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SNC-Lavalin, Meng cases take unnecessary course — off the tracks

published March 6, 2019

By Dr. Gary Botting for AdvocateDaily

The SNC-Lavalin controversy arose from a simple but fundamental misunderstanding on the part of Jody Wilson-Raybould as to the role of the attorney general/minister of justice (AG/MOJ) in the interface between the cabinet of which she was a part, and the bureaucracy of the government department for which she held the portfolio.

Ironically, the same parliamentary players took diametrically opposite stances in a parallel issue of public interest in the Huawei/Meng extradition case, possibly in an attempt to avoid the vitriol expressed by the outgoing AG/MOJ that appears to have tainted the unfolding Lavalin controversy.

Contrary to Ms. Wilson-Raybould’s assertion to Prime Minister Justin Trudeau (as described in her opening remarks to the judicial committee), the AG does not have any intrinsic powers beyond those bestowed on her in her role as a cabinet minister and member of the Privy Council. Ms. Wilson-Raybould’s basic mistake arose from her failure as a cabinet minister to be open to consultation.

It is even more concerning that Kathleen Roussel, director of Public Prosecutions (DPP), a bureaucrat with seven-year tenure, should have regarded attempts to consult with her from other, similarly placed bureaucrats in other departments (including the Clerk of the Privy Council), as being in any way out of the ordinary.

That is what cabinet and interdepartmental collegiality in a representational democracy is all about — consultation at the top.

True, s. 14 and 15 of the Director of Public Prosecutions Act gives the AG the power to override the DPP, and even to take over a prosecution (and quash it) where it may raise a matter of public or national concern. But in such a situation, it isn't just a matter of the AG supplementing or substituting her personal opinion for that of the DPP, whether pro or con. Parliament put the s. 14 override provision in place so that, where there is a clear issue of public importance, the elected holder of the AG/minister of justice portfolio can consult with cabinet colleagues on the matter — and especially the prime minister — and on that basis determine whether continuing with the prosecution is in the public interest.

An AG’s decision to override (or to endorse) the intended prosecution reflects (or at least should reflect) the collective, considered will of the entire cabinet or Privy Council. Only after that consultation has taken place could Ms. Wilson-Raybould be in a position to exercise the power given to her by s. 14 of the DPP Act.

Similarly, in the extradition context, the minister of justice can, after consulting with other members of cabinet or Privy Council, including, of course, the prime minister, decide not to issue an authority to proceed where to do so creates a national liability — as in the Meng case.

The prime minister was mistaken in invoking the “rule of law” at the outset, before the matter was before the courts, but still in the hands of senior bureaucrats within the Department of Justice. Parliament had decreed that that decision was the minister’s to make. It was therefore not a judicial issue at that stage, any more than was the Lavalin matter — both matters were still solidly within the purview and jurisdiction of the executive decision-makers.

The position of current Justice Minister David Lametti that he could not be involved in the Meng case until after the judicial phase of the extradition committal proceeding had concluded was similarly made in error. Although the new minister was no doubt informed by his staff that this responsibility has been delegated to senior staff members, Parliament specified in s. 14 and 15 of the Extradition Act that the decision to issue an authority to proceed (ATP) initiating an extradition is that of the minister of justice.

Although the courts have endorsed the idea that the minister can delegate certain responsibilities, the deputy minister of justice, rather than the minister, has taken on the entire responsibility of delegating. But sometimes, the minister needs to take over control of the reins — and the brake.

Where there are bound to be economic and other major repercussions, it behooves the AG/MOJ, after consultation with the prime minister, cabinet or the Privy Council, to give explicit direction not to initiate a prosecution — or not to issue an ATP, as the case may be. The prime minister had the same obligation to be open to discussing the options in the Meng case with the minister of justice as he had acknowledged in his trying to discuss the options in Lavalin with the AG.

In Meng, the minister could and should have stepped in, with cabinet backing, to stop a catastrophe from happening. The issuance of an ATP was certain to have major economic ramifications of public and national importance. It was therefore the minister’s duty, after proper consultation with cabinet colleagues, to stop the train. In this respect, the Meng and SNC-Lavalin cases are similar.

The prime minister may have been reluctant to interfere with the Meng case, instead invoking the “rule of law,” owing to his being overly wary of the strong reaction he had received from Ms. Wilson-Raybould to his trying, quite properly, to draw her attention to the larger consequences of failing to enter into a deferred prosecution agreement (DPA) with SNC-Lavalin.

