The SNC-Lavalin Affair and Jane Philpott

In the issue of Maclean’s Magazine out this week (21 March 2019), Paul Wells interviewed Jane Philpott, the former president of the Treasury Board who resigned her federal cabinet post following the resignation of Jody Wilson-Raybould (JWR). Before I respond to the content of that interview, it might be helpful to introduce Paul Wells first. It is relevant.

Wells, an award-winning journalist (3 gold National Magazine Awards), has written at least three books on Canadian politics and a number of articles on the SNC-Lavalin affair. Before the affair broke, he had a lot to say about Justin Trudeau as Prime Minister. For example, in a 13 December 2018 issue of Maclean’s Magazine, he published, “In Trudeauland, who makes all the decisions?” In that article, in spite of the many Liberal advantages in going into the next election – precedent for first term governments to be reelected, low unemployment, the $40 billion dollar liquefied natural gas plant in Kitimat, NAFTA – Wells pointed out what he believed to be a fundamental problem.

Trudeau was criticized for engaging in “impatient rhetoric,” adopting one position only to subsequently be reversed by one of his own cabinet members. “In 2015, Trudeau offered hope; now he carries baggage,” including a series of embarrassing moments and promises unkept. Trudeau was accused of being “unable to make the most basic decisions” and guilty of “unmistakable confusion and disappointment” in, for example, his science policy where a “Rube Goldberg” form of confused governance and “multiple redundancy” ruled the roost.

It is no hyperbole to conclude that Trudeau is not viewed favourably by Wells, not because JT is a pretty boy celebrity, but because, in Wells’ words, “phoniness is a trait he shows all too often” and Justin is an “imposter,” the “phony-in-chief.” He runs a “bully club” of “hucksters,” is incompetent at governing and leads a government suffering from “moral collapse.” Justin Trudeau’s government is guilty of running “a sickeningly smug protection racket” vis-à-vis SNC-Lavalin by rewriting “the Criminal Code to get out of a trial whose start date was set before the legislation was drafted, all because a doomed Quebec government has its appointment with the voter.”

With regard to an expensive transit plan around Montreal, Wells concluded that, “It is now impossible to believe on faith that the Canada Infrastructure Bank is not a wholly-owned subsidiary of Ben Chin, Mathieu Bouchard, Katie Telford and Justin Trudeau.” Wells never met a Liberal who did not confuse party electoral interests with the national interest; it is part of the Liberal Party’s DNA. Such is “The moral catastrophe of Justin Trudeau.” (Maclean’s 27 February 2019)

Had he never met Jody Wilson-Raybauld or Jane Philpott before he conducted his interview with her? What seems clear is that those repeatedly raising the issue of a possible DPA (deferred prosecution agreement) for SNC-Lavalin were “all” concerned with the Quebec election and not the public policy issue of a potential loss of jobs. The first is illegitimate; JWR was correct to judge it as such. The second was simply the politics of different ministers with different priorities. Further, raising the issue of an election by someone who was not Justice Minister and Attorney General was understandable, even if it would have been illegal as well as improper for JWR to offer a DPA for that reason.  

The inclusion of the provision of a DPA in Canadian criminal law for the offences committed may have been a product of a concern with the SNC-Lavalin charges, but, as documented in an earlier blog, the legal change had long been advocated by both OECD and Transparency International. Other jurisdictions even had experience in utilizing a measure which, at least on the surface, seemed directly suited to the criminal behaviour of SNC-Lavalin.

It is not clear why Wells is so obtuse or selective in reasons for offering a DPA to SNC-Lavalin. The issue is not whether the work of SNC-Lavalin was not so good it could not be replaced or that a trial would wreck it. The reality was that the criminal behaviour and the cloud of criminal charges had already reduced an estimable company (admittedly with a disgraceful record of criminality over a decade) to half its size. Would it be ripe for a takeover by a foreign firm? Jobs had clearly already been lost to foreign competition.

