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

The SNC-Lavalin Affair as a Political Management Crisis

Two events took place the past few days related to the SNC-Lavalin affair. Yesterday, Whitby MP Celina Caesar-Chavannes resigned from the Liberal caucus to sit as an independent for the rest of this session following her criticism of Justin Trudeau. In an interview the week before with The Globe and Mail, she accused Justin of raising his voice to her, a charge which the PMO denied. She had tweeted that Justin had failed to live up to the principles of teamwork and transparency that he espoused. “Real leadership is about listening, learning and compassion.” She did not respond yesterday when asked if her decision had anything to do with the alleged pressure on ex-Attorney General Jody Wilson-Raybauld (JWR) and her, along with ex-Treasury Board president, Jane Philpott’s, resignations from cabinet after the effort to get SNC-Lavalin a DPA, that is, a deferred prosecution agreement.

A second event: The day before yesterday, SNC-Lavalin was awarded the Compliance Leader Verification from Ethisphere Institute of Scottsdale Arizona. The Ethisphere Institute is advertised as an independent centre for research, best practices and thought leadership. The institute defines and measures corporate ethical standards, recognizes companies that excel, and promotes best practices in corporate ethics. The Compliance Leader Verification award is claimed to be prestigious and “is awarded exclusively to companies with the best industry ethics and compliance program that are proactively investing resources in compliance.”

“SNC-Lavalin’s performance was specifically evaluated on six main areas: program resources and structure, perceptions of ethical culture, written standards, training and communication, risk assessment, monitoring and auditing, enforcement, discipline and incentives” and its performance was benchmarked against the 2018 World’s Most Ethical Companies data set. “The structure of the program [at SNC-Lavalin] is exemplary, adopting many leading practices that reflect the company’s genuine commitment to integrity in all of its actions. In addition, the visible leadership provided by Neil Bruce and Dr. Hentie Dirker at the helm reflects true adherence to doing business the right way, and communicates that message to SNC-Lavalin employees around the globe.”

This suggests that SNC-Lavalin should have passed one of the major tests for a DPA if it has indeed reinvented itself to ensure a culture of honesty and transparency.

However, as many now recognize, the SNC-Lavalin affair is really not about corporate governance but about political governance. One of my readers in his colorful style put it this way:

As you stated in the beginning, whether or not to issue a DPA is largely irrelevant to the scandal or to Canadians. We were NOT privy to the department’s information or deliberations. Even the fact that SNC has a reputation is irrelevant to the larger, more philosophical point: did the PMO exert undue pressure on what should have been entirely JWR’s jurisdiction. Key word: undue. As in; too much. Inappropriate. Wrong.  

Oddly, even that question is over our (your reader’s heads). Too much and inappropriate are subjective and, in law, are determined by a judge and only a judge.  

So. what REALLY is the issue? If the SNC part is not relevant (and it is not).  And the influence has yet to be ‘judged’ by a court…why all the fuss and bother?

The real issue is JWR being demoted. Punished. Humiliated (in her own eyes, anyway). And the “perceived sense” of Trudeau and Gerry NOT managing their ministers well. Right or wrong on the decision re SNC is – to the average Canadian – simply a “he said, she said” issue. We don’t care.

And – this is sad, really – we don’t too much about the “influence or pressure” exerted. In fact, most Canadians WANT their MP/MLA to ‘exert some pressure’ now and then on the usually unfeeling, inhuman, glacial pace of the bureaucracy. That Trudeau ‘politicked’ some raised his stature in my eyes. ESPECIALLY because he said, “Ultimately the decision is yours”. 

So, we are back to the real issue. And that, to me, is that JWR was picked for reasons sexist and racist. She had only 3 years experience practicing law. I have more experience than that and I am not even a lawyer! She was chosen “cause she looked good” and that is the real crux of the issue. Trudeau got elected on saying and looking good. Which is fine but, not if you don’t back that up. He reneged on promises and he pulled the carpet out from under an unqualified AG. He rode the image, but put her down when she proved ultimately inadequate. You cannot have it both ways.

JWR should have been kicked out long ago. She implemented a policy of “lending support to all issues of indigenous nature – regardless.” She, essentially put indigenous issues above the law. That was bias. That was wrong. But that is NOT the reason given for her demotion…why? Because that might not look good (assuming Trudeau even knew).  

The issue, Howard, is NOT SNC or DPAs. It is NOT even the rift between the ministers and the PMO. It is that Trudeau is running the government like a spoiled brat “millennial” elitist picking people based on image, saying the light and frothy happy-boy things, apologizing to everyone for everything and NOT keeping the promises he made to get in and constantly relying on good looks to get out of trouble. Philpott and JWR (despite her inadequacies) do not like being lead by a teen idol. 