There, recognizing that proceeding with prosecution would generate public concern, the DPP properly voiced her concern to Ms. Wilson-Raybould, who, without consulting cabinet or anybody else, supported the DPP’s decision not to negotiate a deferred prosecution agreement. When Mr. Trudeau and the clerk of the Privy Council expressed their concern over the broader consequences of not granting a deferral, Ms. Wilson-Raybould suggested that the prime minister was treading on dangerous ground, implying that she personally had the ultimate power over issues arising within her department. But that is decidedly not the case.

Given her misguided opinion of her overweening power as the attorney general, the prime minister had no choice but to remove her from that portfolio.

The DPP and the deputy minister are respectively the heads of the offices of the AG and the Department of Justice (DOJ). Both “report” to the AG/MOJ, who in turn “reports” to cabinet, Privy Counsel and incidentally the PMO. They should have assessed, collectively and collegially, the downside of not issuing a DPA in the Lavalin case, and the downside of issuing an ATP in the Meng case. Even earlier, given the inevitable controversy, Ms. Wilson-Raybould should have consulted with cabinet before allowing her delegated staff to issue a provisional arrest warrant for Ms. Meng.

No doubt the intensity and potential enormity of the Lavalin conflict overshadowed the equally major public consequences in acting on the U.S. request for issuance of a provisional warrant for a major international executive landing in Canada en route to Mexico.

Ms. Wilson-Raybould obviously did not appreciate that her DPP and deputy minister are not in a position to see all the nuances of taking such precipitous action without input from the various other government departments. She saw herself as having been appointed the determining voice in such a conflict, where in fact she was merely (but importantly) the voice of the cabinet, where she was the figurehead of her department.

That is why Trudeau and Co. were so upset in the Lavalin case — they had tried to explain the huge economic consequences, including loss of up to 9,000 jobs, by not deferring the prosecution. Ms. Wilson-Raybould took this as an ad hominem attack, an affront to her personal authority. What she did not understand is that she had no independent authority, apart from that bestowed upon her as an elected and duly appointed member of cabinet. She certainly had no authority to go against cabinet wishes.

It is absurd to suggest that a cabinet minister, including the attorney general, should be insulated from “pressure” from fellow cabinet ministers, or that the DPP (whose position more closely resembles that of attorneys general in other commonwealth countries) cannot be approached with impunity by fellow deputy ministers who have broader concerns of a public or economic nature. The Criminal Code especially protects the AG from attack from individuals displeased by the AG’s prosecutorial decisions, not from “pressure” from cabinet colleagues. Otherwise, there would be no checks and balances on her power.

The request for the arrest of Madam Meng came hard on the heels of the difference of opinion between Mr. Trudeau and Ms. Wilson-Raybould over her role as AG. The fact that the United States could use a screening of passengers passing through U.S. air space over the Pacific Ocean to intercept an executive of a prestigious international corporation was bound to raise a huge public issue of abuse of process that itself should have alerted officials to the unusual nature of the request, requiring the deputy minister to consult with the minister, and in turn for her to consult with her cabinet colleagues.

The U.S. request for Ms. Meng’s arrest came to Mr. Trudeau’s attention the day before her arrest, while he was out of the country. According to a news release from the DOJ, the deputy minister had already delegated authority to issue provisional warrants to senior members of the DOJ staff. The same news release reports that the deputy minister — not the minister — also designates who may issue an authority to proceed.

Unfortunately, when Mr. Lametti became minister of justice, he inherited the same senior staff, and the same stale advice in terms of practice from both the deputy minister of justice and the director of public prosecutions. He went on record right away as saying he would not be involved in the Meng case until later in the process; in fact, he implied that it would be a conflict of interest for him to become involved at that juncture. But in Meng, as in Lavalin, he should have been proactive in instructing his staff not to issue an ATP, given the huge consequences of doing so.

In allowing his deputy minister to delegate to senior members of the DOJ the responsibility of deciding whether to issue an ATP in Meng, Mr. Lametti repeated Ms. Wilson-Raybould’s mistake in SNC-Lavalin — failing to consult with his colleagues in cabinet to get direction as to whether it was wise to issue an ATP in the first place.

All the wisdom in the world pointed to the minister not issuing an ATP rather than allowing the train to run its inevitable course — off the tracks.