The fact that all such discussions went on behind closed door is precisely how plea bargains are discussed. The “consent of the governed” is about the electorate consenting to the democratically elected officials making the decision, not the electorate knowing about and confirming a specific decision. Is Wells so obtuse about how democracy works? Wells writes with invective and sarcasm and gross distortion. “(T)he most innovative thing he (Trudeau) can think to do when it comes to Quebec is to prop up the local construction firm.” That, of course, was precisely what a DPA was designed to do – to allow punishment of a corporation critical to the economy to be proportionate and just if it had reformed its culture while avoiding putting a Scarlet Letter of a criminal conviction on its back.  

The problem is not that Wells dislikes Trudeau or even that he strongly disagrees with his policies on everything from the legalization of cannabis to Trudeau’s reneging on his promise of electoral reform. The question is why Jane Philpott, ostensibly a loyal Liberal with the interests of her party at heart, would agree to have this particular journalist interview her. I do not believe in any way that it was because she or JWR have political ambitions to lead the Liberal Party, as many have alleged. I believe both are women of principle and not political opportunists.

In my reading, the German eighteenth century poet, Friedrich Schiller, in his essay, “On Naïve and Sentimental Poetry” captured the motivation through his marriage of the thought of Immanuel Kant and that of Karl Leonhard Reinhold. JWR and Jane Philpott aspired to have beautiful souls and experience the highest emotions governed by reason. A given principle taken to be universal must stand in sharp contrast with the artificial, with artifice, with the opportunistic, that if the latter are allowed to govern our behaviour, will bring us shame. It is a principle of a shame rather than a legal guilt culture where fault is first determined by high moral principle before any determination in a court of law, when, as Schiller wrote, nature and naïveté are treated as identical, when behaviour is governed by “unalterable laws” rather than ones made by humans, a situation made possible by “the imitation of the naïve in morals up to the highest illusion.”  

The pleasure that results is moral “produced by means of an idea” which we possess that exists under its own laws governed by an inner necessity with an eternal unity unto itself. Such laws are not about who we are, but about who we should be, what we ought to become once more, in the absolute vision of a long-lost natural paradise in which we find guidance for our actions. In such a naïve view, “our culture should lead us back to nature, upon the path of reason and freedom.” It is an illusionary dream of recovering a lost childhood which represents “our highest perfection in the ideal” producing in us a “sublime emotion.”

The point is that such a position is not a product of choice, but a result of a belief that there is no choice. The absolute, a constant divine appearance, must govern. Humans are free. What is divine is unchanging. It is not a god of revelation who reveals his or herself as history unfolds, but an eternal being for all time. Necessity rules, not freedom of choice. JWR’s only choice was to surrender to necessity and cling to high principle to ensure that the will freely obeys the law of necessity as we perceive truth and justice to reside in the eternal that is missing in us and demonstrably missing in the vast majority of Liberal colleagues who surrounded JWR and Jane.

It should be no surprise that ordinary politicians would be blindsided by politicians wearing these intellectual clothes. A realist would have spotted their danger. But Justin Trudeau tries to marry idealism in service to practical politics and is caught between the Scylla of idealism and the Charybdis of pragmatic politics. Wells totally misrepresents both the issues and Trudeau as a cynic. Jane Philpott’s naïveté, not her political ambition, delivered her into Wells’ cynical embrace.

Jane believed, contrary to her cabinet colleagues, that evidence existed of “an attempt to politically interfere with the justice system in its work on the criminal trial that has been described by some as the most important and serious prosecution of corporate corruption in modern Canadian history.” Jane was right in that the evidence already has shown efforts to influence how justice is meted out.  But the effort emerged from two very different concepts of justice, a highly principled and romantic version versus a pragmatic one that takes into consideration a much wider gambit of influences.

But influence is not interference. Interference takes place if the independence of the justice system is compromised, usually through payoffs to judges, but also by political pressures on prosecutors. Bringing reasons to bear on an issue, even ones that are irrelevant or even possibly contrary to law, is not interference. Instructing or directing JWR to decide not to back her prosecutor’s decision would have been interference. The effort to influence JWR to act contrary to her beliefs was both naïve and stupid but, as JWR herself said, not illegal.  

