Thank you for writing to me regarding the issues surrounding SNC Lavalin, Ms. Wilson-Raybould, and Ms. Philpott.
Firstly, let me say I have a great deal of respect for both Jody Wilson-Raybould and Jane Philpott. Their efforts in government have been admirable and commendable, particularly in the areas of medically assisted dying, the legalization of cannabis, and reconciliation with Indigenous Peoples.
However, with respect to the recent controversy, two issues need to be dealt with: one, the substance of the issue and two, the procedure.
On the substance, there is no question that SNC Lavalin broke the law to a degree that warranted an investigation and charges against the company. In order to get to this stage, a crown attorney would have certified that they felt that there would be a reasonable prospect of conviction should a trial commence.
It should be noted that just because a crown attorney certifies the reasonable possibility of a conviction, when cases such as these go to trial there is a roughly 65% conviction rate meaning that there is a substantial risk that a trial will result in the charges being dismissed. The risk in this case would likely be enhanced because some of the impugned activities took place off-shore where witnesses may be impossible to obtain.
However, I am working on the assumption that the prosecutor was still satisfied that a conviction was not only possible, but probable. I also assume that discussions with SNC Lavalin about entering a guilty plea had proven fruitless. Up until last year, that would have been the end of the matter, and a trial would have ensued.
The Deferred Prosecution Agreement (DPA) is new in Canadian law. Prosecution is to be deferred, not cancelled, so there is no finding of guilt or innocence at this point, but the charge can be brought back at any time. The intention is to allow an accused to show that it has dealt with the impugned action that gives rise to the charge.
There are no precedents in Canadian law to guide the Director of Public Prosecutions or the Attorney General (AG) in their deliberations. The question is the nature and extent of the public interest and more particularly, what are the considerations when contemplating a DPA as a conviction will inevitably result in collateral damage – damage to employees, pensioners, shareholders, and taxpayers.
Former AG Wilson-Raybould was reluctant to engage one of Canada’s senior jurists for guidance on what might constitute proper considerations in the public interest. The government felt the public interest was of sufficient magnitude that a second opinion was warranted in these unprecedented circumstances. It’s clear that the former AG did not agree on the nature of the public interest nor was she willing to consider a second opinion.
The disagreement would have remained as an internal cabinet dispute had the former AG not been asked to change portfolios. Rightly or wrongly she felt the change was due to her position on SNC Lavalin. Regardless of interpretation of motivation, the former AG felt that she had to resign along with Treasury Board President Jane Philpott.
However, in an unprecedented action the former Ministers released statements of dissent and retained a lawyer in order to be released from Cabinet confidentiality. While the evidence presented by the former AG, former Principal Secretary to the Prime Minister Gerald Butts, and the former Clerk of the Privy Council Michael Wernick, in the public domain was compelling and demonstrated tension, it did not demonstrate undue pressure in my opinion.
As Brian Greenspan, former President of the Criminal Lawyers’ Association and recipient of an honourary doctor of laws degree from the Law Society of Ontario wrote in the Globe & Mail on April 17, 2018:
“Prosecutors routinely take public-interest considerations into account in the exercise of their quasi-judicial discretion. Every decision to prosecute, every application for bail and every sentence imposed on a convicted offender engages a consideration of the public interest.
As well, the public interest is a vital consideration in resolution discussions which routinely take place in private settings, often in teleconferences, frequently in direct personal meetings, but never surreptitiously recorded.”
The cumulative actions of the former Ministers were inconsistent with the norms and expectations of a member of caucus. With the overwhelming support of caucus members, the Prime Minister removed the former members from caucus. One cannot express confidence in the Prime Minister and the government while you do and say things that are contrary to the best interests of the Prime Minister, the government, and the caucus. If a member of caucus is unable to express his or her confidence then the honourable thing to do is resign. Caucus conventions require dissent to be expressed internally.
Upon reflection I’m sure that all parties wish that things could have been done differently. The core principle of prosecutorial independence is one to be vigorously protected. However, when in uncharted legal territory seeking the counsel of senior lawyers and jurists is simply being prudent.
Subsequently the actions and statements by the former Ministers, presumably in support of the core principle, cannot be reconciled with cabinet and caucus confidentiality and functioning.
Lastly, I encourage you to listen to the conversation my colleague Carolyn Bennett MP and I had with the Huffington Post’s Althia Raj on her podcast, The Follow Up: https://soundcloud.com/huffpost-follow-up/44-the-liberal-partys-battle-royal
I hope this information has been helpful. Thank you for writing to me on this important matter.
Hon. John McKay P.C., M.P.