The SNC-Lavalin Affair

I have been discussing American politics for so long that it is easy to forget that I am Canadian. I did make a small reference to the issue in my previous blog and introduced the subject of Treasury Board Chair Jane Philpott’s resignation from the cabinet in solidarity with former Attorney-General Jody Wilson-Raybould and Jane’s loss of confidence in the way the government had dealt with the criminal charges against SNC-Lavalin. In her letter of resignation, Jane wrote, “Unfortunately, the evidence of efforts by politicians and/or officials to pressure the former Attorney General to intervene in the criminal case involving SNC-Lavalin, and the evidence as to the content of those efforts raised serious concerns for me…The solemn principles at stake are the independence and integrity of our justice system.” Note the evidence did not lead her to draw conclusions, only raise concerns in her mind. So why did she not wait until the Ethics Commissioner handed down a ruling or the Justice Committee finished its hearings and possibly drew up a report?

I am currently mesmerized by the troubles Justin Trudeau is in over the SNC-Lavalin Affair and need to write about that even though many of my readers who are not Canadian may have only a marginal interest in the current Canadian political crisis. And it is a crisis. But should it be?

It is a crisis that should matter, not only to Canadians, but to the rest of the world. After all, it begins with an issue of corruption in the private sector of a Canadian company with a global reach. Perhaps, even more importantly at this time, it is about the stability of a country currently led by a centrist government that has been a target of disdain by Donald Trump, who launched a trade war with America’s largest economic trading partner. And it is not just about trade. For Americans who want to campaign in the next presidential election over the issue of a single-payer system for health insurance, America’s next-door neighbour offers an example of a polity where a charge of “socialism” as a vicious epithet is difficult, though, unfortunately, far from impossible, to use in characterizing Canada’s welfare state.

More to the point, given the difficulties of Donald Trump over charges of obstruction of justice, the centre of the crisis has shifted from the alleged corruption of SNC-Lavalin to the issue of whether the Prime Minister and, or, his staff in his office or the Privy Council brought untoward pressure on the Attorney General in charge of deciding whether to go forward with the criminal charges against SNC-Lavalin in a court of law. Americans may, probably very justly, see the controversy in Canada over obstruction of justice as a dispute about a few children playing in a sandbox since the offence, relative to the American situation, is so marginal and the consequences so peripheral to core political issues of international concern. But the issue is important and goes to the heart of the institutions at the core of a democracy.

I choose to write on this issue today instead of waiting to hear all the evidence when I could and will make my mind up on the issue when I have much more information than the paltry amount I have now. There is a parallel, and quieter, investigation by the Parliamentary Ethics Commissioner into whether there was a breach of Section 9 of the Conflict of Interest Act prohibiting high-level government officials seeking to influence the decisions of another official to improperly advance “a person’s private interests.” Could the efforts of Prime Minister Trudeau or his office be interpreted as efforts to advance the interests of SNC-Lavalin, its executives and shareholders? I write now because I want to pre-empt hearing some evidence. Gerry Butts, who three weeks earlier resigned as Trudeau’s chief policy advisor precisely over this issue, is testifying before a House of Commons Justice Committee today. I want to read his testimony in full preparation mode. I also do not want his input to unduly influence me since, a) he is my former graduate student and b) he has remained a personal friend.

I had already predicted that the controversy would not go away simply because Gerry resigned. In fact, the resignation, I believe, provided a dollop to help escalate the crisis. But that is neither here nor there. What matters is getting a handle on the key issues. I anticipate that, contrary to the prediction of much of the press, Gerry will not provide a counter-narrative to that of former attorney general Jody Wilson-Raybould. I believe that both Justin and Gerry respected Jody’s abilities and her integrity too much for that. I note that, although discussions and communications between Jody and the director of public prosecutions remain confidential in accordance with standard practice, on 25 February Trudeau’s government issued an order-in-council to waive any claim for solicitor-client privilege that limit what Jody could say or reveal about her discussions with Trudeau and his office. However, though I do not believe Gerry will contradict what Jody said, I believe he will provide a different interpretation of the issue. I guess that his criticisms will be about political smarts rather than integrity.

Sheila Copps, who is also currently in Puerto Vallarta, argued that Justin should “lance the boil” and kick both women out of caucus. They have damaged the party and the brand. Jody claimed that she has not been free to speak whereas there has been no effort to suppress her from speaking. Further, Copps noted, that on this issue, Jody made it clear that she had made up her mind even before the PM spoke to her. Sheila accused Jody of being unable to listen and insisted that Justin should act tougher and more decisively. Chrystia Freeland, the outstanding Canadian Finance Minister, has also weighed in defending Justin as both a boss and a feminist.