I am also a bit peeved that he resorted to “dropping” JWR without saying the ONE GOOD REASON to do so.

Remember: JWR deferred to her deputy because she REALLY HAD TO. JWR does not know enough to argue a good defense of a parking ticket. The Deputy does.   

David Cox

There it is, the crux in its briefest and perhaps colorful form. The issue is not about the corruption within and of SNC-Lavalin or whether it has reformed sufficiently. It is not even about whether other ministries and the PMO pressured Jody Wilson-Raybould (JWR) inappropriately. They unequivocally did not apply pressure illegally. They did repeatedly push the issue of reconsidering offering a DPA or, at least, having an external senior judicial figure undertake an independent review of whether one could and should be offered.

The real issue, for Cox, is Justin Trudeau’s style of governance. Justin is accused of choosing ministers, not based on talent, skills, professional and political experience, but on the basis of appearances. That is then compounded by both a mushy unwillingness to bring his ministers in line and a refusal to be direct and honest about why JWR was demoted to Veterans Affairs.

Another reader sent me an email with a letter that he had sent in response to a column of Tom Walkom. It reads as follows:

Hello Tom,

I read your column, agreeing with parts of it, disagreeing with others, until I reached your final sentence. At that point I almost choked on my morning coffee. You write that if Justin Trudeau’s wounds become mortal, “Wilson-Raybould is primed and ready to replace him.”

This is a delusional fantasy, either hers or yours. One thing that JWR has guaranteed by her actions is that she will never be the Liberal leader or, indeed, the leader of any political party except one that she may found herself. She has demonstrated that she cannot be trusted and is prepared to damage her party to satisfy herself. That is a political no-no, no matter what the motive.

In politics, loyalty is of central importance. As Sir John A. is supposed to have said: “I don’t need your support when I’m right, I need it when I’m wrong.” To put it crudely, you don’t piss inside the tent. Those who do may have a future in politics, but as a rule that future is not in the party whose brand they have damaged. That JWR is still in the Liberal caucus is due to an unwillingness to make a martyr of her. But if she loses her seat in the next general election, I doubt that many of her colleagues will grieve.

I write this not as a Liberal but as a historian of Canada. My opinion is shared by several acquaintances, among them lawyers, journalists, academics, business people, and a union executive, with whom I’ve discussed this matter over the last couple of weeks. Let it be added that everyone of them thinks that frustrated ambition has more than a little to do with JWR’s actions. Several fault the PM for appointing a political neophyte to a senior portfolio that she was unready for. Most think that she used the Globe and Mail for her own ends, and that the Globe allowed itself to be used. I heard especially strong criticism of John Ibbitson.

No doubt we will hear more about and from JWR, but not as Liberal leader. My own guess as to whom will succeed JT when he goes: Chrystia Freeland.

This suggests that the issue goes even beyond Justin Trudeau’s style of governance but to the very heart of governance in a parliamentary democracy, namely party loyalty and cabinet confidentiality. How do the actual events stack up against these possibilities?

The crisis of the SNC-Lavalin affair was not about SNC’s criminal behaviour, nor about how the government should treat that behaviour judicially. The difference of opinion and interpretation only became a “scandal” when Trudeau was forced to undertake a minor cabinet shuffle after one of his ministers, Scott Brison, told the PM that he would not be running again for a seat in parliament. The liberal domination in Nova Scotia was at stake. Reluctantly, in spite of attempts to avoid a shuffle, Trudeau was forced to undertake one. In doing so, Gerry Butts declared that the SNC-Lavalin issued was never even considered in deciding on cabinet changes. Matching skills, commitments, regional considerations to positions was the problem. If political management was the central problem, the following questions need to be answered:

  1. Was Justin Trudeau (JT) premature in appointing JWR to cabinet and to such a senior role given her absence of political experience?
  2. Did JT and Gerry Butts (GB) fail to read JWR’s determination to stand behind her decision and fail to understand both her character, her strong commitment to principle and her experiencing those “requests” as inappropriate pressure?
  3. Did JT and GB forget what JWR had said about indigenous affairs and how she would respond, if offered that responsibility?
  4. When Veterans Affairs was substituted, why did Gerry and Justin decide to effectively demote her; why did they not anticipate how she would eventually react?
  5. Why did JT boast of JWR’s confidence in himself when challenged, rhetoric which supposedly “forced” JWR to resign lest her staying in cabinet be misinterpreted?

The resignation of Gerry Butts, since he was only very peripherally involved in the SNC-Lavalin affair, but was centrally involved in the cabinet shuffle, indicates that he really resigned because he was responsible for advising on the shuffle and his experience and instincts had failed him.

