The SNC-Lavalin Affair – Jody Wilson-Raybould (JWR) Part I

There have been two critical developments since my last blog. Michael Wernick announced his retirement as clerk of the Privy Council because he had lost the trust of the opposition as a direct consequence of the SNC-Lavalin affair. Second, Justin Trudeau appointed former deputy prime minister, Anne McLellan, as a special adviser to consider the recommendation of both Jody Wilson-Raybould (JWR) and the former Justice Minister, Irwin Cotler, that the roles of Minister of Justice (MJ) and of Attorney General (AG) be split. McLellan was also charged with reviewing the operating policies and practices in inter-ministerial communications and between public servants and political staff. The affair keeps rolling along; a review of the legal and political history is critical.

SNC-Lavalin is a worldwide behemoth engineering and construction company.  Currently, about one-sixth of its over $9 billion income stems from Canadian government contracts and another one-sixth from provincial and other domestic contracts. As indicated in the previous blog, from 2000-2012, SNC-Lavalin had developed a reputation for engaging in seedy practices in obtaining such contracts. One question was whether it had reformed sufficiently so that the company could obtain a deferred prosecution agreement (DPA) for its alleged bribes in Libya under the Gaddafi regime. Under current rules, if SNC-Lavalin is convicted, that would mean a 10-year ban on SNC receiving federal contracts.

After engaging in discussions with various parties, a provision for deferred prosecution agreements was included in the March 2018 omnibus budget bill after lobbying from SNC-Lavalin following charges against SNC-Lavalin in February 2015. After the election of the Liberals, numerous meetings took place over two years between SNC-Lavalin and personnel from the office of the Minister of Finance, Morneau, including Francois-Philippe Champagne, Morneau’s parliamentary secretary and senior policy adviser, Robert Asselin.

The DPA was not just a product of the self-interest of big business. In 2011, the Organization for Economic Cooperation and Development (OECD) country report on enforcement of its anti-bribery convention critically singled out Canada for its failure to act against bribery. Only one successful prosecution had been managed since the law was passed in 1999. In 2018, Canada was branded with “limited enforcement” with respect to the convention, largely because Canada took too long to bring cases to court, in turn, largely a result of an inadequate number of judges being appointed. It had been determined that a reasonable wait time would be 30 months. The withdrawal of almost all charges against the former CEO and Vice-President of SNC-Lavalin has been attributed to these delays.

The SNC-Lavalin affair arose after JWR resigned as MJ and AG, but it began when she occupied that office. The MJ focuses on policy in relationship to the justice system in general. As AG, wearing her other hat, JWR is the top prosecuting authority in the country. Normally, that authority is exercised by the director of public prosecutions (DPP) with respect to any litigation on behalf of the Crown. During the period of the alleged scandal, Kathleen Roussel (KR) was appointed as DPP on 21 June 2017 and continues to hold the position.

In addition to prosecutorial functions, the AG serves as the chief legal adviser to the government of Canada (GofC) as distinct from her role as MJ responsible for policy with respect to justice issues. Under the Director of Public Prosecutions Act (DPPA), the AG retains prosecutorial authority and discretion, to be exercised individually and independently. The AG has the authority to issue directives to the DPP on specific prosecutions, or even to take over a prosecution.

Though these are not cabinet decisions, cabinet colleagues, including the Prime Minister, may draw to the AG’s attention any important policy considerations relevant to how a prosecution will proceed. Those policy considerations specifically exclude partisan political ones, such as the effect of a prosecution on the Quebec provincial election. After the Action démocratique du Québec’s election victory in October. JWR alleged that in a meeting with Jessica Prince and Mathieu Bouchard from the PMO, Mathieu, Trudeau’s senior policy adviser, raised the question of the federal election and the impact of SNC-Lavalin moving its headquarters abroad. Finally, there is an inherited important political aspect to the MJ/AG position. The MJ and AG positions are considered high ranking cabinet appointments and have often been stepping stones for the holder of those positions to becoming Prime Minster.

The Public Prosecutions Act now includes a provision for Deferred Prosecution Agreement (DPA) or remediation agreements, an inclusion supported by Transparency International Canada because it was believed that the possibility of a DPA would encourage companies to voluntarily report and remedy wrong doing. At the same time, a DPA does not exempt a company from paying financial penalties or individuals from being held accountable for criminal actions. Since the possibility of a DPA has been included in the Act, it has not yet been used. Nor have detailed guidelines been established for its use, particularly around the issue of its employment when serving a public interest.

The central issue of the whole affair was whether cabinet colleagues and/or the Prime Minister’s Office (PMO) intervened in a specific decision and/or exercised untoward pressure on the AG or otherwise engaged in inappropriate behaviour with respect to a prosecution. The path to the conflict over the DPP Kathleen Roussel sent JWR a memorandum pursuant to Section 13 of the Director of Public Prosecutions Act (DPPA) entitled, “Whether to issue an invitation to negotiate a remediation agreement to SNC-Lavalin.” It remains a political issue even though a Federal Court on 8 March 2019 struck down SNC’s appeal for a judicial review.

On 4 September 2018, the DPP offered two advisories:

1. an invitation to negotiate a DPA with SNC-Lavalin not be made;

2. the decision to reject the prospect of a DPA by the Public Prosecution Service of Canada (PPSC) would not be announced at this time.

According to testimony before a House of Commons Justice Committee, on 6 September 2018, Ben Chin, Chief of Staff for Bill Morneau, Minister of Finance, implied that SNC be granted a DPA lest the SNC-Lavalin become a political issue in Quebec, since SNC had indicated that it might be “forced” to move its head office to London, UK. Morneau defended his staff in bringing to the attention of the AG the prospective job losses in Quebec, but skirted any discussion of the appropriateness of raising the issue of the October Quebec election.  

JWR was to undertake further internal work and due diligence before an announcement would be made. On 7 September, JWR’s Chief of Staff spoke to Ben Chin, Morneau’s Deputy Minister, to inform them that deputy attorney general, Nathalie Drouin, was trying to work out something at the same time as they were writing up an opinion on what the proper relationship should be of the AG to the PPSC. Reflections on both these matters were written up and a list of options provided to the PMO as well as an opinion on the AG’s role.

