On Thursday, Prime Minister Justin Trudeau made his latest, and longest, attempt to put the SNC-Lavalin scandal to rest.
But his explanation of what his government was trying to accomplish, through repeated attempts to engage former attorney-general Jody Wilson-Raybould in discussions of how to handle the case, tends to lend credence to the broad strokes of her allegation that she was put under pressure.
Unlike Gerald Butts, the PM’s former principal secretary who appeared the day before at the Commons justice committee, Mr. Trudeau stayed above the minutiae of who said what to whom, when. He didn’t add to the timeline; he didn’t drop private text messages or read notes from meetings.
Instead, he described the big picture, as he and the government want it to be seen: that everything that has happened over the last month is the result of an unfortunate misunderstanding.
He implied that this misunderstanding, which he said surprised him, was born of a lack of reasonableness and open-mindedness on the part of Ms. Wilson-Raybould. He and his officials just wanted to talk about the case, and about options for reconsidering her decision against intervening in the prosecution of SNC-Lavalin.
They just wanted to talk. And Ms. Wilson-Raybould just didn’t want to listen.
“All through the fall, we thought that the minister was open to listening to other points of view and to continuing to reflect on this decision because, in effect, it is in the law that this decision can continue to be made at any moment in time,” said the Prime Minister, speaking in French. “It is at this level that we continued, that my office continued to have conversations at different moments with her. What we see now is that she was not open to changing her mind with respect to these decisions."
In response to a follow-up question, asking him to elaborate further, he said in French:
"What I expect from all of my ministers, and from myself, and by the way it's something that Ms. Wilson-Raybould had always demonstrated as long as I've known her, is that she listens to different points of view and in the end makes her decision. I think that's the way we should operate and it is in effect what I thought she was open to doing during this period. We now learn that she was not."
Everything that Mr. Trudeau described about the relationship between a minister and a prime minister, or a minister and others in government, is correct – except when the minister is the attorney-general.
Any other minister has to bend to his or her colleagues. They have to be team players; they have to take into account the various points of view around the table. And a prime minister has to remove them if they aren’t playing ball. Politics is a team sport, and the PM is the coach. Do what he says or take a seat on the bench.
But an attorney-general is the exception to this rule, because criminal prosecutions must be separate from politics. And in the very rare instance when the attorney-general, as the government’s chief law officer, considers intervening in a case, they must not be swayed by politics or politicians. It’s a fundamental principle of British and Canadian law.
If members of a government are free to approach an attorney-general on other criminal cases – not to lobby, but just to, you know, share their thoughts – we are no longer living in a rule-of-law country. Repeatedly providing the attorney-general with “information” and “context” about a how to resolve a case is highly problematic, especially when that “context” is coming from the Prime Ministers’ Office.
Mr. Trudeau is also right that, throughout a criminal prosecution, prosecutors are always at liberty to change course – including, in corporate cases, by offering a new kind of settlement known as a deferred prosecution agreement.
But that decision is for prosecutors to make. It’s not a political decision. The attorney-general alone has the power to intervene in exceptional circumstances. Unlike other government matters, it’s not up to cabinet or the prime minister. It’s a decision the rest of the government has to stay out of.
If the government encouraged the attorney-general to intervene in the case of SNC-Lavalin, then any misunderstanding that resulted was not because of Ms. Wilson-Raybould’s state of mind, but rather the government’s misunderstanding of the law.