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A lifetime ago, in my late teens and early twenties, I was a very busy young man but somehow found time to indulge a fascination with conspiracy theories surrounding the assassination of US President John Kennedy.  That obsession provided a platform for discovering the intricacies of many arcane and sinister concepts, including the murky relationship between Organized Crime and the CIA, the anomaly of the supposed Pro-Soviet and Anti-Castro inclinations of Lee Harvey Oswald and, most fundamentally, the difference between bullet entry and exit wounds.  It is this latter expertise that I find myself reflecting upon as I consider the second of my examples of self-inflicted political damage.

You will recall that last month I described how the Trudeau Liberals had created a legislative discretion around criminal prosecutions of corporate wrongdoers that was virtually certain to create an ethical minefield for itself, independent of any opportunism or naivete that one would choose to ascribe to Jody Wilson Raybould.  The resulting wound is nasty and entirely self-inflicted, but, as a long-standing expert in such things, looks to me like an entry wound; neat and tidy.  Once the blood is cleared away it can heal and leave only a little mark reminding the party not to be so careless when handling guns.

This is in sharp contrast to the Brexit wound that the Conservative party in Britain has inflicted on itself.  That has blasted a hole in the party and sent blood and bits of skull and brain everywhere.  Healing that kind of wound is much more difficult.  Even if you can stop the bleeding, the bits and pieces that have been blown away are not easily refitted back into place let alone returned to function.  And all, again, because of careless handling of a firearm.

Back in 2015, then UK Prime Minister David Cameron (we coincidentally share two-thirds of the same name!) came up with a brilliant idea to address the minority caterwauling about the compromises that EU membership visited upon the UK: he would hold a referendum on leaving the EU to shut them up once and for all.  It was a little like when a parent packs a bag for a whining 8-year old that wants to run away rather than clean up his room and, lest we Canadians snicker too much at the foolishness of the strategy, not entirely dissimilar from the approach we have taken not just once but twice with respect to Quebec’s demands for independence.

The logic was simple:  such a disruptive proposal would meet certain defeat, and the United Kingdom Independence Party and anti-EU caucus members within the Conservative Party would thereafter see their platform evaporate as a question that had been asked and answered.  The question would also be simple: should the UK remain in the European Union, or should it leave?  However, much like asking the petulant 8-year old whether he wanted to continue to live under Mom and Dad’s rules or not, the question was a little too simple for an extremely nuanced issue.  While the resulting Yes vote was not razor thin (51.9%), it is not hard to imagine that it would have been materially different if it had included even just one of the multitudes of complexities that would obviously be part of giving effect to a Leave vote.  If the question had even just been “Do you support the UK leaving the EU even if it means breaching the Good Friday Agreement by establishing a hard border between Northern Ireland and the Republic of Ireland?”, it is not hard to imagine that the risk of a return to sectarian violence would have been enough to shift the outcome. It would not have been hard to add a couple of other equally stark provisos with respect to other foreseeable outcomes of the vote that would have been equally sobering.

There is an oft-cited axiom with respect to the cross-examination of witnesses in trials – never ask a question if you are not completely sure of the answer.  That concept should have saved this process.  After all, many if not most politicians are lawyers.  As the politicians now fruitlessly attempt to sort through the painful details and risks inherent in exiting the EU, the problem becomes clear.  There are obviously too many solicitors and not enough barristers in government.



Sometimes political scandals that evolve into full blown crises are borne of true skullduggery – Machiavellian intrigues engineered out of sight that remain forever opaque, masked by plausible deniability with respect to actions dragged into public attention only by the heroic efforts of intrepid reporters or incorruptible truth-tellers.  But other times, governments stumble into eminently foreseeable peril as a natural consequence of public policy initiatives that are proposed, debated and enacted in the full view of the public.  I would argue that it is far more often the latter than the former that is the true root of political embarrassments, and I think the reasons we think otherwise is two fold: we far prefer the good v. evil narrative of the hidden agenda and the fact that to admit that it was all done in plain sight makes the media and pundits, the theoretical watchdogs of our legislators, just a teensy bit complicit in the negligence.

A perfect example of this phenomenon is the current kerfuffle involving Jody Wilson-Raybould’s demotion and ultimate resignation from the Liberal Cabinet.  The media is framing this as a classic “he said, she said”.  Did the Prime Minister, directly or indirectly, seek to influence then Minister Wilson-Raybould in her capacity as Attorney General to enter into a Deferred Prosecution Agreement (“DPA”) with SNC Lavalin with respect to the charges relating to the allegations of a long history of bribery in Libya?  Did her refusal to yield to that pressure result in her demotion in the ensuing Cabinet shuffle?  The drama of this intrigue has been deflated a little bit because the Prime Minister has only sort of said “no” to the first question and “not entirely” to the second, but former Minister Wilson-Raybould has not yet provided her version of events beyond what can be presumed from her cryptic resignation. It sure sounds like the upshot of some nasty behind-the-scenes maneuvering.

Or is it?  Last February, the omnibus bill that was passed to implement the most recent budget included an amendment to the Criminal Code to create the possibility of DPAs as a means of resolving criminal charges brought against corporations.  No one has disputed that this provision was brought forth on the back of an extremely concerted lobbying effort by SNC Lavalin.  This provision was a last ditch effort by SNC Lavalin to avoid the automatic 10 year disqualification from bidding on government contracts that would have followed from their certain conviction on the outstanding charges.  By passing that legislation, the government knowingly inserted the ability if not the obligation upon the Attorney General to consider factors beyond the guilt or innocence of corporate wrongdoers in making decisions regarding their prosecution.