JWR requested an urgent meeting with Justin Trudeau as soon as the latter returned from abroad, but it was about another matter. Finally, on 11 September, the AG’s office informed SNC that it would not receive a DPA. SNC legal counsel, Frank Iacobucci, pursued the matter believing that the decision was not final and was still negotiable, perhaps a reasonable conclusion since SNC had not been informed in writing. Iacobucci detailed the terms SNC would agree to in a DPA.

On 16 September, JWR’s chief of staff informed Elder Marques of the PMO of further discussions with representatives of SNC. She communicated what had been decided; the Director does not want to negotiate a DPA. However, the deputy minister was prepared to get outside legal advice on the issue. That was the wedge that they had hoped for and they rejoiced. Was JWR open to that suggestion?

The matter was not just left at that. Once again, the impact on the Quebec election was raised and the hope was that a more reasonable solution might be found before the SNC board met on 20 September. JWR’s back was up by this point and she informed the PMO’s office concerning prosecutorial independence and a concern re interference in the independence of the prosecutorial functions. JWR also did, as Morneau contended, contact Morneau about the issue, almost two weeks after Chin communicated the Ministry of Finance’s concerns. However, what Morneau did not say was that the contact had been made to remonstrate Morneau for raising the issue of jobs with JWR and that such expressions of concern, according to JWR, were inappropriate.

The question anyone reading this timeline has to ask, was why did the PMO and the Ministry of Finance not drop the matter then and there? Representatives from both the finance minister’s office and the PMO insisted that they did not want to cross any lines and that the decision was JWR’s alone to make. A request was made that JWR directly contact Trudeau on the matter. JWR concluded that it would be both inappropriate for her to intervene in a DPP decision and that no DPA should be pursued.

On 17 September, JWR met with both the PM and Michael Wernick, clerk of the Privy Council, primarily over another matter, but the issue was raised by the PM concerning Morneau’s contention that she take into account the impact of her decision. JWR reiterated her position. The PM asked for help in finding a solution. JWR insisted that she could not and did not want to go beyond what she believed was her proper authority to enter into negotiations. The DPP had decided and she had exercised sufficient due diligence to back that decision.

Justin Trudeau raised three issues: a) potential loss of jobs; b) the election in Quebec and c) the fact that he was an MP from Quebec. JWR asked: “Are you politically interfering with my role, my decision as the attorney general? I would strongly advise against it.” JT insisted he was not interfering at all but simply was asking her to find a solution. Michael Wernick agreed that all of the above had been discussed and reaffirmed that the issue of job losses and the effects on the Quebec election had been raised, but insisted that it was his proper role to remind federal officials of potential impacts of federal decisions on provinces. In any case, JWR agreed she would discuss the issue with her staff, would organize a meeting with Michael, herself and her DM, but reiterated that she had made up her mind.

Gerry Butts, who had not attended the above meeting but had been briefed on it, in his testimony before the Justice Committee, raised the question: If the Attorney-General had made a decision, and communicated it to the Prime Minister and Clerk, why would there be a next step at all? Why would the AG take and solicit meetings on a closed matter? I myself think the answer is obvious, the PM had requested that she do so.

Gerry’s second query was, “Why would the Attorney-General not communicate her final decision in writing to the Prime Minister?” since putting her position in writing was her preferred mode of communicating. I believe the answer to that is also obvious. The topic could be embarrassing to the government and, especially, the PMO. Better then to communicate her rejection of those repeated requests orally. Appointment of a Supreme Court justice, the TMX pipeline process, and the work of the Cabinet Committee on Reconciliation were not politically sensitive issues where fundamental principles seemed to be at stake.

On 19 September, Michael Wernick and JWR met. Wernick stressed that the issue was only about job losses and not politics. The determining date was the next day when the SNC-Lavalin board would be meeting. However, JWR reiterated her position that her deputy not meet with the DPP and that the DPP’s decision had to be respected. Could JWR not communicate to the DPP the public interest argument? JWR insisted that would be inappropriate.

Elder Marques and Mathieu Bouchard from the PMO also barged in and asked JWR’s chief of staff for an update. The latter relayed a summary of the meeting with Michael Wernick. Could not there be “an informal” outreach to the DPP? JWR’s chief of staff said that would be political interference. Morneau also raised the issue with JWR in the House, reiterating the concern with loss of jobs, and received the same reply.  

It is important to recognize how the timelines and substantial points from both sides were overwhelmingly in agreement. The interpretations and significance were not. Why didn’t Justin Trudeau call the dogs off?

To be continued.

With the help of Alex Zisman

SNC-Lavalin – Law and Ethics

There are many evaluations and many points of view on the SNC-Lavalin Affair in Canada. This is mine. But I cannot help noting that neither mine, nor that of anyone else focused on the issue, matters a great deal to the ordinary Canadian, whomever that person is. However, it is certainly a focus of concern and analysis for the chattering classes. As observed below, currently the issue also matters to enough people, possibly to swing the next election. Therefore, it is important to understand and evaluate what has taken place.

I will deal with the affair in a series of blogs to offer a reasonably thorough analysis so that these writings can also be used as a reference. As currently planned, the blogs will cover:

  1. SNC-Lavalin, law and Ethics – an Introduction (this blog)
  2. Jody Wilson Raybould (JWR)
  3. The Government’s Defence
  4. Issues:

a) The Possible Deferred Prosecution Agreement (DPA)

b) Intervention, Pressure or Inappropriateness

c) Motivations

d) Resignations

    5. Media Coverage

    6. Political Implications

David Coletto and Bruce Anderson of ABACUS Data polled Canadians regularly over the course of the controversy as it initially unfolded, first prior to The Globe and Mail story on 5 February 2019, then just prior to Jody Wilson-Raybauld’s resignation from cabinet on 26 February 2019, and then followed by rolling 3-day surveys from 28 February to 4 March 2019. What were the results? Were Canadians following the issue and did they believe the Prime Minister should resign?

Roughly, Liberal support dropped over the period by 3%, virtually all of that drop in the first phase of the “scandal.” PC strength grew by the same amount so that the party ended up with the largest lead of 6% that it has had over the current Liberal government. The Green Party increased in strength, largely at the expense of the NDP, but again only in the first phase of the scandal. It is not at all clear what this shift had to do with the affair.

