The Lavalin Affair: The letter that was never written

Former Minister of Justice and Attorney General Jody Wilson-Raybould

 

As was the case with many Canadians, last Wednesday I couldn’t get any work done.  I sat glued to my 70 inch television watching the riveting testimony of former Minister of Justice and Attorney General Jody Wilson-Raybould as she testified before the House of Commons Justice Committee.  I was so convinced that her testimony would be ground breaking that I set my PVR to record both the testimony and the following commentary by pundits on both channels that were broadcasting the historic event.

And the former Attorney General did not disappoint.  Many had speculated that in her testimony Wilson-Raybould would  ‘nibble around the edges’ and perhaps create a weak ‘he said-she said’ scenario.

Wrong, there was no nibbling around the edges.  Wilson-Raybould got right to the heart of the matter.

Less than 10 seconds into her opening statement, Wilson-Raybould hit us with this statement:

“For a period of approximately four months, between September and December of 2018, I experienced a consistent and sustained effort by many people within the government to seek 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.”

Of note is that she did not say in her role as Minister of Justice and Attorney General, rather, just in her role as the Attorney General.

This made it very clear that she had a firm grasp of her postion and the difference between her dual roles.  On one hand she was the Minister of Justice, a member of the cabinet;  on the other, she was the Attorney General, two very separate and distinct roles.  Two very distinct roles that dictated two very different types of communication and interaction that cabinet colleagues, the Privy Council office, the PMO and the Prime Minister himself could have with her.  As the minister of Justice they could communicate with her politically, however in her role as the Attorney General the communication needed to be on a legal basis as outlined by law and convention.

It would appear that this distinction was lost on the Prime Minister,  the Clerk of the Privy Council and political staffers in the PMO.  Not only did they blur the lines, they obliterated them.

There is one point that I’ve thought a lot about since I watched Ms Wilson-Raybould’s testimony and listened to endless commentary and the opinions expressed in the subsequent media coverage.

Much has been made of the fact that the former attorney general would not take into consideration the so called ‘additional information’ being pushed forward by SNC-Lavalin through the Prime Minister and other political entities.

The fact is, Ms Wilson-Raybould did provide the opportunity for SNC-Lavalin to advance their legal argument in an appropriate manner.

During her September 19th 2018 meeting with the Prime Minster, also attended by the Clerk of the Privy Council, she made the following offer:

I offered that if SNC were to send — I offered to the clerk, if SNC were to send me a letter expressing their concerns, their public interest arguments, it would be permissible, and I would appropriately forward it directly to the director of public prosecutions.

This offer was never followed up on by SNC-Lavalin.

The question is, why not? The answer is:  the former attorney general made an offer to SNC-Lavalin to mount a legal argument.

The reason SNC-Lavalin did not respond is that in all likelihood they understood that they did not have a strong legal argument to make, in favour of a deferred prosecution agreement.

SNC-Lavalin through their pressure on government wanted the government to arrange a  political solution to a legal problem.

The Prime Minister, the PMO and the Clerk of the Privy Council  through their “sustained effort”  to “politically interfere in the exercise of prosecutorial discretion” attempted to deliver exactly what SNC-Lavalin wanted: a political solution for a legal problem.

But for the resolve, courage and integrity displayed by Jody Wilson-Raybould, they might have succeeded.