Imagine you are the Prime Minister. Imagine it’s mid-February, 2019.
The Globe and Mail has, one week earlier, broken the news that former justice minister and attorney-general Jody Wilson-Raybould faced pressure from the Prime Minister’s Office to intervene in the criminal prosecution of SNC-Lavalin. Evidence and details confirming the allegation are dripping out day by day, but Ms. Wilson-Raybould has not yet appeared before the House of Commons justice committee. The Rubicon has not yet been crossed.
Imagine that, on this day in mid-February, your advisers come to you and say, Prime Minister, this situation will grow into the worst crisis our government has ever faced. We must respond. There are two paths we can follow.
The first path involves the PM acknowledging error and apologizing. The head of government could say that, although he and his government will always “stand up for Canadian jobs,” he now recognizes that, while claiming to have been pursuing that goal, his officials crossed the line.
Pressure was brought to bear on the attorney-general, violating rules of prosecutorial independence. That should never have happened, because in Canada the rule of law is fundamental. Mistakes were made. But steps will be taken to ensure they never happen again. The government is sorry.
Name the error. Make it right. End the story.
Call it the path of reconciliation – reconciling the Liberal Party with the whistle-blowers within its ranks, and reconciling the executive branch with the rule of law.
Or there’s the second path: Refuse to apologize, refuse to admit error, refuse to acknowledge the clearly visible and spreading spot. But, if you choose that route, within a few weeks you’ll lose two of your most important ministers, your closest adviser and the most senior member of the civil service. A lot of casualties, yet no stanching of the wound.
Which path would you choose?
There is still much that Canadians do not know about the SNC-Lavalin affair. But it is at least clear, beyond any doubt, that the Trudeau government made repeated attempts to influence the attorney-general of Canada into taking the extraordinary step of overriding the independent director of public prosecutions and offering SNC-Lavalin a deferred prosecution agreement.
In theory, there are compelling legal arguments in favour of using DPAs to go after alleged corporate wrongdoers. That’s why the option is part of Canadian law.
But in practice, in a real-world case such as that of SNC-Lavalin, decisions regarding the prosecution must be left to prosecutors, or, exceptionally, the attorney-general. If the rule of law means anything, politicians, political staff and even the Prime Minister cannot have a hand in deciding who gets charged and who doesn’t, or who gets a plea agreement and who goes to trial.
It’s hard to overstate how important this is. It’s deeper than the Charter of Rights, and far older. It’s foundational.
The government has tried to make this all about Ms. Wilson-Raybould. All sorts of rumours have been spread about her – that she was difficult to work with; that she recommended a conservative judge for a Supreme Court vacancy; and that, worst of all, she is a politician focused on self-promotion.
Even if all of that were true, it’s not relevant to the real issue, which is how the government got all handsy with the SNC-Lavalin prosecution. It’s not about Ms. Wilson-Raybould’s personality.
The Commons justice committee could have done the government a favour by holding a full round of hearings, getting to the bottom of the matter and delivering a report. Instead, the Liberal majority quickly shut itself down. That was a mistake. It denied the legislative branch of government the opportunity to do what it is supposed to have the power to do, namely oversee the actions of the executive. Instead, government by PMO continues. But that’s doing the PM, and his government, no favours.
And the worst part of this story is that Liberal political miscalculation isn’t the worst part of this story. It’s a sideshow. Each time the government tries to obfuscate the real issue, it not only undermines its own credibility, it waters down principles established long before the Trudeau government came to power. They’re carved into the bedrock of Canadian law. Or at least they’re supposed to be.