Justin Trudeau and the Ethics of Interference

Submitted by Dr. Binoy Kampmark

Ethics can be a slippery matter and Canada’s Prime Minister Justin Trudeau has taken, rather decidedly, the option of adding more grease.  His understanding over the ethics, for instance, of interfering in the decision-making process involving an Attorney-General has led to a little bit of history: Trudeau finds himself the first Canadian prime minister to be in breach of federal ethics rules.

In recent months, Trudeau’s crown has lost much of its lustre.  The SNC-Lavalin affair has been a primary contributor, a millstone gathering weight around his now very bruised neck.  The company had found itself in a spot of deep bother over bribing Libyan officials, a point it claimed in February 2015 was the result of “alleged reprehensible deeds by former employees who left the company a long time ago.”  Then came a 2018 law offering mild relief: the prospect of a fine rather than a conviction.  Business could go on as usual.

The question on the lips of the political fraternity was to what extent Trudeau’s office, and he personally, attempted to pressure the ex-Attorney General Jody Wilson-Raybould that taking SNC-Lavalin to trial would be costly in terms of jobs and votes in Quebec.  A bribery and fraud conviction against the company would have barred it from bidding on federal contracts for 10 years, with current contracts cancelled by the federal authorities

In early February 2016, it became clear that the company was putting the word out to Trudeau and various government bodies that a remediation agreement was desirable.  The prime minister seemed convinced the company was keen to reform, a point used to avert the disruptive prospect of having cancellations of contracts covering, amongst others, the Gordie Howe International Bridge project and Montreal’s light rail project.

Wilson-Raybould found herself cornered and badgered, taking issue with Trudeau’s evident bias towards SNC-Lavalin.  Her refusal to overrule the decision of the prosecutors to refuse pursuing the remediation option led to her demotion in January’s cabinet reshuffle.  This, in turn, precipitated a lusty round of bloodletting: the removal of Wilson-Raybould and Jane Philpott of the Treasury Board from the Liberal caucus, the resignation of Trudeau’s top personal aide Gerry Butts, and the early retirement of the head of the federal bureaucracy, Michael Wernick.

The entire affair also prompted an examination request to the Ethics Commissioner by Charlie Angus, MP for Timmins-James Bay, and Nathan Cullen, MP for Skeena-Bulkley Valley.  Their concern: that the Prime Minister and his office had pressured Wilson-Raybould to instruct the Public Prosecution Service of Canada to seek a remediation agreement with SNC-Lavalin.  This suggested, argued Angus and Cullen, preferential treatment by an office holder towards a particular person or entity, something prohibited by section 7 of the Conflict of Interest Act.

While Ethics Commissioner Mario Dion was not convinced that section 7 held the necessary water, section 9 prohibiting a public officer holder from using their position to seek to influence a decision of another person to further their own private interests or those of a relative or friend, or to improperly further another person’s private interests, was quite a different matter.

Dion showed little sympathy for the Trudeau line of interference.  “The Prime Minister, directly and through his senior officials, used various means to exert influence over Ms Wilson-Raybould.”  SNC-Lavalin “overwhelmingly stood to benefit from Ms Wilson-Raybould’s intervention”.  The prime minister’s actions were therefore “improper since the actions were contrary to the constitutional principles of prosecutorial independence and the rule of law”.

The findings by Dion also serve a historical diet on the independence – aspirational or otherwise – of certain office holders, with the Attorney General being a singular creature in the scheme of government.  Such an office holder had a “unique perspective” in being a Cabinet member but also one who had to be “independent of Cabinet when exercising their prosecutorial discretion.”  It was a role, and a distinction inherent in it, that had clearly been “misunderstood” by Trudeau.

Dion was also wise enough to make a salient reference to Lord Hartley Shawcross’ views on the matter.  As Attorney General of England and Wales, Lord Shawcross explained to the UK House of Commons in 1951 that the Attorney General was “not obliged to, consult with any of his colleagues in the government” in making decisions pertinent to a prosecution.  The AG might well be informed and assisted by colleagues on matters assisting in reaching a decision, but never “in telling him what that decision ought to be.”

Trudeau’s statement of response is the mildest of efforts at contrition (“I can’t apologise for standing up for Canadian jobs”), a backhanded thank you to the Ethics Commissioner, a grudging acceptance that Parliamentary officers be independent, and an ultimate sense that his conduct had been, in the final analysis, proper in most respects, even if he did “take full responsibility”.  “The Commissioner took the strong view that all contact with the Attorney General on this issue was improper. I disagree with that conclusion, especially when so many peoples’ jobs were at stake.”

Such apologetics are padded by a good dose of self-congratulation.  “Our government has made tremendous progress over the last few years, for seniors, students, workers, families, and newcomers.”  The issue of jobs is the re-iterated barb.  “We have always fought to create and protect jobs, to invest in Canadians, and to strengthen the middle class at the heart of our country’s success.”

The consequences for such findings for Trudeau might prove the telling blow come the October elections.  Conservative leader Andrew Scheer smells blood and is demanding a police investigation.  The Royal Canadian Mounted Police has expressed interest.  Other commentators will simply remember that Trudeau has form on this.  In December 2017, he was found in breach of conflict of interest rules in accepting a vacation to be on the Aga Khan’s private island.  At least then, he thought apologising a wise move.  Trudeau the cynic has been outed.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com