Last year, the New York State Bar Association Journal picked up an article I wrote on the Trump Administration’s barrage of assaults against the rule of law.
Except you wouldn’t know it.
Before publication, the editors decided to remove my references to specific events demonstrating the President’s clear and present disregard for that unassailable maxim, which posits that any exercise of public power must be grounded in a legal rule; no one is above the law; and there is one law for all.
My purpose was not partisan. You see, I’m Canadian. I don’t vote in U.S. elections and I have no more skin in the game than any other concerned citizen of the world. In the same breath, I called out Canada’s Minister of Finance, a liberal-elitist foil to Trump’s conservative populism, for his own missteps.
Missteps. It sounds almost quaint, doesn’t it?
My editors’ intention was not subversive. They wanted to appeal to a broad, ideologically diverse audience (as ideologically diverse as a group of New York state lawyers can be). Introducing politics to the mix would have risked alienating readers and deflating my message.
But that message—that we must act to strengthen rule of law norms in our communities—is inescapably and rightly political. Without positive reinforcement, the rule of law begins to rot.
Closer to home, we see the evidence of this decomposition. On February 7, the Globe and Mail reported that members of Prime Minister Justin Trudeau’s staff “pressed” the former Minister of Justice and Attorney General of Canada, Jody Wilson-Raybould, to halt the criminal prosecution of Canada’s largest engineering and construction company, Montreal-based SNC-Lavalin.
Among other allegations of fraud and corruption, SNC is charged with bribing Libyan officials to the tune of $48 million to secure construction contracts between 2001 and 2011, contrary to the Corruption of Foreign Public Officials Act. If convicted, the Government of Canada’s own Integrity Framework would disqualify SNC from bidding on federal government contracts for five to ten years. Without that business, some have argued SNC could go bankrupt and thousands of Canadians could lose their jobs.
But what of the integrity of the prime minister? By his own admission, the prospect of mass layoffs, including hundreds in reliably Liberal Montreal, was a concern for the Liberal Trudeau.
As head of the government, his concern for Canadians’ livelihoods would have been legitimate whether or not he saw electoral advantage in pressing the Attorney General to intervene in SNC’s case. However, what makes matters worse is that SNC has a shady record of giving over $100,000 in illegal campaign contributions to the Liberal Party of Canada and its affiliates—the same people who now call Trudeau their leader. In other words, it appears to be no accident that this particular file captured his attention. In fact, SNC lobbied the Prime Minister’s Office no less than 19 times since the start of 2017.
When he was confronted with allegations of attempting to improperly influence the Attorney General, Trudeau said neither he nor his staff “directed” Wilson-Raybould to intervene in the SNC file. That response was roundly criticized as a non-answer: the allegation was that his office pressed the Minister of Justice to intervene in the prosecution, not that he directed her to do so.
Although the sources behind The Globe’s allegations were anonymous, the story had legs. It seemed to explain, for example, why Wilson-Raybould, the first Indigenous person to lead the Justice Department, was unceremoniously dumped from that post only three weeks earlier. And it was consistent with a rare open letter, published by the former minister after her demotion, in which she asserted that she’d had “to speak truth to power.”
Wilson-Raybould described her job as Minister of Justice and Attorney General as follows:
The Minister of Justice and Attorney General of Canada is somewhat distinct from other Cabinet Ministers because the role is a dual one. The Minister of Justice is the legal advisor to Cabinet. In this capacity, the Minister is concerned with the administration of justice, including policy in the areas of criminal law, family law, human rights law, and Indigenous justice. The role of the Attorney General of Canada carries with it unique responsibilities to uphold the rule of law and the administration of justice, and as such demands a measure of principled independence. It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. This is how I served throughout my tenure in that role.
In the wake of accusations that Trudeau’s office put inappropriate pressure on her to cut SNC a deal, Wilson-Raybould remained conspicuously silent. In her opinion, solicitor-client privilege prevented her from commenting because she was the government’s top lawyer at the time of the alleged interference by the Prime Minister’s Office.
Political observers noted that Wilson-Raybould’s position was untenable: only she could corroborate the prime minister’s denial. She would have to publicly agree with Trudeau or else resign from Cabinet on principle.
So, on February 12, Jody Wilson-Raybould—the woman whose grandmother gave her the Kwak’wala name Puglaas, meaning “woman born to noble people”—resigned.
But that would not be the last we heard of SNC.
Facing mounting pressure to allow Wilson-Raybould to answer whether she felt pressured to stop the prosecution, the prime minister took the unprecedented step of waiving solicitor-client privilege and Cabinet confidentiality. This enabled her to testify before the House of Commons’ Justice Committee about the exercise of her authority on the SNC prosecution while she was still Attorney General.
To say that her testimony was explosive would be an understatement.
