Anyone expecting a yawner of a report from the federal Conflict of Interest and Ethics Commissioner on the SNC-Lavalin prosecution scandal – and I include myself among them – is in for a surprise – or, depending on one’s partisan inclinations, shock. This is no mere rehash of already-public information; it is full of new details about the machinations of Prime Minister Justin Trudeau and what can only be described as a cabal of politicians, political staffers and public servants closely associated with him. One bombshell is that even Jody Wilson-Raybould, the former Attorney-General and the target of Trudeau and his cabal, did not know the half of what was being secretly plotted against her until it was revealed to her by Ethics Commissioner Mario Dion at an interview.
Dion’s report provides fascinating and illuminating reading; it is not pretty. Its dry title – simply, Trudeau II Report – is both disturbing – suggesting a continuing series with ever-higher Roman numerals – and humorous. Dion’s main conclusion in Trudeau II is modest; he did not go beyond the scope of his very limited mandate by concerning himself with possible criminality. He found Trudeau guilty of another conflict of interest, although nobody else in the cabal was made to join him in infamy.
A conflict of interest arises when a public office holder uses his or her position to further or attempt to further (a) their own interests, or (b) someone else’s private interest improperly. Trudeau’s conduct was found to fail on both counts. With respect to the first, Dion identified four separate instances in which Trudeau or members of his cabal disclosed partisan political motivations for pressuring Wilson-Raybould into overturning a duly constituted criminal prosecution. Examples of these were statements including, “I’m the member from Papineau,” and, “We can have the best policy in the world, but we need to be re-elected.”
With respect to the second, Dion found that Trudeau and his cabal pursued the private interests of SNC-Lavalin in a host of improper ways. The participants included Trudeau’s Principal Secretary, Gerald Butts; Senior Advisors Mathieu Bouchard and Elder Marques; Chief of Staff Katie Telford; Clerk of the Privy Council Michael Wernick; Finance Minister Bill Morneau; Morneau’s Chief of Staff, Ben Chin (since promoted to Senior Advisor in the PMO); and Morneau’s Director of Policy, Justin To. Peripherally involved were Natalie Drouin, Deputy Minister of Justice; and Scott Brison, President of the Treasury Board, both of whom are cited in Dion’s report.
The main interest in Trudeau II lies not in Dion’s conclusion of guilt on Trudeau’s conflict-of-interest, damaging as that may be. The real value is that it lays out in great detail facts that support a strong belief that there had been a massive conspiracy to obstruct justice. This lays the groundwork for criminal charges. Even the normally indolent and obsequious RCMP are perking up their ears now, and Conservative Leader Andrew Scheer has demanded a criminal investigation.
Obstruction of justice is defined thus in section 139(2) of the Criminal Code: “Every one who willfully attempts…to obstruct, pervert, or defeat the course of justice is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years.” As with the conflict-of-interest legislation, a bare attempt is sufficient to draw charges.
By all accounts, Trudeau and those who participated in his campaign to persuade Wilson-Raybould to halt the criminal prosecution of SNC-Lavalin attempted to alter the course of justice. All shared the Prime Minister’s dislike of the Director of Public Prosecution’s (DPP) decision to pursue the criminal case against SNC-Lavalin and not instead to negotiate a remediation agreement; they didn’t like the Attorney-General’s decision to let DPP Kathleen Roussel’s decision stand; and they tried to bend the will of the Attorney-General to obtain a “solution.” (Wernick has specifically denied that that he wanted a particular outcome.) Of course, criminal defence lawyers also try to alter the course of justice when they advocate for a better outcome for their clients. But there is nothing wrong with that, because a vigorous defence of an accused by their designated advocate is an essential part of the course of justice. Without it, there would be no justice.
What turns legitimate advocacy into an attempt to “obstruct, pervert, or defeat” the course of justice? Jurisprudence indicates that obstruction of justice will only be found if the attempt to alter the course of justice is made with a corrupt motive, or by illicit means. It must be a “wilful perversion” of justice. This is a relatively high threshold; obstruction charges are not brought on the basis of every garden-variety malfeasance in the legal system. But we needn’t pause long to uncover a corrupt motive behind the full-court press against the Attorney-General. That is provided by Dion’s finding that partisan political motivations played a significant part in the cabal’s conduct, including his finding as fact that Trudeau was motivated, at least in part, by partisan political gain.
In addition, a corrupt motive is sometimes inferred from the employment of illicit means, on the premise that someone with a pure heart does not resort to dishonest tactics. Dion found a host of serious improprieties in the conduct of Trudeau and his cabal. Two tactics were particularly egregious.
