A SELF-INFLICTED WOUND (PART I)

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!

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