The shift towards the Conservatives has largely taken place in Ontario and the three provinces from Manitoba to Alberta. The bigger news, perhaps, is that support for Justin Trudeau dropped far more than support for the Liberals, approvals declining 11% from December to the end of the first week in March; disapprovals rose 8%.  The meagre good news for the Liberals – over the period, Andrew Scheer has consistently polled below that of Justin Trudeau, except that Justin lost sufficient support to leave him only marginally ahead of Andrew Scheer.

One might conclude that the SNC-Lavalin Affair did have an impact on voters, but a deeper probe suggests that this was more because Trudeau’s reputation was further tarnished, not, in my estimation, from the substantial issues at stake, but because Justin’s political image was damaged by the discussion, either because of the way the Liberals handled the issue or because of the substance or both. I suggest that the problem lay in the way the “scandal” was handled. 40% of Canadians, tuned into the issue to some degree. That in itself is revealing.  

Bruce Anderson concluded that, “a substantial enough number of people have been following the SNC-Lavalin question, and the narrative they have been exposed to, has shaken up the political landscape, and created opportunities for the Conservatives and greater risks for the Liberal Party,” but no conclusions can be drawn about the impact on the October election, eons away by any political measure. However, the increased risk to the Liberals is evident in David Coletto’s observation that, “More people now have a negative view of the Prime Minister than a positive one – the first time since last March that our surveys have found this.”

I do not believe my analysis will have any significant impact on such polls. I believe the results are products largely of impressions rather than analysis, though I have generally found the coverage in The Globe and Mail, the newspaper that originally broke the story, to be generally very good, I believe a more comprehensive analysis is required. I will draw my own conclusions and share them with you.

In today’s blog, I focus on SNC-Lavalin itself. What is the extent of SNC-Lavalin’s use of bribery in obtaining business in Libya and what is its significance? Has there been a record of domestic corruption? Have SNC- Lavalin personnel, such as former CEO Pierre Duhaime, benefited from such corruption?

The last is easiest to answer. On 1 February 2019, Duhaime “pleaded guilty to a charge of helping a public servant commit breach of trust for his role in a bribery scandal linked to the construction of a $1.3 billion Montreal hospital.” SNC-Lavalin had been accused of defrauding the McGill University Hospital Centre (MUHC) of $22.5 million in a bid-rigging scam ensuring SNC would win the contract. The bribery scandal received a great deal of notoriety over the role of Arthur Porter, the former head of MUHC, who allegedly benefitted personally from the fraud, but he was never brought to trial and in 2015 died of lung cancer in Panama to which he had fled when the scandal broke.

In 2010, a Quebec consortium won the $1.3 billion contract both to design and build the McGill University Health Centre’s Glen Site, and, as well, maintain it until 2044. SNC-Lavalin was part of that consortium. When Duhaime was arrested in what was called “the biggest fraud and corruption investigation in Canadian history,” he was charged with ordering the secret payments to a shell company to win the contract. However, in the plea bargain, fourteen charges were dropped and Duhaime pleaded guilty to one, his failure to investigate when an employee informed him of the allegation. Further, prosecutors assented to including in the Agreed Statement of Facts that Duhaime did not know about or authorize the bribes.

A month before Duhaine’s resignation as CEO seven years ago in 2012, top executives, Vice-President Riadh Ben Aïssa and financial controller Stéphane Roy, resigned. On 10 July 2018, Aïssa pleaded guilty to the charge of using forged documents and was given one day prison time in addition to the time already served in prison and the three years that he was required to wear a tracking device after he was arrested in Switzerland and extradited to Canada. The prosecution agreed that Aïssa never personally benefitted from the scam even though he lived the high life as a top executive of SNC-Lavalin. Fifteen other charges had been dropped. At the same time as Aïssa was convicted, in a separate trial, Roy was acquitted of the two charges against him, fraud and using forged documents.

The underlying issue in the criminal investigation is not just SNC-Lavalin’s charges for fraud and corruption in connection with the alleged nearly $48 million in payments made to Libyan government officials between 2001 and 2011, less than $5 million a year, but the effect of the culture of corruption that infected the company in its overseas dealings on the domestic situation in Canada over the same period. Aïssa was closely tied in with Saadi Gaddafi, the third son of the former dictator, Muammar Gaddafi. Saadi was responsible for dealing with patronage. In return for awarding the contract to SNC-Lavalin, Aïssa arranged that 21.5 million euros and US$21.9 million be deposited into Swiss bank accounts controlled by Saadi Gadaffi.

I became familiar with SNC-Lavalin’s connection to Libya a few years ago in the course of other research I was conducting. I first became acquainted with Mexican intelligence discovery of efforts to smuggle Saadi to Mexico in the course of which I came across a number of electronic documents about the location of the over US$100 billion stolen by the Gadaffis from the Libyan people. Now that Muammar had been trapped and killed by Libyans and Saadi in March 2014 was extradited to Libya from Niger to stand trial for murder, but was acquitted, the question was where the loot had gone and who controlled it. I traced the funds to South Africa. Though it was not yet clear to me who now controlled the money and where it was, two Israeli billionaires and the Mossad seemed to be involved.

The evidence for that involvement was included in a blog a few years ago. Two of the planned series went out and when I was writing the third one early in the morning in Mexico, my screen went all fuzzy. I could not reboot my laptop. I did not know what I had done and took the computer in for repairs and, at worst, to recover the documents and data I had collected. There was evidently no possibility of either. The computer had been totally destroyed electronically. Neither the software nor the contents were recoverable. The computer expert said that he had never seen anything like the damage done. Lacking the documentation, I discontinued my writing on the missing Libyan money.  

Many however have been critical of the results of how the perpetrators of theses criminal activities get off virtually scot free and want the SNC-Lavalin charges re Libya to go to trial, not only to see the effects of corporate bribery in maintaining and enabling bloody dictators in states such as Libya, especially at a time when dictatorships are on the march around the world, but to throw light on the company’s culture of corruption.  

On the other hand, Conrad Black argues that, “Companies have to disgorge funds sometimes but they don’t commit crimes; people do, and everybody, especially in such a woolly state of affairs as this, deserves a presumption of absence of guilt. And if executives are fairly judged to have committed crimes, they face the sentences but the company continues in the hands of people with better judgment and ethics.

