[This piece is a followup to a previous one on Speaking Liberally. For a little more context for this article, and quick summary on the charges against SNC-Lavalin, you can check out the previous article here.]
A few months ago, I wrote about the then Minister of Justice and Attorney General of Canada, Jody Wilson-Raybould, releasing a tape that she said was one piece of evidence of a grander series of attempts to influence her decision on whether or not to intervene, and prevent, what might become the criminal trial of SNC-Lavalin — an engineering, procurement, and construction corporation.
Wilson-Raybould asserted that Prime Minister Justin Trudeau and various members of his inner-circle were trying to sway her into doing what she could to secure SNC-Lavalin a deferred prosecution agreement (DPA).
The media storm and opposition party frenzy subsequent to the release of the tape brought SNC-Lavalin into the spotlight, along with discussions on what DPAs were, questions about if and why the Prime Minister was so invested in seeing SNC-Lavalin avoid a trial, and debates on the overall ethics of the situation. A limited part of the public discussion focused on the fact that SNC-Lavalin had input into the process that led to DPA policies and procedures being adopted into the Criminal Code of Canada.
Trudeau at the time claimed that he was not trying to interfere with anyone’s ministerial autonomy, and still now claims that any conversations related to the matter of securing a DPA were strictly related to concerns over the economic fallout that might occur if SNC-Lavalin went to trial — the good old “jobs” shtick that politicians do.
Fast forward to August 14, 2019, when The Office of the Conflict of Interest and Ethics Commissioner released their report on the entire matter.
I can do no better than thissection of the executive summary:
“The evidence showed that SNC-Lavalin had significant financial interests in deferring prosecution. These interests would likely have been furthered had Mr. Trudeau successfully influenced the Attorney General to intervene in the Director of Public Prosecutions’ decision. The actions that sought to further these interests were improper since they were contrary to the Shawcross doctrine and the principles of prosecutorial independence and the rule of law.
For these reasons, I found that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence, both directly and indirectly, her decision on whether she should overrule the Director of Public Prosecutions’ decision not to invite SNC-Lavalin to enter into negotiations towards a remediation agreement1.”
The report goes on to detail the facts and reasons that brought the Conflict of Interest and Ethics Commissioner to this conclusion and why the whole situation was ultimately unethical. It included discussion on how the Liberal Party’s concern over SNC-Lavalin’s criminal proceedings wasn’t, contrary to Trudeau’s rhetoric, strictly about “jobs.” It concluded that “the evidence showed that the governing party also considered the partisan political consequences of not being able to secure a remediation agreement for the company2.”
With the release of a report from an ethics commissioner that explores the issue and finds improper and unethical conduct, the whole scandal’s juiciest piece of meat was no longer a leaked tape from someone who would subsequently leave a political party and a federal cabinet post. Liberal Party partisans can no longer do their best to spin attention away from the ethical discussion about the private power and influence of SNC-Lavalin and onto, what some say was, Wilson-Raybould’s questionable character for taping someone without permission.
What will happen now until election time in the world of political parties and their partisans is quite predictable, and is indeed happening as I write this.
General discussions within the context of ethics, parliamentary procedure, and concentrated private power and its influence over democratic institutions will be, more often than not, cast aside for the classic political conversations that frame these issues as completely partisan problems of people, not laws or institutions.
So, the “TrudeauMustGo” hashtag takes off on Twitter and Andrew Scheer shares a picture using criminal law lingo that touts Trudeau being “found guilty” by an ethics commissioner, even when there hasn’t been a criminal trial3. The Conservatives will try and let everyone know that this whole problem stems from a corrupt cast of characters specific to a corrupt party.
On the other hand, we have partisans of the Liberal Party who are happy to see that the Prime Minister has “learned from his mistakes,” or are trying to explain to people that Trudeau and his circle have not done anything wrong and are in fact the victims of a witch hunt and an “overexaggerated smear campaign4.”
What will happen over the coming months in the media is not as predictable, but I’m confident I can provide a sketch that will resemble something close to the coming reality.
There will probably be a few stories and op-eds that raise and explore the question of SNC-Lavalin’s mission of securing a DPA and how it conveniently lined up with the potential Liberal Party partisan benefits should Wilson-Raybould have pursued such an option. Discussion around Justin Trudeau’s attempted influence on Wilson-Raybould will continue. There will also be some coverage and discussion about SNC-Lavalin’s lobbying of the Liberal Party to influence the adoption of the DPA policies and procedure into Canadian Law, and this will obviously be discussed in the context of SNC-Lavalin’s obvious vested interest in a DPA the whole time5. The Liberal Party, Trudeau, and SNC-Lavalin will be explored as the problem.
