There is no judge in this case. At the justice committee hearings into the SNC-Lavalin affair on Monday, experts dissected the principles involved. But there is a practical issue: There is no one to provide the definitive judgment that matters.
The key question is whether Prime Minister Justin Trudeau or his aides and officials improperly put pressure on former attorney-general Jody Wilson-Raybould to order a deferral of the bribery prosecution of the company and a settlement known as a remediation agreement.
At the moment, no one has the jurisdiction to issue a definitive conclusion on that.
Mr. Trudeau and the most senior civil servant, Clerk of the Privy Council Michael Wernick, have suggested it will be up to ethics commissioner Mario Dion to judge. In testimony to the Commons justice committee last Thursday, Mr. Wernick suggested the committee’s hearings were unnecessary because the ethics commissioner could do a better, and less biased, job.
But the ethics commissioner does not have a mandate to decide whether the Prime Minister meddled with a prosecution.
Mr. Dion’s job is to look for conflicts of interest, and that means conflicts that involve private interests. So, if the Prime Minister had shares in SNC-Lavalin or the chief executive officer of the company was his best friend, for example, then pressing the attorney-general about it might be a conflict of interest for the ethics commissioner to judge. But if the Prime Minister meddled in a criminal prosecution for political reasons, that is not the ethics commissioner’s business.
Mr. Dion’s full title is Conflict of Interest and Ethics Commissioner, and he is more the former. He administers and enforces the Conflict of Interest Act, and a separate conflict code for MPs. He has opened an investigation under Section 9 of the act, which bars public office-holders from seeking to influence another person’s decision to further their own private interests. But there is no clear indication private interests are at stake here.
So who will provide accountability? How will people know how far a Prime Minister can go?
The whole question of when discussions between prime ministers and their attorneys-general cross into improper interference in a criminal prosecution remains a little unclear. For proof, consult the testimony at Monday’s hearings of the Commons justice committee, where legal experts differed on interpretation of the most-cited statement on that point, called the Shawcross doctrine, and the importance of the doctrine itself.
But Canadians cannot afford the luxury of throwing up their hands and saying it’s complicated. Prosecutorial independence is a constitutional convention. Everyone can understand why it is important to insulate criminal prosecutions from political leaders.
The matter is unlikely to go before the criminal courts. The executive director of the Canadian Civil Liberties Association, former Ontario attorney-general Michael Bryant, suggested in a blog this week that the federal government refer the legal issues to the Supreme Court. But references exist to answer legal questions, not to adjudicate cases in fact, and if one thing seems clear from this affair – even before the testimony of Ms. Wilson-Raybould – it is that the principles need to be applied to real-world facts.
That is why the Commons justice committee is pretty important in all this. It can provide a forum for the key witnesses, notably Ms. Wilson-Raybould, to put their side of the story, and more facts, on the record. It is an open forum that allows the public to make some of its own judgments – something that the ethics commissioner’s closed-door interviews would not do. A Senate committee is preparing to look into the whole matter, too.
Neither is a particularly good forum for judgment. The Commons committee is likely to be divided by partisanship, especially in an election year. If past is prologue, the Liberal majority on the committee will control the conclusions while the opposition cries foul. The Senate may be less party-political now, but the Prime Minister appointed most of its independents, and the Red Chamber has a weak institutional reputation.
For now, an airing of the facts is what matters, and the public will judge. But don’t buy the suggestion that there is someone else to decide the key question – whether the PM improperly interfered with a prosecution – and to clarify the rules for when that is wrong. There is not.