“SNC-Lavalin has had its ups and downs, but it is a legitimate Canadian international business success story and should not be summarily castigated as financially and ethically bankrupt (my italics) on allegations as flimsy and unsourced as these. Nor, as a country, should we be in the business of trying to drive a large and successful company into the hands of the receiver. The receivers are a bigger gang of crooks than any corrupt executives in this country going back to the CPR scandal of 1873.”

Companies do not commit crimes!!! The law says they can and do. Corporations, though not natural persons, are legal persons and can be held liable for offences committed by its personnel. Canada now has laws on the books that make is a statutory offence when a company bribes officials overseas so that there is a liability attached to the corporation, either as the principal or joint principal with a natural human agent.

The issue is not whether SNC is a legitimate corporation. It is. Nor can one determine whether the evidence behind the allegations is flimsy or not until the issue comes to trial or the investigators agree on a plea bargain. Black, however, is correct; corporate corruption and the corruption of individual agents in such corporations are difficult to prove in a court of law. Hence, the use of plea bargains.  However, the Canadian Corruption of Foreign Public Officials Act clearly and unequivocally makes it illegal for a Canadian company or its officers to use financial favours to obtain contracts.

A more general response encouraging indulgence is that this is the way the world works. If Canadian companies want to get contracts in the Third World, they have to pay bribes. This is all business as usual. It is the way the world works.

However, as indicated above, if Canada, if Canadians, if Canadian companies beget and are complicit in such crimes overseas, the cost is born by ordinary people. Further, the culture of criminality spreads to Canada. The result is a loss of faith in our financial and political institutions that end up eroding democracy and creating space for dictators to arise promising to clean up the swamp but, in reality, doing so usually be creating their own larger swamp.

That is why this issue is central to the heart of democracy. Did our highest elected officials conspire to get a Canadian company off the hook when it was accused of paying such bribes? The issue is a legal one. The issue is an ethical one. The issue is a political one beyond the cossetting and enabling role in abetting overseas dictators to rob their own people, but the rot spreads domestically to Canada. Perhaps, even more ominously, the rot strengthens authoritarianism everywhere.

Thus, the issue of whether the government suborned its own laws to get SNC-Lavalin off the hook through the use of a deferred prosecution agreement (DPA) is critical to the health of Canadian democracy. Did Justin Trudeau instruct or pressure Canada’s Attorney General to provide SNC-Lavalin with an escape hatch for criminal responsibility?

Hineni – I am here; Here am I; Here I am.

I owe you an explanation for my silence. I promised a follow-up on the SNC-Lavalin affair. Though I have been sporadically collecting notes on it, I have been unable to address the issue. I will try to do so next week.

My brother had 3 strokes and a heart attack. Thankfully, yesterday, he seems to have turned a corner. This morning, the doctors are performing an angioplasty to remove the clot in the anterior coronary artery and insert a stent. I will keep you posted periodically on his recovery.

Most discussions on the Torah and in synagogues this week are understandably about Purim and the story of Esther. However, this week’s parashat is somehow much more related to where my mind and feelings are. The Book of Leviticus (Vayikra) initial portion is mostly about the rules governing the korbanot (the sacrificial offerings) and the mikdash (the portable tabernacle) However, it is the initial verse that grabs me. 

א  וַיִּקְרָא, אֶל-מֹשֶׁה; וַיְדַבֵּר יְהוָה אֵלָיו, מֵאֹהֶל מוֹעֵד לֵאמֹר. 1 And the LORD called unto Moses, and spoke unto him out of the tent of meeting, saying:

God then provides a long list of instructions about the sacrifices. However, the book begins: “the Lord called unto Moses.” In Exodus 24:6, the glory of God settled down on Mount Sinai and the cloud covered the mountain for six days. On the seventh day, the Lord called to Moses from within the cloud. Even on shabat, the cloud of depression, which the rabbis call the cloud of glory, did not lift. God’s voice could be heard calling Moses from within the cloud. At the beginning of Leviticus, Moses was again called. But did the voice of God emerge from within the cloud?

In Exodus, a voice was heard. But the sight of the glory of the Lord was like a “consuming fire” on the mountain top. It was as if the pillar of fire provided a backdrop for the voice emerging from the clouds. I think that when God addresses humans, Moses in this case, it is often through a melancholic haze. But to hear God, the fire of life, the passion must also be present as a precondition for hearing. However, we control neither the cloud that hangs over us or the passion for life. What we can control is our willingness to listen, our willingness to hear, our willingness to pronounce, “Hineni!,” Here I am. Here I stand. Here I am ready to hear.

What do you need to hear the voice of God, particularly if you are not alone in a sanctuary or on a mountain? What do you have to hear in the tent of meeting? First, you have to shut out the distracting noise. You cannot do so physically in a hospital ward; it can be one of the noisiest places. But you can bracket the noise. This is easiest in the early hours of the day before the hubbub begins in earnest. Further, it is not just the noise from outside the hospital room that is so distracting. Even more so are the voices in your own head instilling in you the conviction that everything seems dark and confusing. The despair in that noise, the desperation, the depression, all seem to crowd out optimism and hope.

But bracketing the noise from without and the noises in one’s own head is insufficient. “And the Lord called…” The issue is not whether the call is out there, but whether you are listening for such a call. That is very hard to do when you are depressed, when most of the empirical evidence seems to contradict any possibility of hope. And no one can really tell whether you are listening. Whether it is Moses or yourself, the call of hope is the most private of calls you will ever receive. No amount of cheerleading from the sidelines will determine whether you can hear. And when and if you do hear, the evidence for your picking up the receiver will be slight. But first you have to shut out other noise. Then you have to listen. And only then will it be possible to hear.

Hear what? That it won’t be a bed of roses. That it is going to require effort and sacrifice. For in order to both listen and hear, ironically, in this most private of conversations, you also have to hear the support from around you. But it is you who has to sacrifice. It is you that has to carry the enormous burden of allowing the sun to break through the clouds. No one can do it for you. But you have to hear the command to do it for others – not for you to live a few more years, but for others to live a few more years with you around. You have to hear the call that the effort and sacrifice in the end are not for yourself but for others.

But the call comes through a cloud. You are confused. You are depressed. How can you hear through all the static on the ward, though all that booming and buzzing in your head and through all the encouraging words? The latter, even when expressed with the greatest sincerity, can’t help but be interpreted as rote, as language that imitates enthusiasm and encouragement but can be experienced as fraud. God’s voice may even boom. But can it cut through the ward noise, the internal noise and the words of encouragement that can come across as discouraging in its rhetorical repetition?