Once the fallout from this juicy scandal settles down, we will probably see a return to “business as usual” for everyone. 2019 happens to be an election year, so all this brouhaha will be great fodder for opposition parties to smash holes through Trudeau’s capabilities as a leader and the Liberal Party’s credibility as the morally progressive and justice-seeking club it proclaims to be. Justin Trudeau will continue to play down the scandal, disagree with the claims that he acted unethically, and stick to his talking points about Canadian jobs. As we get closer to election day, the media will cover political talking points, rallies, campaign strategies, and the events of the campaign trail and provide analysis on which party seems to be stronger and more competent. We will also hear about way too many opinion polls. A certain portion of Canadians will then head to the voting booth and decide who they are better off with forming government.
In all likelihood, no serious, sustained discussion6 on the warning signs that such a scandal and issue gives us about the state of democratic institutions and their relationship with private, concentrated power and vested interests will happen.
If it goes as generally described above, Canadians will be rushed right past an extremely important opportunity to think about political and economic institutions and how they influence each other in the context of a modern, Western democracy.
“Business” is used as a blanket term by many politicians in a way that wrongly creates an equivalence between a local bakery and entities like SNC-Lavalin, Lockheed Martin, and so on (see also “the private sector”). It is important to understand, and always remember, the vastly different incentives that influence the very nature of economic powerhouse corporations as compared to smaller businesses and other areas of the private sphere.
When corporations are in a certain industry and are of a certain size and structure, the people running them understand that convincing customers7 to purchase their products and/or solutions, taking in revenue, and managing that revenue properly to render a profit are not the only options on the table that create a future of sustained growth and entrenched market position. They have the time and resources to explore other options.
Exploring alternative avenues to securing long-term growth and profit — other than the core functions of business on a competitive market often — means interest in legislation and government must kick into higher gear. Corporate lobbying, by nature, is an attempt to align government action and laws with particular, private interests.
When this point is reached, there are a few ways things could go. One way, is absolutely nowhere. If there were absolutely no mechanisms in place for corporations to influence government action, then we would not run into the problem of their lobbying for their own particular interests. This is highly unlikely to ever be the case in modern, Western systems.
So, things went a different way. Avenues for SNC-Lavalin to line up political activity with their private interest existed and were explored by the company. Their extensive lobbying of the federal government for a means to avoid a criminal trial started in 2015 — under the previous, Stephen Harper-led, Conservative Party government — and, after “talks reportedly stalled,” they resumed their lobbying of federal officials in 2016, after a new government was formed with then newly elected members of the Liberal Party8.
After continual lobbying by SNC-Lavalin and a public consultation process, legislation was passed, and the Criminal Code of Canada was amended to allow for deferred prosecution agreements.
It is safe to assume that SNC-Lavalin’s lobbying and participation in the public consultation process was not a matter of detached concern for the general health of the country’s laws and the overall efficiency and effectiveness of the Canadian justice system.
What happened after this has been well-documented: Talks behind closed doors among Justin Trudeau’s circle about the status of SNC-Lavalin legal problems and what life would look like, for all stakeholders, if they got a DPA began. As for SNC-Lavalin, they had successfully lined up their private interests with political processes, and political operatives were not oblivious to the fact that partisan political interest could be lined up with private interest.
Had the initial Wilson-Raybould leak and scandal not happened, there probably would have been no ethics investigation, and SNC-Lavalin would, more than likely, not be facing a criminal trial for alleged criminal activity. Large amounts of people wouldn’t have been wised up to the fact that there had been, over the course of many years, the influence of strong particular, private interest on a package of general legislation that amended the criminal laws of a country, and furthermore, that this strong private interest was eagerly waiting for new laws to be used for its own benefit almost immediately — all conveniently lining up with the partisan political interest of the Liberal Party.
It seems that the stage was set for most of the parties involved score some short-run victories in very specific ways. SNC-Lavalin could avoid trial and would know they had some friends in power, and the Liberal Party could avoid any negative election consequences should some economic troubles hit SNC-Lavalin and affect people’s jobs — criminal trials tend to do that.
For this to work, the losers in the long-run would only have to be ethics, justice, and transparent government. Laws being passed for general purposes rather than for particular interests would be ideal, but, if no one knows, who’s really counting?