Early in 2018, SNC-Lavalin began developing strategies should the remediation agreement legislation it was pushing for not pass in time to take advantage of, or it was passed but the DPP declined to negotiate. During the company’s extensive lobbying, its representatives presented Trudeau and his cabal with their “Plan B”. Plan B, SNC-Lavalin claimed, would be the company’s fallback should there be no remediation agreement: to restructure the company and relocate its headquarters or most of its operations to the United Kingdom.
That March, Wernick prepared a memorandum addressing “Plan B”. He had learned that SNC-Lavalin had loans outstanding with Quebec’s Caisse de dépôt et placement whose covenants required it to keep its headquarters in Quebec until at least 2024. The memo concluded that it “remained unclear, therefore, what SNC-Lavalin’s ‘Plan B’ entailed.” SNC-Lavalin, it seemed, was issuing threats that were empty if not deceptive.
Thanks to Wernick’s work, it would have quickly become clear to everyone in the cabal that SNC-Lavalin’s departure was not imminent and any “Plan B”, if it was carried out at all, would bring a far smaller downsizing than the claimed loss of 9,000 well-paying middle-class Canadian jobs that were being bandied about. Trudeau and his cabal would make this evidently fictitious claim central to their pressuring of the Attorney-General, as well as in their attempted justification of their behaviour – including Trudeau’s continuing self-righteousness regarding his motives.
Even setting aside the issue of their truthfulness, the purported job losses were legally irrelevant. The “national economic interest” is specifically excluded from being considered in whether to prosecute or mediate, and a single company’s woes do not come close to that level. Nor is claiming an appeal to the “public interest” credible, except through a grotesque misapplication of the term. The term refers to every prosecutor’s duty to see that justice is done. It has nothing to do with the business fortunes of a given company or the electoral fortunes of a given politician, however high-ranking.
In addition, even the outright demise of SNC-Lavalin would have zero impact on Canada’s GDP or overall employment. Unlike in the case of, say, a manufacturing facility shutting down because Canadian labour costs grew too high or its market had softened, Canada’s engineering and construction market hadn’t changed as a result of SNC-Lavalin’s misbehaviour. The work was still there, including massive public infrastructure projects. SNC would simply be forbidden to bid on federal contracts (unless it received another special government dispensation). But should SNC-Lavalin itself shrink or disappear, its competitors would gladly step in, and their revenues and employee rosters would grow accordingly. Thus, it was not “jobs” in general that Trudeau cared about, but rather SNC-Lavalin jobs in particular, especially in one particular federal constituency. This was hardly the public interest at all, but a set of private interests.
At his meeting with Wilson-Raybould on September 17, 2018, Trudeau advised her that if SNC-Lavalin did not gain a remediation agreement, it would move from Montreal and there would be many jobs lost, as indicated in paragraphs 97-99 of Dion’s report. Wernick, who was present, did not intervene to dispel this fantasy, despite knowing it was far from clear that SNC-Lavalin could even move from Montreal, or how many jobs might be lost from that company. Indeed, Wernick reiterated SNC-Lavalin’s threat to relocate to the U.K.
The following month, senior Trudeau advisor Bouchard confirmed with the Caisse’s CEO that it was “working to ensure that no relocation would occur.” Dion found that this information was withheld from the Attorney-General. Instead, the spectre of job losses caused by a criminal conviction remained in the cabal’s pressure tactics. It is pointless to argue, as Wernick does in his own defence, that the Attorney-General’s decision is never final because she can always revisit it should new facts come to light. The cabal had no facts to support its claims, and new facts that arose were suppressed because they argued against Trudeau’s preferred course.
Throughout last fall, Trudeau and his cabal continued trying to convince Wilson-Raybould that the DPP had not taken sufficient account of the “public interest” – that alleged evaporation of jobs. But they were misleading her about their size, imminence and likelihood. The cabal’s members promoted this false narrative relentlessly for months, despite being informed at least 20 times that they were breaching prosecutorial independence by doing so. If such a concerted effort to mislead the Attorney-General, with the objective of having her change her decision, doesn’t meet the definition of “wilfully attempting to obstruct, pervert, or defeat the course of justice,” it is difficult to conceive what might.