In any case, the SNC-Lavalin case is not by any stretch of the imagination “the most important and serious prosecution of corporate corruption in modern Canadian history.” By any index, Canada is among the least corrupt in the world. However, a number of essays published in 2016 and 2017 indicate a record of widespread corruption amongst First Nations (cf. Tom Flanagan 2017 essay “Corruption and First nations of Canada”), in the armed forces (Allan English’s 2016 essay, “Corruption in the Canadian military? Destroying Trust in the Chain of Command”), in the delivery of foreign aid (cf. Ian Smillie’s 2017 essay, “Institutional corruption and Canadian foreign aid”), in the defence industry (cf. Ellen Gutterman, “Beyond LAVs: corruption, commercialization and the Canadian defence industry”) and in the conduct of Canadian corporations both overseas (cf. Frederick Stapenhurst “The supply and demand sides of corruption: Canadian extractive companies in Africa”) and domestically (the McGill University hospital scandal in which SNC-Lavalin was involved). Any quick reading of these essays should indicate that SNC-Lavalin’s corrupt conduct in Libya over a ten-year period was far from “the most important and serious prosecution of corporate corruption in modern Canadian history.”

Further, from the testimony thus far, we have some idea of why Jane felt JWR should not be shuffled out of her cabinet position. Much more could be told. And Jane was right, perhaps not for all the right reasons, that it was wrong to remove JWR from her position as Justice Minister. As Jane pictures it, JWR was singlehandedly holding her finger in the dike “upholding the independence of the justice system.” Except the independence of the justice system would only be compromised if JWR’s decision had been cancelled. It was not. Pressure was brought against a minister to consider alternative approaches. She repeatedly refused to take up those suggestions. Had she resigned and stated that it was because of interference, there would have been absolutely no chance that SNC-Lavalin would have been granted a DPA. If she truly wanted and thought she needed to protect her independence and the independence of the DPP, she would have resigned. What she wanted to protect was her idealistic vision of the criminal law.

As Jane suggests, the real issue was that she felt harassed. And even if there were only 20 contacts over four months, she undoubtedly experienced those efforts as harassment. But Jane is absolutely incorrect. The harassment, however unseemly and blind, was not political interference. It is not at all self-evident that, based on JWR’s testimony that the efforts to influence crossed “ethical and constitutional lines”. They crossed the ethical line of the idealism of both JWR and Jane, but it was neither the only nor the ruling ethical order.

Jane asked, “If nothing wrong took place, then why don’t we waive privilege on the whole issue and let those who have something to say on it speak their minds and share their stories?” First, they can in parliament, in spite of Jane’s protestations that this would be an inadequate platform. Second, there are a host of reasons why privilege ought not to be waved, if only because whatever is revealed will cause a further feeding frenzy in which the government would be subjected to further irrelevant claims, all the while allowing the important principle of privilege to be really seriously breached, a political principle as important as the constitutional one of legal independence, which was never really in danger when JWR was AG.

Nowhere does Jane adequately deal with the wounds she and JWR have inflicted on the Liberal Party. She only reiterated that in the name of their ideal, wounding the party was a necessary cost.   

Let me conclude by reiterating that the issue is not one of legal independence but of an absolute romantic idealism about the nature of politics and the law in contention with a pragmatic one. The latter walks a fine line between idealism and the practical. If the war had been between a hard realist and JWR and Jane, the two women would never have been given cabinet portfolios and, if incidentally they had been, both would have been crushed by an enormous political machine. The ineptness of the Trudeau government in walking the fine line between idealism and pragmatism, the failure to read the inherent incompatibility between that position and that of romantic idealists, and the fumbling in contending with the issue competently when it emerged make up the real issue.

It is about competent political management and the whole affair has been incompetently dealt with by the Trudeau government. But in the overall scheme of things, it is all very small potatoes. One has to weigh whether this area of display of incompetence is serious enough to risk alternatives that would be worse or even much worse.

I have concluded that it is not. That Jane Philpott would provide a serious distorter of the shortcomings of the Liberal Party with a further platform to advance his criticisms is alone proof of her extreme naïveté.

With the help of Alex Zisman

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s