During her testimony, credibility oozed from her pores, in a manner that was a credit to her Crown prosecutor mentors, and a credit to her internalized ethical compass. Rising to high political office led not in the slightest to the compromise of essential prosecutorial ethics on her part. Hers was a journey to a very public pinnacle of power in which she appears to have remained true to the essential democratic values imbued in her as an anonymous, fledgling junior prosecutor. So even as she fell from high office, she landed as a giant of virtue, beside which her political superiors seem deplorable.

Just how vulnerable is prosecutorial independence to political interference? Very. Numerous weighty political actors right up to the Prime Minister allegedly tried to inappropriately influence Ms. Wilson-Raybould. Laws cannot prevent these easily executed and ominous tactics of inappropriate influence from serving their destructive purposes. And the temptation to deploy them in pursuit of power in the intensely competitive forum of politics is constant. So we are left to depend heavily on the strength of character of prosecutors imbued with an ethic of independence to resist attempts at inappropriate influence when no one else is there to call it out: a strength of character that Ms. Wilson-Raybould demonstrated to an essential and truly noble degree.

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