The second egregious tactic involved inundating the cabal and, through them, the Attorney-General, with legal opinions or interventions from no fewer than three retired Supreme Court Justices. As summarized in Trudeau II, paragraphs 165-168:
“According to SNC-Lavalin, its legal counsel, former Supreme Court Justice Frank Iacobucci, prepared a legal opinion that was to be shared with the Minister of Justice and Attorney General. It outlined the legitimacy for her to intervene in criminal matters seized by the Prosecution Service. Mr. Iacobucci’s legal opinion was shared with Mr. Brison in a November 2, 2018 email from Mr. [Rob] Prichard [former president of the University of Toronto]. In the email, Mr. Prichard wrote: ‘We are also considering other ways to make it easier for the Minister to engage and reverse the [DPP’s] decision. In the end, however, it will take a deliberate decision from the centre…’ [emphasis added]
Mr. Iacobucci [also] requested an opinion from former Supreme Court Justice John Major, on whether the failure of the Director of Public Prosecutions to provide any reasons for her refusal to invite SNC-Lavalin [to negotiate a remediation agreement] was unlawful and whether the refusal itself was unlawful…According to documentary evidence, an SNC-Lavalin representative hand-delivered a copy of Mr. Major’s opinion to [Finance Minister] Mr. [Bill] Morneau’s chief of staff and senior advisors in the Prime Minister’s Office.”
Wilson-Raybould would later testify that she did not see either of the aforementioned legal opinions and was not made aware of their contents. Nor have these yet come to light. The documents are protected by solicitor-client privilege, which Dion correctly declined to breach. Both opinions did, however, appear to motivate the cabal to persist in their attempts to get Wilson-Raybould to reconsider “other options”, as the report puts it, and override the DPP’s decision.
As Dion writes on paragraph 275, “The evidence showed that the legal opinions prepared by or for the benefit of SNC-Lavalin were shared with and reviewed by the Prime Minister’s Office and other ministers and ministerial staff in November 2018, with the sole purpose of persuading Ms. Wilson-Raybould to reconsider her position.” (Emphasis added.) While Dion’s wording is dry, the impropriety of this secretive, manipulative tactic is difficult to overstate.
When these two bought-and-paid-for legal opinions failed to have their desired effect on Wilson-Raybould, SNC-Lavalin filed for judicial review of the DPP’s decision and persuaded members of the cabal to intercede with Wilson-Raybould in an attempt to get her to hire “someone like” retired Chief Justice of Canada Beverley McLachlin to provide an “independent, expert” opinion on the matter. The ground for this had already been prepared for, as Dion shockingly writes, “Mr. Iacobucci had reached out to Ms. McLachlin and provided her with the file for review.” McLachlin responded that she was no longer a lawyer, and so could not provide an expert opinion, but would be willing to meet with Wilson-Raybould.
A couple of weeks later, Butts asked Marques to reach out to McLachlin again, to confirm her interest in that mandate. The hoped-for resolution would, of course, be for Wilson-Raybould to agree to negotiate a remediation agreement instead of fighting more court battles. At this point, the Cabal’s tactics appear to have been a bit muddled. They seem to have proposed both that Wilson-Raybould seek an “independent” opinion from McLachlin and that she appoint McLachlin mediator, or perhaps they proposed the one and hoped for the other.
The application for judicial review was hopelessly weak. As Dion notes on paragraph 324, Iacobucci himself co-authored, along with his then-colleague Major, the leading Supreme Court of Canada decision that insulated prosecutorial discretion from judicial review. What, then, could have been the application’s purpose? It had the effect of creating an immediate dispute. This could, in turn, give the cabal an excuse to pressure Wilson-Raybould to agree to a mediation process, where they could insert their suggested mediator.
A mediator to a dispute must be completely independent and impartial, untainted by prior relationships with either party. McLachlin had been solicited by Iacobucci and had been given the file to review in advance of any engagement. This would automatically bar her, certainly ethically and perhaps even legally, from functioning as a mediator. It was dishonest for the cabal to have suggested McLachlin’s involvement without notifying Wilson-Raybould that she had already been briefed by SNC-Lavalin’s lawyer. It would have been highly unethical for McLachlin to have accepted the mediation engagement without first telling Wilson-Raybould about her prior contacts with Iacobucci on the matter at hand – a revelation that surely would have ended the conversation.
With respect to the use of the bought-and-paid for legal opinions: the Attorney-General is the named party and ultimate decision-maker in all legal cases involving the Crown. She has authority to proceed or settle or stay the case; and to select, approve or direct litigation strategy. She does so with the advice of a team of lawyers in the Public Prosecution Service, through the office of the DPP (which was established under Trudeau’s predecessor, Conservative Prime Minister Stephen Harper).
