Legal semantics of the "preferred outcome"

CHRIS MacLEAN  –  Feb 28, 2019

Canada is facing a serious crisis. Ironically, the types of (alleged) backdoor political interference that now threaten the careers of even the most virtuous public servants, have been dragged into the sunshine, and we are finding that sunny ways are not pretty.

The connections between two seemingly separate cases are suddenly coming into focus as allegations of political interference at the highest levels are being exposed.

The two prominent Canadian companies embroiled in these cases are well-known for their successful lobbying tactics, and each case germinated from their lobbying efforts.

First, the somewhat baffling case against Vice-Admiral Mark Norman. After receiving a letter from the CEO of Irving Shipbuilding (Nov 2015) complaining that they had spent a lot of money on a bid that was not accepted, the brand new Trudeau government was allegedly considering pausing the finalization of the contract initiated by the previous Harper government. Somehow those Cabinet discussions were leaked, which supposedly "forced" the Government to proceed with the contract, and the PM was reportedly displeased. Someone pointed at the former Commander of the Navy, who had by then been promoted to second-in-command of Canada's military, and the long process of getting him into court began (and is currently underway).

The second scenario starts off with the business ethics of Quebec-based SNC-Lavalin. Although against our own laws, apparently Canadian politicians are OK with international fraud and corruption as long as there are jobs to be secured. The company wanted a deferred prosecution agreement in the Libyan case (not to be confused with its many other bribery cases related to Canadian-based contracts, such as the New Champlain Bridge Corridor, and the Montreal Superhospital) and, according to numerous reports, lobbied hard to get support for that option. Such lobby efforts must have been successful because the Government allegedly made considerable and "sustained" attempts to convince the Attorney General to overturn a decision by the Federal Prosecutor to prosecute SNC-Lavalin.

After listening to testimony given to the House of Commons Justice Committee (27 Feb), we now suspect that former Attorney General Jody Wilson-Raybould may have been removed from office for not following the Prime Minister's very clear wishes regarding giving SNC a break (and potentially jeopardizing political votes in the process).

There have been so many key suspensions and resignations related to these two cases, that the casual observer would be forgiven for thinking they were watching U.S. politics.

  • Mark Norman, Vice Chief of the Defence Staff. Relieved of duties January 2017 then suspended in June 2018 related to an alleged leak of Cabinet documents.
  • Matthew Matchett, Procurement Officer at Procurement Canada. Suspended without pay in October 2018 after being named in a court filing by the Norman Defence amid allegations he leaked the Cabinet documents.
  • Scott Brison, Liberal Cabinet Minister. Financial ties to the Irving family identified in the Norman defence. Resigned from Cabinet effective 10 Feb 2019 to spend more time with his family (then wasted no time in accepting a position at BMO).

I can't help wondering... was Brison's resignation an attempt to extricate himself from the pitfalls of political life, or was he thrown under the bus as the "perfect cover" to trigger a cabinet shuffle that would see the uncooperative Wilson-Raybould replaced by someone more willing to connect (and follow) the dots to a clearly preferred outcome? Surely she would value her political future more than her ethics and keep her mouth shut.

Both cases revolve around the Prime Minister's wishes, and both include powerful lobbyists paired with elected officials allegedly interfering or influencing on behalf of the interests of the companies in question... not the public interest.

These many allegations of political interference are dealing a serious blow to the integrity in what's left of Canadian politics, however, let's not rush to call the election just yet, there is too much to unpack. And people are lining up to be questioned by the House of Commons Justice Committee, including Gerald Butts.

A majority of the general public is probably only now realizing that the role of Attorney General, an appointment of the Prime Minister, actually has influence in the court process, and that the integrity of the role of Federal Prosecutor can be overturned by a political master.

If there can be a silver lining to any of this, it could be that this attention will lead to the extrication of political tendrils into the judiciary. As Jody Wilson-Raybould has suggested in her testimony, the roles of Justice Minister and Attorney General should be evaluated with a view to separating them – one following the Prime Minister's wishes, the other shielded from political affiliation.

The RCMP investigations units are likely being kept busy, but thorough investigations take time. And yet, the Court of Public Opinion will not wait. Citizens must decide in the general election coming in October.

It will be quite a ride (one that would be much more amusing to watch if it was happening south of the border).

For a quick run-down of the “major players" directly involved/implicated in the SNC-Lavalin affair, read this article in th Star

An amusing perspective from the UK