This is very different than the way much of the foreign press and some of the Canadian press have dealt with the crisis. When I read the foreign press, particularly the American press, I find it distressing that the issue is being treated as one about a politician who is losing or who has lost his “star power.” Justin was the young, energetic, untarnished representative of a new generation of politicians driven by ideas and ideals. As The Washington Post reported this morning, his “charmed” rise to power has been lost. A key issue is not the loss of Justin Trudeau’s sex appeal as a superstar politico in the political entertainment industry.

But it is not just the foreign press. A headline on a Neil Macdonald story read:

TRUDEAU’S VERBAL PORRIDGE AND SERENE SMILE HAVE CARRIED HIM ALONG. UNTIL NOW

The reality is that the shine has been off Justin’s star power for some time. Some argue that the Indian trip and his family’s dress code did him in. Others trace it to Justin and his family going on a very expensive holiday provided free by the Aga Khan, who happened to be an old family friend. Still others trace his fall from grace to his reneging on his electoral promise to reform the first-past-the-post electoral system. Or was it the enormous sum the Trudeau government paid to bail out and possibly build a pipeline that had questionable prospects? Most egregiously, for others, Trudeau has joined his southern leader in kowtowing to the Saudis while, at the same time, getting into a row with China. Whatever the trigger, Justin’s entertainment value is not relevant. However, the perception and the reality of him as a political leader are.

It is not simply of importance to Canada. Democracy is under assault across the world. Canada is a beacon of hope in this challenge to democracy. Further, unlike many of its allies, most Canadians retain confidence that they have an honest government, whatever the differences over policy. Thus, the SNC-Lavalin affair is important, not only to Canadians but to the rest of the world.

Mark Collon offers a reasonably comprehensive summary of the various issues concerning the SNC-Lavalin affair and they can be accessed at https://www.cbc.ca/news/politics/trudeau-wilson-raybould-attorney-general-snc-lavalin-1.5014271. SNC-Lavalin is facing charges of fraud and corruption in connection with almost US$36 million payments to Libyan government officials between 2001 and 2011, or under US$4 million per year.

Anyone familiar with the theft of monies from the Libyan people during these years will recognize this as a pittance. Years ago, inadvertently, I came across some key information on the quest to recover the fifty to one hundred billion dollars stolen in Libya and the location of those funds. I wrote up some of my findings in an article. It appeared that Israel’s Mossad and some Israeli billionaires had possibly played key roles in tracing down those funds and possibly sequestering them.

Shortly after my piece appeared, my computer seized up. I took it in to a service person to unlock the computer so I could at least recover my information and writings to transfer them to a new computer at the very least. I was told that this would be impossible. The problem was not with the computer’s electronics, but it appeared that someone had hacked into my computer and totally destroyed everything on it, programs and writings. Absolutely nothing was recoverable. I had no material to continue my series on locating the missing Libyan billions, though my older articles and other material had been stored on an older computer that I no longer used.

My point is simple. The SNC-Lavalin corruption case is very important to Canadians and to Canadian foreign policy promoting integrity in dealing with other states, particularly developing states. But in the overall scheme of things, the alleged corruption charges against SNC-Lavalin were not only small potatoes, but did not even rise to the level of salt on those potatoes. Nevertheless, like many such corruption issues, the after-effects in the political arena emerge as far more significant.

The case against SNC-Lavalin looked solid and, if convicted, SNC-Lavalin could be banned from obtaining contracts for ten years. But the issue is not simply the strength of a major Canadian business based in Quebec and its integrity, but the integrity of the Canadian government and its failure to maintain a wall between the influence of business and the integrity of the political process.

For SNC-Lavalin had managed to get an amendment included in the Criminal Code in a 582-page omnibus budget bill in 2017 based on a promise by SNC-Lavalin to reform and on the prospect of SNC-Lavalin’s plans to expand its Canadian operation. SNC-Lavalin President and CEO, Neil Bruce, had lobbied the Canadian government and sent a letter to Public Services Minister Carla Qualtrough to that effect to change its anti-corruption rules “as expeditiously as possible” so SNC-Lavalin could avoid prosecution by creating a plea-bargain alternative, known as a deferred prosecution agreement (DPA) between the government and a corporation which had demonstrated that it had reformed after a record of corrupt behaviour. SNC-Lavalin, he claimed, was now a leader in exemplary ethical conduct and had forfeited a great deal of business abroad to avoid improper conduct. Those changes in Canadian law would, purportedly, align Canadian laws with those of the U.S., Britain and France and allow SNC-Lavalin to operate on a level playing field.

The actual detailed changes to the “integrity regime” have still not been published, but the issue remained whether individuals and firms committing economic offences – bribery and fraud – should be spared criminal charges in order to “reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others (there are 9,000 in Canada, mostly in Quebec) — who did not engage in the wrongdoing.” The Criminal Code specifically excludes using nation-state economic interests or inter-state foreign relations as a reason for the application of a DPA.