Iacobucci was the lawyer for the party in opposition to the Crown, SNC-Lavalin. Communications in legal actions have specific strictures: each party is expected to communicate with its own lawyers, and each party’s lawyers then communicate with one other, or with the court. One lawyer should never circumvent the other side’s lawyer and communicate directly with the opposite party. It is especially egregious to do so in an attempt to discredit the other side’s lawyer, or to undermine the other side’s confidence in their lawyer. These are breaches of the lawyers’ code of ethics that, it could be argued, are serious enough to warrant disbarment. In Ontario, the sections prohibiting communications with a represented party or the ultimate decision-makers within an organization are 7.2-6 and 7.2-8. Many other sections of the code, e.g., prohibiting dishonesty on the lawyer’s (3.2-7) or their client’s (5.1-2) parts, could be relevant as well.
While Iacobucci did not hand-deliver his legal opinions directly to Wilson-Raybould, he distributed them among mutual associates. It would seem a reasonable expectation they or their contents would be used to pressure Wilson-Raybould into adopting the resolution his client sought. And their contents were so used. On numerous occasions last fall, Wilson-Raybould told members of the cabal that if SNC-Lavalin wanted her to be aware of something – if they had new information or legal arguments – there was a process for that: have their lawyer put it in a letter, and send it to the DPP. But they did not do it this way. Their objective, it seemed, was to circumvent the Crown’s lawyers and pressure the Attorney-General in the absence of her own independent legal advice. If that, too, doesn’t amount to a wilful attempt to obstruct, pervert, or defeat the course of justice, it is difficult to conceive what might.
In this light, it was somewhat disappointing to see Dion exonerate the politicians, political staffers, and public servants involved. His reasoning is surprisingly weak given the competence with which he handled the rest of the file. The substance of this exoneration is found in paragraphs 282-285, wherein Dion states that the other actors “could not have influenced the Attorney General simply by virtue of their position.” Instead, “Mr. Trudeau was the only public office holder who, by virtue of his position, could clearly exert influence over Ms. Wilson-Raybould.”
These statements betray an impoverished notion of “influence.” It is true that only Trudeau had the power, by virtue of his office, to impose his will on the situation. But influence takes many and varied forms, ranging from weak and ineffectual to overwhelming. Completely vulnerable children, for example, can have a great deal of influence over their parents simply by crying or acting adorable. Peer pressure has long been recognized as having profound influence on teenagers. Organizational culture is typically more influential on the behaviour of employees than written codes of conduct – sometimes more even than direct lines of authority. Charisma, sex appeal, and an air of competence also bring considerable influence. Nagging, badgering, and bullying are further forms of influence that can have life-or-death consequences. The distinction between influence and power is covered in, for example, second-year political science courses on international relations. Focusing on the raw power of an office, therefore, is simplistic and seems misguided.
Trudeau’s cabal had access to the Attorney-General by virtue of their public offices, and they used it liberally to seek to influence her. The standard of guilt in conflict-of-interest legislation does not require a public office holder actually to have the power to achieve their prohibited objective. It is an offence, as stated in paragraph 246 of the report, for a “public office holder [to] use his or her position as a public office holder to seek to influence a decision of another person…” It is the attempt to influence, no matter how it turns out, that is wrong. Every one of the cabal who importuned the Attorney-General on the SNC-Lavalin matter used their association with the Prime Minister – their “office” – to “bend the will” of Wilson-Raybould, in Dion’s apt turn of phrase. Given the law and their actions, as the willing and eager instruments of Trudeau’s power, they would seem to be just as guilty of conflicts-of-interest as he was.
On February 7, 2018, Trudeau convened a press availability to deliver the now infamous statement, “The allegations in the Globe [and Mail] story this morning – are false.” In retrospect, everyone was too quick to conclude Trudeau was lying when he said that. The truth is that the allegations in that long-ago Globe and Mail story were far, far too mild and inconsequential to be considered true.
SNC-Lavalin was not a strong candidate for a remediation agreement for the obvious reason that the company had not really reformed itself. This was, after all, a company that in its zeal to continue making money had engaged in massive and ongoing corruption of foreign officials – mainly on foreign shores, but also on Canadian soil. Now, it was desperate to obtain a “get out of jail free card.” Is it any surprise SNC-Lavalin chose whatever tactics would seem to work?
Grant A. Brown has a DPhil from Oxford University and an LL.B. from the University of Alberta, taught applied ethics and political philosophy at the University of Lethbridge, practised family law, and currently runs a B&B in Stratford, Ontario.