It is equally clear to all that those considerations were intended to be with respect to the economic consequences of such prosecutions.  That is evident in the known history of SNC Lavalin’s lobbying efforts, which were not at any point aimed at the Justice Minister but instead at ministers in economic portfolios.  The argument is most clearly evident in the most recent remarks of the Premier of Quebec, Legault, who even in the heat of the controversy is unapologetically demanding that a DPA with SNC Lavalin be immediately reconsidered because of the economic risk to his province should the destabilization of the revenue model of the company result in its acquisition by an entity outside of Quebec.

One does not need to find evidence of any meeting, memo, e-mail, ambiguous question or side-eye glance between then Minister Wilson-Raybould and the Prime Minister, anyone from the PMO, any Cabinet colleague or Liberal party operative to understand the position the passing of this legislation had put her in.  A loophole in the legislation governing criminal prosecutions had been urgently created by the government in which she served on the basis of very public lobbying by the corporation that was in immediate need of the exercise of the discretion that it permitted.  Then Minister Wilson-Raybould did not exercise that discretion.  Shortly thereafter, then Minister Wilson-Raybould was removed from her role as Attorney General.  When someone finally cottoned on to the conflict created by the passage of the DPA provision and raised reasonable questions about the dynamic that it created, she resigned from Cabinet and lawyered up.  I get it; I do not need to hear from Jody Wilson-Raybould on this one.

Last month, when then Ambassador Paul McCallum was musing that “it would be great for Canada” if the US dropped the extradition request with respect to Meng Wanzhou, perhaps he was just obliquely chiding the Chinese government for failing to effectively lobby for the creation of Dismissed Rendition Agreements with foreign states with respect to citizens subject to extradition proceedings.

More on another equally self-inflicted wound next month!


Who speaks for the disenfranchised?  In an era that is rightfully and finally turning its attention to reconciliation, this is a question that North American society is grappling with on a regular basis.  As a general rule, the often unsatisfactory but intellectually correct answer lies in the existing modes of political representation.  States are governed in accordance with a Constitution which defines the terms under which the governed agree to be bound by the terms of whatever authority has been created to make decisions on behalf of the collective, be that a democracy, monarchy or autocracy.  Those terms can and usually do include provisions under which the Constitution itself can be updated, but it is also almost always the case that the terms under which the rules can be changed are fairly onerous, as we can see from the American challenges in introducing gun control legislation in a country that constitutionalized the right to bear arms.

So Constitutions are marvelous things.  They document the terms under which a population has agreed to form a state, and they provide minimum guarantees of rights and processes that immigrants can evaluate in their decision to seek to join such a state.  So everyone has been provided for, right?  Not quite.  The US has a large population that are the descendants of people who did not make an even remotely voluntary decision to subscribe to the Constitution.  They were brought to the country on slave ships, and never had any say in the subsequent adoption of the Constitution that never even recognized them as individuals to whom the benefits of that document accrued until the passage of the 13th, 14th and 15th amendment to the Constitution following the end of the bloodiest Civil War in the history of the world.  Since that time, all African-Americans, including those descended from former slaves have struggled to find a truly representative voice in the political system that they neither had a role in creating nor provided their consent in joining.

As difficult as that experience has been and continues to be, Canada finds itself with an even more difficult integrative exercise.  By the time of the Civil War, no American slave had been born outside of the US and the institution of slavery.  They had accordingly never participated in an alternative collective governance model that even purported to be consensual or under which they had agreed to the imposition of restrictions on personal liberty in exchange for collective benefits.  That was and is not true of Canada’s Indigenous population.  Those populations lived in functioning communities that had their own unique and long established governance models.  Colonial powers purported to honour their status as individual nations by using treaties, not conquest, to establish the terms under which each would assert sovereignty over land and people.  However unreasonable or incomplete those treaty bargains may have been, there is no escaping the central fact that Colonial governments never purported to entirely extinguish the sovereignty of Indigenous peoples.  Ignore, subvert and denigrate certainly, but never extinguish.

So Canada finds itself in an interesting position in this era of reconciliation, particularly as it relates to resource development.  Canadian courts have imposed upon commercial interests the obligation to consult with First Nations with respect to the development of lands in which they have an historical connection.  But who speaks for such nations?  In the recent case of the Coastal GasLink natural gas pipeline, TC Energy, the developer of the new pipeline, has not only consulted with but obtained the consent of the elected band councils of each of the clans of the Wet’suwet’en nation of Northern BC to the proposed development.  Nonetheless TC Energy finds itself effectively hamstrung by protests and blockades on the proposed site led by the hereditary chiefs of many of those same clans.

Asked to assess the legitimacy of each of these purported representatives of these Indigenous populations, it is a fair guess that most Canadians would favour the elected representatives.  But those elected councils derive their authority not from a Constitution consented to by the governed but from a governance model imposed under the terms of the Indian Act by representatives of those that hope to do business with the governed.  Are they more representative than hereditary chiefs?  Maybe, probably, but that is for the governed to decide.

What this really says is that each First Nation needs a Constitution that creates a mechanism through which their participation in consultations can be governed.  This exercise in nation building cannot be led by even the most well-meaning of non-Indigenous advisers and allies.  Fortunately, the recent eruption of reconciliation initiatives has revealed that there is no shortage of Indigenous leadership with expertise and interest in this sort of project.  To capitalize on the opportunities for truly inclusive economic development presented by this era of consultative reconciliation, this process has to begin yesterday.