Jody claimed that, in one conversation with the PM, and in others with various officials, including 11 from the PMO, the Privy Council Office and the office of the Minister of Finance (Trudeau’s chief of staff Katie Telford, his then-principal secretary Butts, PMO staffers Mathieu Bouchard and Elder Marques, Finance Minister Bill Morneau, Morneau’s chief of staff Ben Chin and Clerk of the Privy Council Michael Wernick), she had been subjected to “a consistent and sustained effort by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the Attorney General of Canada in an inappropriate effort to secure a deferred prosecution agreement (DPA) with SNC-Lavalin.” Sheila Copps in her interview on “As It Happens” on CBC quipped, if 11 discussions and 7 emails constitute pressure, Jody has no idea what pressure is. Sheila, when she was in cabinet, but especially when she was Deputy Prime-Minister, on any single issue was subject to hundreds, even thousands, of communications. She wondered aloud, what if the jobs of 9,000 First Nations people had been at stake. On the other hand, was Trudeau being a structural racist when he first offered Jody the responsibility for Indigenous Services? Jody declined (according to Butts, unprecedented) because she had spent her life fighting the Indian Act and could not in good conscience administer it.

The Attorney General in the Canadian government has an independent, non-partisan role, especially in the oversight of federal prosecutions. Jody claimed that in one conversation with the PM on 17 September 2018, the PM told her he needed a solution to the problem since many jobs would be lost without a DPA, that the company threatened to move out of Montreal and possibly Canada, and that an election was on the horizon, but denied he was pressuring her and insisted only that he was merely searching for a solution to the problem.

Jody insisted in turn that she had done her due diligence and made up her mind, as Copps noted, even before discussing the issue with the PM or cabinet. She was not going to interfere with the decision of the director even though, under Section 10 of the DPP Act, the AG is permitted to issue directives “on the initiation or conduct of any specific prosecution.” Further, Jody insisted, the only relevant factor was the criminality of the accused, even though the DPA specifically made provision for settling a case out of court. She, as minister, could neither be nor be seen to be responding to political pressure. The problem remained – when do advice and information and exchanges of views amount to pressure and even a direction?

Justin specifically denied any direction. Gerry even denied that any pressure had been applied. Trudeau had insisted that, in the end, the decision was hers to make alone. Most importantly, Jody herself stated that nothing that had transpired had been illegal.

What we do know for sure is that in October 2018, the Public Prosecution Service of Canada made a determination that SNC-Lavalin had not met the criteria for a DPA. Jody refused to intervene in that decision, though she could have issued a direction in writing to be posted in the Canadian Gazette. The issue was not that she could not intervene, but that she would not. On 7 January 2019, Jody was demoted and moved to another more junior ministry, Minister of Veterans Affairs, and expressed the belief that this had taken place because she had refused to issue a DPA for SNC-Lavalin.

The crisis unfolds. Questions to keep in mind:

Should Jody have threatened to resign if the attempt to “pressure” on her did not desist?

Should she have resigned rather than accept a demotion?

Should and will Trudeau exclude her from the Liberal caucus?

Why are Jody and Jane dealing with this matter as if it is central to the integrity of government?

Whatever the factors, has Trudeau demonstrated incompetence in managing his own ministers and his House of Commons colleagues?

What does the crisis say about recruiting two very accomplished and committed women and promoting them to cabinet when they lacked any deep roots in the Liberal party and in the day-to-day requirements of compromise needed for effective governing?

Is the whole crisis one of integrity or political management or both?

One comment on “The SNC-Lavalin Affair

  1. Cornelia Baines says:

    With apologies Howard i cannot resist venting about Jody to you. 1. why did she not complain in september and october 2. why did she object to consulting with Iacobucci given the deferral was new untried legislation 3. why did she not announce when she made her decision about SNCL to her colleagues – 4. why did she insist on drafting legislation that excluded advanced directives for medically assisted dying, in spite of the facts that the Supreme Court decision did not exclude that and that all her cabinet were in favour of allowing it. Perhaps she saw herself as ruler of all. 5. why did she refuse to let the PMO see letters of reference from judges and lawyers re potential judge appointments – always done before

    My opinion: people with no parliamentary experience, no ministerial experience who are Vancouver lawyers may not know how to be a minister. Especially when they refer to MY TRUTH rather than THE Best available version of the truth. Wonderful critique of her incomplete testimony in the business section of the Star yesterday on the last page, not the front – read while waiting to the ARCTIC a fabulous film which you must see. I am also very concerned that everyone likes cutting down tall poppies. The news is extremely biased – two attacks on Metro morning today, most people know nothing about advanced directives which particularly angers me. I find that her staying in the Liberal party is totally malicious. She destroys it and stays knowing that if turfed out, everyone will sympathize with her. Enough..

    Cornelia J. Baines MD, MSc, FACE Professor Emerita, Dalla Lana Faculty of Public Health, 155 College St, Suite 576, University of Toronto, Toronto, Ontario, M5R 1G6. Phone: 416-978-1458 Fax: 416-978-2087

    ________________________________________

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