However, we can help. We have to keep our messages both sincere and simple. If someone is to listen, and if the only one that is important in speaking is the Lord, then it is critical that core information be transferred in the most concise and clear way possible. If Moses is to hear God, if Moses is to come face to face with death, encouragement is helpful, but it is a journey and confrontation one has to do on one’s own. However, you can reduce the noise as much as possible so that the voice of hope can break through the inevitable cloud of despair.

But what can we do about the distracting, the negative and the melancholy inside oneself as well as within the one who has to listen and hear? Years ago, decades ago, when I was still in my twenties. a close friend was in a bed on a hospital ward in the Toronto General. He was only in his late twenties. As the cliché goes, he was on his death bed.

Another friend flew up from New York. He sat beside our friend, he stroked the hand and the arm of my very sick buddy and then he did the most surprising thing of all. He got in bed with him. He not only got in bed, but he got on top of him and embraced him. It was an embrace that went on for only 5-10 minutes, but it seemed an eternity. Finally, in a totally surprising strong voice, my sick buddy said to H2, “What’s up? Have you come out of the closet? Are you gay?”

It was not just the quip. It was the very best signal you can imagine. My sick friend had turned the corner. The silence of touch can be more embracing than all the words of encouragement in the world. I had sat frozen in the pit of pessimism. H2 pressed ahead to cut through the cloud, not so my sick friend could hear his voice, but so he could hear His voice, the voice of hope in the face of despair.

But, in the end, Moses stands alone in front of the altar. And what does he hear? A list of instructions. Bend your toes. Lift your legs, one at a time. Bend your knees. Lift your left arm. Grip my hand. Lift your right arm. No, not your left. Your right, the one I am touching. The one I am caressing. Open your eyes. Do you see me? How many fingers am I showing you? No suggestions of hope. No promises. Just information. One bit at a time. Tenderness, not toughness. Still the doubt. Still the despair. Concentrate on practices. Concentrate on what you can do. Allow the work to begin. Still the voices of rhetorical hope burdened with despair. Allow the word of the Lord to be heard, to cut through the noise, to create an even better world. For, as in Genesis, it is with words that our world is created.

Worrying is not loving. Wishing does not require pretense. Responsibility does not entail doing for another what the other must do for himself. For it is he, it is Moses on the mount, who must hear the message. This does not mean telling him that everything is better than it is. Honesty is required. Be direct so he can directly attend to the voice that can cut through the cloud. Provide the information. Provide the source for determining its reliability. Do not exaggerate. Focus on possibilities, on resources available and on real opportunities.

If one is sick, very sick, if one is near death so that the man with the scythe is trimming your toe nails, the horseman of the apocalypse does not weigh out crumbs of bread in scanty measure, but opens up fully, completely, as H2 once did. Even if you offer a sip of juice or a spoon of yogurt, expect rejection. Expect anger. Expect even an inner rage worn away by suffering. But that anger can be cut through so that the person facing death can ask to be heard and not repeat that there is no one to ask and no me left to ask.

Moses had to be very tired climbing that mountain. Every time he appears in the inner sanctum of the mishkan, he repeats that experience. He repeats the experience of being on the death bed of his old self for forty days and forty nights. And when a loved one is in the same position, we must connect, not disconnect. I do it by bargaining to try to cut through the anger and the doubt. I have no idea if it works. But it is the best piece of rhetorical equipment in my toolbox.

Others, I know, are better, much better. They can allow their love to whisper and embrace another. They can utter a “small thin sound” that reverberates through, not just the room, but through a whole hospital and it can wrap around a much diminished body in a silken scarf. And they do so, as I observe, not so much by speaking, but by listening, by listening closely. They may not be able to hear the word of the Lord, but they seem to trust that Moses can. 

Some call it the power of positive thinking. But that always sounds trite to me. Certainly, you can accentuate the positive, but this does not entail dishonesty. Certainly, you can avoid the sound that reverberates like thunder that blocks out those whispers. Certainly, you can focus on your own positive feelings of hope. Most of all, you can be present, truly present. You may even witness the miracle embedded in every second. Maybe you may even hear your loved one say, “Hineni,” “Here I am.” It is always possible to tune in rather than tune out.

With the help of Alex Zisman

Cloud by Day and Fire by Night: P’Kudei, Exodus 38:21-40:38

After Moses finished building the tabernacle, the mishkan, the final verses of Exodus follow:

לד  וַיְכַס הֶעָנָן, אֶת-אֹהֶל מוֹעֵד; וּכְבוֹד יְהוָה, מָלֵא אֶת-הַמִּשְׁכָּן.
34 Then the cloud covered the tent of meeting, and the glory of the LORD filled the tabernacle.
לה  וְלֹא-יָכֹל מֹשֶׁה, לָבוֹא אֶל-אֹהֶל מוֹעֵד–כִּי-שָׁכַן עָלָיו, הֶעָנָן; וּכְבוֹד יְהוָה, מָלֵא אֶת-הַמִּשְׁכָּן. 35 And Moses was not able to enter into the tent of meeting, because the cloud abode thereon, and the glory of the LORD filled the tabernacle.–
לו  וּבְהֵעָלוֹת הֶעָנָן מֵעַל הַמִּשְׁכָּן, יִסְעוּ בְּנֵי יִשְׂרָאֵל, בְּכֹל, מַסְעֵיהֶם. 36 And whenever the cloud was taken up from over the tabernacle, the children of Israel went onward, throughout all their journeys.
לז  וְאִם-לֹא יֵעָלֶה, הֶעָנָן–וְלֹא יִסְעוּ, עַד-יוֹם הֵעָלֹתוֹ. 37 But if the cloud was not taken up, then they journeyed not till the day that it was taken up.
לח  כִּי עֲנַן יְהוָה עַל-הַמִּשְׁכָּן, יוֹמָם, וְאֵשׁ, תִּהְיֶה לַיְלָה בּוֹ–לְעֵינֵי כָל-בֵּית-יִשְׂרָאֵל, בְּכָל-מַסְעֵיהֶם.  {ש} 38 For the cloud of the LORD was upon the tabernacle by day, and there was fire therein by night, in the sight of all the house of Israel, throughout all their journeys.– {P}

After finishing the verses and the Book of Exodus, an Orthodox congregation rises and shouts: “Chazak, chazak, venitchazek!” (“Be strong, be strong, and we will be strong!”) Why the need, and the urge to reinforce the need, for standing tall, for being strong? Why the determination? What is it about the cloud by day and the fire by night that demanded such a response?