In a 38-minute-long opening statement, Wilson-Raybould described “a consistent and sustained effort” by people at the highest levels of government “to politically interfere in the exercise of prosecutorial discretion in my role as the Attorney General of Canada in an inappropriate effort to secure a Deferred Prosecution Agreement with SNC-Lavalin.”
Four days later, another Cabinet minister resigned in protest over Trudeau’s handling of the SNC affair. This time, it was the President of the Treasury Board, Dr. Jane Philpott, who tweeted: “It is a fundamental doctrine of the rule of law that our Attorney General should not be subjected to political pressure or interference regarding the exercise of her prosecutorial discretion in criminal cases. Sadly, I have lost confidence in how the government has dealt with this matter and in how it has responded to the issues raised.”
The prime minister’s response? He and his office did nothing inappropriate. Removing Wilson-Raybould from her post as Attorney General had nothing to do with her obstinance on the SNC file. It was all just a “pretty serious difference of opinion.”
So, what does this all mean?
First, there is no real doubt as to whether Wilson-Raybould’s allegations are true. They are. The question is whether the government’s attempts to intervene in the SNC prosecution were inappropriate. Wilson-Raybould clearly thought they were.
Second, the resignations of Wilson-Raybould and Philpott do not exactly inspire confidence in Canada’s current administration of justice. Nor, for that matter, do the early “retirement” of Canada’s top bureaucrat, Michael Wernick, and the resignation of Trudeau’s principal secretary, Gerald Butts. Both men were directly involved in trying to convince Wilson-Raybould to change course on SNC after she says she had made up her mind. That the former two felt strongly enough about this issue to sacrifice their enviable privileges as Ministers of the Crown to sit as backbenchers in Parliament suggests something is rotten in the state of Canada. That the latter two left at all betrays their insistence that they had done nothing wrong.
Third, if one accepts Wilson-Raybould’s statement that democracy demands our leaders to eschew “even the perception of political interference,” and I do, then Trudeau has already lost the battle. Maybe Wilson-Raybould could have done more to make it clear to those involved that her decision was final—for instance, by reducing her decision to writing. Maybe she ought to have taken more time before deciding not to intervene. Maybe she ought to have resigned sooner. What transpired looks bad regardless, and the mere appearance of impropriety tends to undermine confidence in the administration of justice and in our public institutions.
Fourth, this saga shows that even in relatively robust democracies like Canada, money in politics and undue corporate influence continue to threaten the rule of law. We are having this conversation about SNC now only because the company successfully lobbied the government for changes to the Criminal Code, which came into force last Fall. These amendments, nonsensically buried in section 404 of Budget Implementation Act, 2018, No. 1, give prosecutors the discretion to enter into a remediation agreement with a corporate offender and avoid trial if it is in the public interest to do so, subject to certain criteria. Other jurisdictions refer to them as Deferred Prosecution Agreements. Think of them as out-of-court settlements in which the corporation admits wrongdoing, pays a fine, and makes changes to its governance to prevent the company from reoffending.
Most accused persons could never hope to persuade the prosecutor to drop their case, far less convince the government to change the law mid-prosecution, giving them a Get Out of Jail Free card. SNC’s experience raises the unshakable perception that there are two brands of justice: one for the rich and well-connected, and another for everybody else.
Fifth, fighting for the rule of law is no easy task. It takes courage and conviction and a willingness to put principle above party. One might expect Wilson-Raybould and Philpott to be feted for standing up for a cornerstone of our constitutional democracy. Instead, on April 2, Trudeau cut ties with the women, kicking them out of the Liberal Party caucus 54 days after the allegations of political interference first came to the public’s attention. Now they must serve the remainder of their terms as independents and are prohibited from running under the Liberal banner in this October’s election.
At least one MP has argued that the expulsion was itself illegal.
In justifying his decision, Trudeau said it was “unconscionable” that Wilson-Raybould had tape recorded a telephone conversation she’d had with Wernick. But that distracts us from the essential point: the recording proved that Wilson-Raybould was telling the truth; that she told the government she felt pressured; and that the executive’s continued efforts to interfere in the SNC prosecution were inappropriate.
Yes, it was an extraordinary step to secretly record another government official, but these were extraordinary circumstances.
Ejecting these two whistleblowers from caucus will have a chilling effect on those who would stand up for the rule of law in the future. In this respect, Trudeau’s message is clear: he will punish the child for the sins of the father.
Canadians are split on whether the SNC affair is a legal or a political issue. In truth, it is both. Constitutional norms, like the rule of law, do not exist in a vacuum. They depend on all people—not only politicians—to give them effect. When we fail to cultivate rule of law norms in our communities, we allow political self-interest to overwhelm our better nature, like fungus eating away at a tree trunk.
The process stinks. It takes down giants. And it doesn’t look pretty.
But what’s left over is fertile ground from which the rule of law can rise again, stronger than ever before.
This article first appeared on the Harvard Law Students for the Rule of Law blog.