To be continued

The SNC-Lavalin Affair: Jody Wilson-Raybould (JWR) Part II

The Director of Public Prosecutions (DPP) has the responsibility for determining whether a corporation (a partnership or an unincorporated entity) should be offered a Deferred Prosecution Agreement (DPA). The DPP has the benefit of the full police investigation, other court records, documents and witness interviews, including material that may never be publicly disclosed, that enable her to draw her conclusion. The public has no such access so I will not even try to second guess whether the DPP’s decision not to offer a DPA to SNC-Lavalin was a reasonable one.

A DPA cannot be offered to an individual, only to an artificial person for which any sanction would be financial. Like any plea bargain, the possibility and terms of a DPA negotiated between the accused and the prosecutor are subject to court approval. The DPA must “be in the interests of justice.” Its terms must be fair, reasonable and proportionate. Reasons must be given for declining a DPA. If a court does not approve a DPA, the possibility of prosecution is not jeopardized because the DPA terms are not yet public.

The SNC-Lavalin affair never came nearly that far since the DPP refused to negotiate a DPA and Attorney General (AG) Jody Wilson-Raybound (JWR) refused to intervene in the decision. JWR reviewed the DPP’s decision and concluded that she would be wrong to intervene. That is virtually all we know about why the AG declined to overturn the decision of Kathleen Roussel, Canada’s DPP, to proceed to trial.

The only substantive complaint that’s been made over this whole supposed “scandal” seems to be that the AG was not sufficiently persuaded by concerns about job losses to overturn the professional opinion of Canada’s most senior prosecutor. Further, it is helpful to keep in mind the OECD anti-bribery framework to which Canada has long been a signatory. Our legislation, including DPAs, is modeled on that framework. We also have a record of the criminal activities for which SNC-Lavalin has been convicted.

We do know the following. SNC-Lavalin has been guilty of the following overseas infractions and has:

  • been banned from bidding on Asian Development Bank projects because SNC fabricated qualifications and documents (2004);
  • agreed to a settlement with the African Development Bank over corruption allegations because of bribes in Mozambique (2008) and Uganda (2010);
  • determined by the World Bank as having credibly participated in high-level corruption in Bangladesh in 2009-2010;
  • entered into a voluntary debarment from World Bank-financed projects.

Within Canada, SNC-Lavalin has been found to have

  • bribed Canadian officials to the extent of $22.5 million in relation to the McGill hospital contract I wrote about in my initial blog in this series (2009);
  • agreed to voluntarily compensate seven Quebec municipalities for obtaining contracts through questionable means (1996-2011).

There is a widespread belief that general guidelines for issuing a DPA include the principle that it should be the exception and not the norm and that a DPA should only be entered into when the offences are not very serious. Neither consideration is correct. DPAs are negotiated worldwide for extremely serious crimes. They need not apply only in exceptional cases, but may, in the interests of justice, especially when there are effects on the innocent, be entered into. On appearance, SNC-Lavalin’s behaviour would seem to fall into this category since the point of a DPA is, according to OECD guidelines, to minimize consequences to innocent third parties, including employees. Therefore, the PMO and the Minister of Finance had every right and even duty to raise the possibility.

Canada can look to the UK for precedents where the issuance of three DPAs have been concluded. I have chosen the Rolls-Royce (R-R) case rather than SFO v Standard Bank plc and SFO v XYZ Ltd because R-R and SNC-Lavalin are most similar. In Britain, the Serious Fraud Office (SFO – presumably there is fraud that is not serious), following a four-year investigation, entered into a DPA with R-R approved by the President of the Queen’s Bench on 17 January 2017 following criminal conduct by R-R over three decades in seven different jurisdictions (Nigeria, Indonesia, Russia, Thailand, India, China and Malaysia). R-R agreed to reimburse SFO for its costs, thirteen million pounds, and to repay “disgorged” profits of £258,170,000 and a financial penalty of £239,082,645. R-R was also required to pay interest on those sums. (For full details of the agreement, go to https://www.sfo.gov.uk/cases/rolls-royce-plc/.

SNC-Lavalin’s crimes in Libya did not seem nearly as serious as those of R-R, certainly in monetary terms. They took place over a shorter time span, in one specific location, and did not seem to entail such enormous repayments or penalties. The R-R case seemed to offer a precedent for a DPA for SNC-Lavalin. However, as already stated, we do not have access to the evidence collected.

In Sir Brian Leveson’s ruling, he noted that R-R “is properly considered to be a company of central importance to the United Kingdom, with a reputation in the field of engineering second to none…[R-R] is a global company providing highly-efficient integrated power and propulsion solutions. [Its] power systems are predominantly used in aerospace, marine, energy and off-highway applications [locomotives…R-R is] one of the world’s leading producers of aero engines for large civil aircraft and corporate jets…, the second largest provider of defence aero engines in the world…well established in the marine sector where [the company] designs vessels [including nuclear submarines and luxury yachts] and integrated power systems.”