According to Rashi, citing the Talmud, the cloud was Aaron’s talisman just as the well was Miriam’s and the manna was Moses’. Why then did the Clouds of Glory disappear when Aaron died? If, as the rabbis argued, the cloud itself was glorious because it performed magical functions – flattening hills, raising valleys, destroying snakes and scorpions and generally undertaking beneficent feats – why, if that was the case, and if water associated with Miriam was also crucial to life, why, if the people cried out and rebelled when the wells went dry, why did they not cry out and complain when the cloud lifted and disappeared? Was the lifting of the cloud in any way related to the cloud of guilt that remained over Aaron’s guilt and failure to properly atone for his role in building the Golden Calf?

One possible answer – the clouds were no longer needed. After all, the clouds, the rabbis contend, originally performed the service of a rearguard to protect the Israelites from the wrath of the Egyptians following them. Thus, the IDF called one of their operations Amud Anan, translated either as Pillar of Cloud or Pillar of Defence. As the angel moved to their rear, so did the clouds. The clouds then moved into a forward position as they crossed the desert. Now, the trip across the desert was almost over. The Israelites no longer needed the clouds to navigate for them; they were entering a settled territory. Protection from the hot sun was not needed. Water to wash clothes was not needed. The rough terrain of the Sinai was behind them. But were the clouds not needed for spiritual guidance to ensure that the Israelites traveled on the correct moral path as well as the physical one?

After all. Exodus ends, not with the cloud leading the Israelites as they travelled across the desert, but as a cloud that covered the Tent of Meeting. When it covered that Tent, the Eternal moved into His home and occupied the mishkan. Only when the cloud lifted and went before them, could they continue their journey. This must provide the critical clue to the meaning and role of the clouds. Moses and the people had finished building the Tabernacle. It was shabat. God was present and in occupancy. Out of the emptiness between the cherubim and hidden in the cloudy mist, the voice of God could emerge from a portable shrine. As Nahum Sarna wrote,

The function of the Tabernacle was to create a portable Sinai, a means by which a continued avenue of communication with God could be maintained. As the people move away from the mount of revelation, they need a visible, tangible symbol of God’s ever-abiding Presence in their midst. (The JPS Torah Commentary: Exodus, p. 237)

Though the Book of Numbers does not follow sequentially in the published version, as a narrative it is what comes next when the wanderings of the Israelites in the desert are described. The desert is not just a physical entity anymore than the clouds are. Numbers offers tales of loss of faith, of distrust, of rebellion. We read of a spiritual as well as a physical journey and the people will need all the strength in the world to complete it. It is in Numbers (7:89) that Moses will finally be invited into the tent of God’s abode which he was unable to do at the end of Exodus. Have the clouds become providential by then rather than a source of intimidation?

By this time, the Israelites are totally disoriented and need to be pointed in the right direction. They are displaced persons, physically, psychologically, socially and politically. It is in that condition that they experience God as both inhabiting the mishkan and prohibiting entry. God occupies the space between the cherubim to fill the emptiness, the hollow in their hearts, that they experience as a refugee population of displaced people. Does that mean, as mediaeval commentators suggested, that the completion of the Tabernacle marked a new stage of solidarity and established a loving relationship between God and his people wherein God’s love became accessible and tangible?

The implication is that the clouds served as a new miracle drug, ketamine, for depression. After taking the drug, a patient declared, “It was like the weight in my head, the cloud (my italics) that was there for decades, just disappeared. It changed the entire course of my life.” However, the drug may also have the effect of producing hallucinations, tunnel vision and dissociative effects; people feel untethered from their surroundings.

The older antidepressants, such as prozak, target the neurotransmitters – serotonin, norepinephrine or dopamine. The new drug role in learning and memory.” Ketamine, targets glutamate, described as a “powerful excitatory neurotransmitter that is released by nerve cells in the brain. It is responsible for sending signals between nerve cells, and, under normal conditions, plays an important role in mood, learning and memory.

I suggest the cloud serves as the biblical equivalent to ketamine to stimulate learning and memory, while, at one and the same time, after the mishkan was completed, it was as if the Israelites suffered from post-partum depression. The clouds marked that depression. In one sense, up to that point, the Israelites had been encased in the illusion that they were free. They had escaped slavery. Bu mentally and emotionally, they were still slaves.

The cloud occupied and emerged from behind the curtain of the Tabernacle to expose the deep darkness, the darkness that was over the deep. For although God said, “Let there be light,” that light made the darkness behind it more vivid. Instead of love and harmony, God cast a cloud of gloom and inspired nightmares and depression, though also the way to get around that depression, through learning and memory rather than simply following the dictates of a leader or idolatry of any kind. It was as if, upon completing the mishkan, the Israelites faced the despair of what freedom entailed and became nauseous, became delirious.

As Deborah Eisenberg described a parallel experience in one of her short stories, what the Israelites must have felt, the cloud by day led them to face the fires by night, “demonic, vengeful, helpless, ardent fires as they consumed the trees that had replaced the crops – to observe the moment when, at the heart of the conflagration, the trees that sustained it became phantoms, the fire’s memories.” To understand the character and role of those clouds, one must understand the role of the fires by night that plagued the dreams, the imaginations, the nightmares of the Israelites, but which, at the same time, led to the striking core of their religion, the dedication to both learning and memory.

For if we are not to live just in the moment, if we are to live in the tension between past and future, we must face the fact that the past is a site of conflagration. Enemies from without become the enemies within. What we have left from those fires in our brains are the ghosts of pine trees. The fires are demonic. The fires are vengeful. The fires are ardent and urgent. They rendered the Israelites passive and relegated them to be potential tools of the certainties of a fascist leader. The Israelites had to face their phantoms. The clouds did not so much protect the Israelites from their surrounding enemies and from the challenges of the harsh landscape and the broiling sun, but from the fires within that would and did periodically erupt in the politics of resentment.