As far as Justin Trudeau is concerned, it’s logical to assume that he wasn’t too bothered by the ethical implications of all this anyway. If it were otherwise, he wouldn’t have gotten involved with SNC-Lavalin, DPAs, and considerations on how this would affect elections. Rather than feeling any moral dilemmas, he probably wishes that the ship that is his Prime Minister’s Office was able to run a little tighter and not spring these leaks.
However, as far as every Canadian is concerned, Trudeau’s leaky ship that exposed loose backroom ethics have done us a favour by providing a perfect case study and exposé into serious problems that should be fixed.
If this story lives and dies only in service of Justin Trudeau and the Liberal Party losing power, then it would be an extreme waste. The Liberal Party’s political opponents would love you to believe it, but fixing issues like this is not going to be a matter of putting the “right” people in power — the idea of a politician that would never consider their self-interest is a fantasy.
Fixing these issues requires increased awareness around the types of institutions and incentive structures that allow for the possibility of these scenarios to occur. General public disgust for this sort of thing and a want for more transparent process must also increase to disincentivize politicians from entertaining their involvement in these sorts of situations. Lots of small changes need to be made in the short run to make an overall impact in the long-run — private entities should not have avenues to influence public ones in ways that allow them to usher along general changes that predominately favour particular interests.
As far as legislation is concerned, a good starting point is the DPA tool itself. DPA procedures were quietly put into the Canadian criminal code, and, given the circumstances and nature of their arrival and the very nature of what DPAs are, they should be loudly taken out to set example and precedence. It shouldn’t go without saying that the Liberal Party’s DPA measures were buried in an omnibus bill to expediate its adoption. This method aims to prevent Parliament from properly reviewing and debating proposals — or at least that’s what the Liberal Party told us in 2015.
If there are merits to DPAs as tools of justice, then the public deserves serious debate, consultation, and discussion that may or may not lead to its re-adoption — in other words, a healthy political process becoming of legislation that would empower certain people to decide when exceptions to criminal law can be made.
Another problem to consider is the fact that Attorney General of Canada is the same person as the Minister of Justice. Working as member of parliament that pushes a riding’s interest forward, a cabinet minister that seeks to push the governing party’s agenda forward, anda state executive that is supposed to uphold the rule of law as chief law officer of the country is too much of a conflation of duties. Not to mention that we now have precedent that shows that the Prime Minister can have — to put it lightly — difficulties navigating this complexity as well.
A critique of the point here would be the assertion that if the Prime Minister and Minister of Justice were completely ethical we wouldn’t have this problem. This would be mistaken and misses the point in hopes for something that’s improbable and unrealistic. Again, the very nature of the position means, even assuming we could find the most ethical person for the role, they would still have trouble navigating what are ultimately conflicting duties with contradictory incentives.
Canadians can take note of these issues and take a general interest in the betterment of the overall state of affairs for the long run, or they can let this die as a short-run political scandal that amounts to changing rulers but not the rules.
1Page 2 of the “Trudeau II Report 2019” from the Office of the Conflict of Interest and Ethics Commissioner
2 Section 320, page 51, of the “Trudeau II Report 2019” from the Office of the Conflict of Interest and Ethics Commissioner
3It is completely important not to be sucked in by this kind of nonsensical rhetoric. Trudeau was found to have acted improperly by an ethics commissioner. This, in my view, given the circumstances is completely unacceptable and I personally think at this point one has lost the mandate to be Prime Minister, but this doesn’t mean we start calling things what they aren’t. This was not a criminal trial, it was an ethics investigation by a bureaucrat.
4The ones I put in quotations here are based on conversations and sentiments I have seen online.
5A summary and recount of these lobbying efforts can be found starting at section 21, page 6, of the “Trudeau II Report 2019” from the Office of the Conflict of Interest and Ethics Commissioner.
6By “sustained discussion” I mean widespread news coverage or mainstream public narrative that continues for an extended period of time and influences the common knowledge and discussion of Canadians.
7It shouldn’t be forgotten that, for many companies, a good portion of — and sometimes almost all — of their revenue comes from governments.
8Specific references to this lobbying activity are found in section 22 and section 24 of the “Trudeau II Report 2019” from the Office of the Conflict of Interest and Ethics Commissioner
9Discussion on the manner of the passage of DPAs into law in and around section 41 of the “Trudeau II Report 2019” from the Office of the Conflict of Interest and Ethics Commissioner
Photo from Toronto CityNews