Worldwide, R-R employs 50,000 compared to SNC-Lavalin’s 9,000. If the UK system could balance the positive role of the company against its criminal deficiencies and take into account effects on employment, why could the Canadian legal system not do the same? One easily understands why the PM, the PMO, the Finance Ministry of the people working there all wanted the AG to consider the wider picture. On the other hand, it is also totally understandable why JWR wanted to protect the independence of the DPP, not intervene unless there was overwhelming evidence to do so, and why she would regard the repeated “pressures” as “inappropriate,” though not illegal.

Sir Brian Leveson ruled that the role of R-R in the world had to be considered when examining its criminal behaviour. There was one major difference, however, R-R voluntarily owned up to its sins, though the investigation initially was not taken as a result of self-reporting; Swiss authorities first uncovered the crimes. To the best of my knowledge, SNC-Lavalin also did not self-report. Cooperation in the criminal prosecution seemed to provide some mitigation for R-R’s serious breaches of criminal law in the arena of corruption and bribery since the conduct of the investigation was enormously assisted by R-R. Further, Leveson, while considering the impact of prosecution on employees and other innocent parties and the impact on whether R-R could continue to function in its areas of specialization, but none of these factors, and certainly the impact on national economic interests, were determinate in approving the DPA for R-R. Serving justice in a fair and reasonable way were.

 What about the issue of R-R’s or SNC-Lavalin’s responsibility for causing “serious bodily harm or death”? In such cases, DPAs are not considered to be applicable. In the SNC-Lavalin case, no professional killers were evidently involved, though, indirectly, many deaths might be attributed to the record of corrupt activities. Further, SNC-Lavalin fired its key leadership and undertook to thoroughly clean house and establish a culture of honesty. Did it do the latter? I have no way of knowing to judge the appropriateness of a DPA. We do know that Riadh Ben Aïssa has been cooperating with the prosecutor.

All this must be kept in mind as we review the events that took place after 20 September 2018. As you will see, contrary to what has often been claimed on media, there is no evidence whatsoever that the government tried to obtain lenient treatment for SNC-Lavalin or even influence the terms of a DPA, but only to influence whether and how a DPA could be offered. The issue was whether the government applied pressure in such a way as to compromise the independence of the AG.

On 18 October 2018, a new effort was launched into influencing the AG to change her mind and consider offering a DPA. The method of getting around the determination of the DPP was that the AG seek an independent advisory from an eminent jurist given the lack of precedent for a DPA. Mathieu Bouchard called JWR’s Chief of Staff and requested consideration of the option of seeking an external legal opinion on the DPP’s decision not to extend an invitation to negotiate a DPA.

On 20 October 2018, SNC filed a federal court application seeking to quash the DPP’s refusal to enter into a mediation agreement and a judge was now asked to examine the DPP’s discretion. On 26 October, JWR’s chief of staff communicated to Mathieu Bouchard that the possibility of the AG intervening was moot since the matter was now before the court.

Gerry Butts in his testimony confirmed that Mathieu Bouchard and Elder Marques had a discussion on 22 November with the former AG about a memo prepared by lawyers in the Department of Justice discussing the option of seeking counsel from an eminent jurist. JWR was irritated about even holding a meeting and insisted that the DPP Act. Section 15, Section 10 ensured prosecutorial independence as a constitutional principle. JWR insisted that Bouchard and Marques were interfering. She had made a decision not to intervene.

JWR concluded that representatives from the Ministry of Finance and the PMO were kicking the tires; she had said no and her mind had been made up; they needed to stop; this was enough. As JWR argued, “We either have a system that is based on the rule of law, the independence of prosecutorial functions and respect for those charged to use their discretion and powers in a particular way, or we do not…The consistent and enduring efforts, even in the face of judicial proceedings on the same matter and in the face of a clear decision of the director of public prosecutions and the attorney general to continue and even intensify such efforts, raises serious red flags.”

At the end of a two-hour meeting over lunch between JWR and Gerry Butts at the Château Laurier Hotel on 5 December requested by JWR, she asked for Butts’ opinion on the SNC-Lavalin file. He insisted he had no expertise on the issue but understood that the prospect of appointing a retired Supreme Court Justice to advise on the situation was being discussed between the PMO and her office. Though what Elder and Mathieu had proposed was unprecedented, so were DPA remediation agreements. The referral for advice would help clarify the AG’s powers in this and any subsequent case. Nevertheless, it was her call. Gerry insisted that he had not applied any pressure while JWR recalled that he had.

What then followed was the ignition key which eventually blew the whole dissension over how to handle the DPA into the open with the minor cabinet reshuffle, a matter that I will visit in my next blog.

With the help of Alex Zisman

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.