Stupidity is destructive and ripples through any society like the devastation of a firestorm. God occupies the space between the guardian cherubim, the guardians of memory. Memory translated into history allows one to experience the dialectic between the two, between past and future, to discover the harmony and the integrity found in the drama of history. That harmony is not bestowed on the Israelites like a blanket of love, but as a melancholic cloud that can only be lifted by wrestling with our souls, our dreams and our experiences. The journey is hard and tricky.

The journey will not allow us to live just in the present, but demands that we live in tension between the past and the future, between the ghosts of trees that remain from the consuming fires and the hopes and prospects of a better future. In the meanwhile, we cannot help being struck by a God that baffles us, by the very baffling of the unrolling of history. The very first lesson we must learn is that there is no hard line between the past and the future that will define the present. It is the present that is ephemeral whereas the combination of moisture and air that constitutes clouds allows us to feel, to be cool as we try to unlock the secrets of the deep behind the destruction of past fires.



I relish my life in San Pancho

I Recline and read

I Eat and eat, and put back on the pounds it took twelve months to take off

I Lie and sleep

I Intellectually inquire and investigate

I Sit and write

I Hop around in the pool to cool off

I relish my life in San Pancho.

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:


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 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?

Walls VIB: Opening in a Wall Preserving Conservatism

Walls VIB: Opening in a Wall and Preserving Conservatism

Canada and the International Red Cross

Yesterday, I circulated to a few friends a CBC interview with my friend, Irwin Cotler, on the SNC Lavalin Affair that is roiling political life in Canada ( After that, Jane Philpott resigned from cabinet after considering Jody Wilson-Raybould’s testimony before the House of Commons justice committee.
Jane resigned over her differences with cabinet colleagues since she could not reconcile her criticisms of how the government had dealt with Jody versus her commitment to the principle of cabinet solidarity. At the centre of the debate was the wall that separated the Attorney General’s right and responsibilities to determine which prosecutions should go ahead and her cabinet responsibilities with respect of public policy and cabinet solidarity. My suggestion is that there has been too much emphasis on the wall and too little on the way openings in the wall should and can be exploited to encourage dialogue across the wall and, possibly, reconciliation.
In the CBC interview, Irwin described the tension between the role of the Attorney General and Justice Minister to speak truth to power at the same time being mindful of the need of ALL ministers to take into account policy and respect cabinet solidarity. Irwin was clearly impressed with Jody’s evidence and noted that she has a habit of taking detailed notes. Irwin had once recommended that the of taking minister responsible for prosecutions should NOT be in cabinet to ensure that a wall be retained between the duties of a Justice Minister to prosecute crimes on the one hand and, on the other hand, to participate in the formulation of public policy.

His recommendation was not accepted. Irwin says that he was faced with a similar tension, but did not see it necessary to resign when policy overruled the recommendation to pursue a criminal prosecution. Irwin distinguished intentions of an action and its consequences, suggesting that the evidence revealed thus far did not support a conclusion that the PM intended to stop or intervene in a prosecution, but the effect of persistent pressure may have had that effect. Irwin suggested that the continuing pressure beyond the point when Jody said, “Enough is enough” and decided the criminal prosecution should go forward, possibly had crossed a red line. However, further efforts at persuasion were inappropriate though not criminal. Finally, Irwin openly indicated that the inquiry is only at the beginning and testimony would be offered by many others as well as concrete evidence.

Should there be a wall between decisions to proceed with prosecutions and determinations of public policy such that the Attorney General not even be part of cabinet? Or should the wall be porous to facilitate a dialogue between issues of public policy and decisions to pursue prosecutions which therefore could not be entirely free from political interference?

The recent case of Meng Wanzhou, the chief financial officer of Huawei Technologies Ltd., who was arrested on 1 December 2018 at the request of the United States, is another case in point. U.S. Authorities want her extradited to face bank fraud charges. It is unclear the extent to which the American decision to prosecute was motivated by its trade disputes with China. Was there a direct link between a decision to prosecute and American trade policy? The debate has certainly affected Canada’s relationship with China in at least two areas.

China detained two Canadians, allegedly over the issue of the Chinese technology executive being arrested by Canadian authorities and facing possible extradition from Canada to the United States. Michael Spavor, a businessman in Beijing, and Michael Kovrig, a former Canadian diplomat living in the northeastern city of Dandong in China, were arrested on suspicion of “engaging in activities that endanger the national security” of China.

The repercussions on public policy of a prosecutorial decision have not only affected China-Canada diplomatic relations, but economic relations as well. Northwest Territories Premier Bob McLeod announced that he was putting on hold a trade mission intended to be sent to China in light of the arrest of the two Canadians. Should the Canadian cabinet have discussed the possible public policy implications of detaining Meng Wanzhou and possibly prevented her arrest given the serious international repercussions and the detrimental economic and political affects?

The issue of walls between policy debates and issue of justice concern not only criminal but international justice as well. They concern not only the issues of democratic governments in a nation-state but the conduct of international humanitarian agencies as well. The International Committee of the Red Cross (ICRC) provides a case given its determination to maintain a wall between its primary objectives and all other possible issues, including other humanitarian obligations, some similar to the SNC Lavalin case insofar as they concern economic issues and some distinctly different because they concern ethical priorities that translate into humanitarian policies.

According to the commentary of my Geneva colleague, Danny Warner (, a recent interview in the Tribune de Genève with the director general of the International Committee of the Red Cross (ICRC), Yves Daccord, and a letter/response from a former ICRC delegate, Thierry Germond, signalled a crisis at the ICRC and in the humanitarian ethos. On one level, it is about tradition versus change. On another level, it is about much more. It is about whether to build a firewall around an institution’s mandate in order to protect that mandate.

ICRC humanitarianism always prioritized the separation of the humanitarian goals from business and politics ever since Henry Dunant founded the organization, even though he needed money to fund access to victims and prisoners of war in situations of violent conflict. At the same time, he was involved in the promotion and development of humanitarian law that could take primacy over state law. That has been the tradition of the ICRC and usually it has managed to sail safely between the need for independence and its diplomatic dealings with states and donors.

