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How We Handle Scandal

The SNC-Lavalin affair isn’t just about choosing the next prime minister, noted the Opposition leader at a conservative gathering this weekend. What it's really about is protecting the very concrete, very practical division of responsibilities that comprise our legal system.

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How We Handle Scandal March 25, 2019  |  By Peter Stockland
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Andrew Scheer contributed significantly to Canadian political life by telling a weekend conservative gathering the SNC-Lavalin affair isn’t just about choosing between Justin Trudeau and Andrew Scheer.

He did further good by making clear SNC-Lavalin isn’t even just about an abstraction called the rule of law. It is, he spelled out for those attending the annual Manning Networking Conference in Ottawa, about protecting the very concrete, very practical division of responsibilities that comprise our legal system.

In our system, the Official Opposition leader reminded, we do not tolerate political pressure on the police during the investigative phase of potential wrongdoing. Nor would we ever countenance such intrusion, overt or subtle, on a judge weighing evidence to make a ruling. Of a piece with that, Crown prosecutors must be fiercely protected from external actors as they decide whether to proceed with charges and trial.

It’s a reminder at least as important as anything that might come out of tomorrow’s Ethics Committee meeting on SNC-Lavalin. The very need for a key Parliamentary figure such as Scheer to go back to basics in front of a crowd of case-hardened political obsessives demonstrates the importance of his contribution. Indeed, it almost makes up for his own misstep earlier this year when he demanded, wildly prematurely, the prime minister’s resignation as the scandal gathered steam.

Scheer’s early maladroitness risked diverting SNC-Lavalin into yet another hum-drum story of Opposition parties seeking electoral advantage by whooping about alleged government malfeasance. We have wavered in that direction numerous times since. The Opposition Leader’s weekend comments, then, can be taken as recognition that he, too, must be part of the effort to keep rigorous focus on what truly matters in the scandal.

What matters is the profound threat of institutional damage if those who work within the component elements of our legal system begin to feel hot, sour political breath scotching their necks and shoulders. What matters is that it won’t matter one whit who is the prime minister of the day if we lessen by an iota our vigilance in protecting them. What matters is that democracy cannot survive when equality before the law becomes a cynical joke, which is what the SNC-Lavalin affair portended.

The political seductiveness of advancing the interests of a massive corporation centred in the prime minister’s home province is a given. Precisely for that reason, we must never give away the prerogative of a prosecutor to decide that the interests of justice are paramount to such political considerations.

It’s here that Andrew Scheer’s weekend comments substantially clarify and edify. Even factoring out partisan electoral rhetoric, Canadians have come to discuss SNC-Lavalin as very much a contest between former Attorney General Jody Wilson-Raybould and various players in the Prime Minister’s Office, up to and including the PM himself. Indeed, a staple of the Liberal defence has been that it was all just an intra-office personality-driven misunderstanding.

Such a way of telling the tale obscures the crucial detail that the initial decision to proceed to trial was not Wilson-Raybould’s to make. Further, I have not heard anything to make credible the idea that she took an activist role in pushing for prosecution of SNC-Lavalin.

What she did, based on her testimony to the justice committee, was support the judgement of her direct report, the director of federal prosecutions. What she did, from everything I’ve heard, is affirm that nothing she saw in the discernment process led her to overrule the decision of a highly qualified Crown prosecutor.

It’s a distinction that makes a massive difference to the way we’ve come to understand and talk about the scandal. It kicks the props, for example, out of the argument that Wilson-Raybould could, under the legislation allowing for so-called deferred prosecution agreements, have intervened. Yes, she could have. But nothing in front of her justified, in her mind, taking the active step of setting aside the judgement of the individual responsible for judging the best way to take the case forward for judgement. Entirely reasonably, she refused to let others interfere with her own best judgement. By so refusing, she precluded any interference cascading down through the legal system and undermining the best judgement of those who report to her.

Remember, after all, that the whole debate around the prosecution of SNC-Lavalin is whether the criminal charges facing the company should go before a trial judge. Andrew Scheer’s significant contribution reminds all of us that the very process of how we arrive at legal judgement must be defended without fail. Such defence must always stand outside politics regardless of the prime minister of the day’s name.


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