ICRC’s current President Peter Maurer joined the Foundation Board of the World Economic Forum (WEF) to enable the ICRC to access both decision-makers and potential donors. When Hillary Clinton gave highly paid speeches to Wall Street, did that not create a suspicion that she could easily become a tool of major financial institutions? Would it not have been worse if she had accepted membership on the board of one of those financial institutions or an overarching body? There is always a tension between a non-profit or charitable organization’s need for money and the necessary obligation to ensure that it is not influenced or seen to be influenced by that money. In order to fulfill ICRC’s mandate, should Peter Maurer not have declined an invitation to join the WEF board?

ICRC has developed a number of practices to enable it to protect its mandate and not kowtow to powerful organizations. However, in many cases, a method of confidentiality developed over decades may clearly seem to indicate that the ICRC is in the pocket of the perpetrators. In the case of the Abu Ghraib torture victims, in order to protect access to those prisoners, ICRC remained silent about the crimes being committed. ICRC chose to protect the principle of confidentiality to ensure access, but risked a charge of complicity as a bystander to torture.

The tension is not always between the ICRC and a perpetrator, but sometimes even with another humanitarian agency. In 1982, under the auspices of the Refugee Documentation Project at York University, we went to Lebanon to count the number of refugees made homeless by the Israeli invasion of Lebanon. We were impelled to do so when OXFAM (UK) published full page ads in British newspapers claiming that 600,000 had been made homeless by the Israeli invasion. Since we were otherwise involved in verifying counts of Palestinian refugees, since virtually the only ones made homeless in Lebanon were Palestinians because of Israeli attacks on Palestinian refugee camps, and because, at the very most, there were only 250,000 refugees in those camps and most seemed not to be homeless, we went to undertake an accurate count. We had a scholarly agenda. We wanted to demonstrate that even in the times of war, one could make reasonably accurate estimates of the number of displaced persons.

Israel claimed to have made its own count. The government insisted that, according to its count, 27,000 had been made homeless. There was an enormous discrepancy between 27,000 and 600,000. There is a convoluted story about how we got into Lebanon in the midst of a war to undertake our counts, which I hint at later, hint because it is not germane to the theme of this blog. Suffice it to say, I ended up in the office of the ICRC in Sidon in Lebanon. When I explained the purpose of the trip, the head of the office almost breathed a sigh of relief. For the ICRC had been responsible for issuing the figure of 600,000. However, in their cable to humanitarian organizations, they had said that 600,000 had been affected by the invasion. They did not claim that 600,000 had been made homeless.   

The ICRC had not corrected the figure because of their policy of neutrality and avoiding public relations spats, even though they privately decried what they knew to be a spread of false information, possibly in an effort to raise funds. They supplied a vehicle and a driver to enable us to go around Lebanon to do our counts with the understanding that the Refugee Documentation Project would take exclusive responsibility for the results. They also expressed a preference that their help not be acknowledged.

I asked if the ICRC had undertaken a count. They said that they had. I asked about the results. They were very reluctant to share them. I gave them a number of arguments why they should and assured them that I would not publish the source without their permission. Finally, they shamefacedly agreed. The shame was not about the figure, but about the method that they had arrived at their count. It was about 50% higher than the Israeli count – 40,000 had been made homeless in southern Lebanon according to their count.

They had arrived at that figure by multiplying the number of kitchen packages (pots, pans, dishes, etc.) that they had distributed and multiplied by three. They had distributed just under 13,500 kits. They had no idea of the degree of accuracy and did not compare to the actual head count that the Israelis had undertaken. Except, we told them, that the Israeli report had made a simple adding mistake. The Israeli numbers added up to 37,000 not 27,000. The Israelis were very embarrassed and allowed us to enter the war zone as we convinced them that figures issued by a research organization could be much more trusted than one publicized by a combatant, especially given the error in addition.

As it turned out, we did not have to do any counting. We discovered that in addition to the Israeli and ICRC counts, there were ten others, the most detailed and accurate by the Palestinian teachers, even though they included individuals in the count who had lost homes that they did not inhabit but rented out to guest workers for years. But they recorded that fact. There were other more or less similar counts, such as one by the municipal engineers.

We adjusted our mandate to reconciling and verifying the counts already done. The result – 40,000 Palestinians had been made homeless as a result of the Israeli invasion, ironically, the same figure as the ICRC rough estimate. The Israeli counters had missed several pockets of displaced persons, hence their undercount by 3,000. We published the results and they were cited by both sides in the conflict and by the international community.

The point of this story, however, is not to document the work of the York University Refugee Documentation Project, but to illustrate: a) that conflicts can arise not only between humanitarian agencies and state power, but between humanitarian agencies as well; b) that principles can be maintained, but their occasional detrimental effects can be overcome using alternative methods that do not compromise the principle of avoiding arguments in the press.

My argument is that what appears to be a debate between tradition and innovation both goes deeper and becomes a debate between principles and practices versus alternative principles and practices in a case where power may hold the trump card. But not always power. The conflict may be with another humanitarian organization that compromised its integrity out of carelessness or bias or an eagerness to raise funds or some combination of these and other factors. The solution was a case in which tradition and innovation came together to complement one another.

In many situations, ICRC becomes involved in an internal debate between its traditional preference for not going public and the wrong that results from silence. In the case of the American use of torture at Abu Ghraib, ICRC determined that the tradition of retaining access to prisoners was more important than its going public; the latter would have threatened ICRC’s access. On the other hand, not going public opened the ICRC to a charge of complicity with, as my Geneva colleague suggested, the failure to make the abuse public eroded the moral authority of the ICRC.

Independence, impartiality and neutrality are aspirational goals and principles. When to compromise, when to bend, when to find alternative ways around a conundrum, depend on the context and the skills of the players involved. A wall was generally not the answer. Communicating through the pores and openings in the wall and finding a solution that respected both was the answer. The logic was not one of either/or but of both/and. Except!

Except, some cases are clear. A wall may indeed be needed. As my colleague Danny Warner commented, “The World Economic Forum touts itself as ‘an independent international organization committed to improving the state of the world by engaging business, political, academic and other leaders of society to shape global, regional and industry agendas.’ Shaping ‘global, regional and industrial agendas’ is a far cry from ‘preventing or alleviating the horrors of war.’ Peter Maurer’s membership in the WEF’s Foundation Board calls into question the ICRC’s humanitarian mandate and the essential separation of the humanitarian from business and politics.”


With the help of Alex Zisman