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There are only so many times you can slam your head against the wall in frustration without threatening the structural integrity of your house.  With Prime Minister Justin Trudeau's response to the latest development in the SNC-Lavalin scandal, we've finally had to call some repairers in.

In what may be the most tone-deaf statement made by anyone other than these two, Trudeau accepted full responsibility for Ethics Commissioner Mario Dion's findings that his office's actions were improper, while at the same time refusing to admit that they were, in fact, improper.  "I disagree with that conclusion, especially when so many people's jobs were at stake," said he.  "My objective was, and always will be, to stand up for people's jobs and livelihoods across the country, while upholding the rule of law and respecting the role of the Attorney General."

Except, as Dion outlined in his report, Trudeau did not uphold the rule of law, nor respect the role of the Attorney General, nor "fully [cooperate] with the Commissioner," nor demonstrate that thousands of jobs were actually at stake.  Worse, when asked about the question at the core of this scandal whether or not SNC-Lavalin will get a deferred prosecution agreement, instead of being prosecuted for bribery he declined to rule it out, passing the buck to Attorney General David Lametti.  Enjoy those behaviour modification sessions with the short pants, Dave.

So genuine contrition from the Trudeau government is officially off the table.  Of course, the best time to make a show of it would have been immediately after the scandal first broke.  This is Intro to Issues Management: Take unqualified responsibility, apologize to those affected, and outline how you will do better going forward  fast  instead of opening yourself up to months of attacks from your opponents and mistrust from everyone else.  Would that have been uncomfortable, even humiliating?  Absolutely.  Ideally, they wouldn't have walked into an opportunity for public humiliation with both eyes wide open.

There are many damning facets to Dion's report the disregard for prosecutorial independence, the misunderstanding of the Attorney General's responsibilities, the coziness between PMO officials and SNC-Lavalin, the continued centralization of PMO power  but there is one line that deserves particular focus.  In paragraph 308, Dion notes that according to subsection 715.32(3) of the Criminal Code, the "national economic interest" is one of three factors that a prosecutor "must not consider" "when the organization in question is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act."  Section 3 covers the bribery of public officials, which is precisely what SNC-Lavalin is accused of doing.

That is a direct quote: "must not consider."  The Attorney General and the Director of Public Prosecutions were legally, expressly prohibited from prioritizing the factor that Trudeau most wanted them to prioritize, and is still prioritizing himself to this day.  The Criminal Code itself undercuts his most frequent and compelling argument.  You might argue that "national economic interest" and "local jobs" are not synonymous, as Trudeau's counsel did.  But "[a]ccording to Mr. Trudeau, the immediate economic consequences . . . would also cascade onto other sectors of the economy."  He knew what he meant.

Furthermore, one of the other factors that a prosecutor must not consider is "the identity of the organization . . . involved."  Paragraphs 329 through 333 describe numerous instances in which PMO officials emphasized the electoral consequences of not intervening on SNC's behalf to then-Attorney General Jody Wilson-Raybould.  Trudeau himself reminded her that his riding, like SNC's head office, is in Quebec.  "In my view," Dion writes, "Mr. Trudeau made this statement to underscore . . . that Ms. Wilson-Raybould's decision not to intervene could have larger political repercussions in Quebec, both for the federal and provincial orders of government."  He regards SNC as especially deserving of intervention because it is a Quebec-based company, and Quebec is politically vital.  That is the exact opposite of not considering "the identity of the organization."

Did nobody explain to Trudeau the extent to which the DPP's hands were tied, even if they agreed with his view?  Or did he think the prospect of electoral losses would be enough for Wilson-Raybould to attempt to untie them?  Whatever was in his heart, a deferred prosecution for SNC would be rightly viewed as improper no matter what it took to get it.  Every other impropriety is just a sprinkle on top of an awful, awful sundae.

Will any of this matter in the end?  It's doubtful that many voters will change their intentions because of LavScam on its own.  But the Liberals should know full well what may happen if they are perceived as routinely and intractably crooked.  Some parties never learn.

Photo Credit: Jeff Burney, Loonie Politics

Written by Jess Morgan

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


The general election is officially underway!

No, not that one.  I'm referring to Manitoba, where Premier Brian Pallister recently kicked off an election in the Keystone Province, escaping the notice of most Canadians.

But wait wasn't Manitoba scheduled to hold its next election on October 2020?  Isn't that province's premier constrained by fixed-election-date legislation, meant to prevent opportunistic early elections?

In theory, yes.  In reality, however, there is little to prevent Canada's first ministers from calling early elections despite fixed-election-date legislation.  The problem is that such legislation, implemented across most of the country, lacks teeth.  There are no penalties when such laws are violated or, as some might argue, the laws are written in such a circuitous way as to become a meaningless ornament.  In essence, such legislation has been reduced to aspirational scheduling, still subject to the expedient whims of politicians who seek to remain in power.

Although first ministers require the Crown's approval to trigger an election, vice-regal representatives don't typically thwart such requests.  Again, in theory, the Crown's representative could refuse a first minister's advice to dissolve parliament, but such a scenario would likely only transpire during a brief window: roughly six months following an election.  (And note that such a refusal would likely be based upon constitutional precedent, not the presence of fixed-election-date legislation.)  After that initial period, Crown representatives tend to obediently adhere to a first minister's advice, even if that advice is to draw up the writs for an early election despite the existence of fixed-election-date legislation.

While it is tempting to mourn the hollowness of laws ostensibly meant to prevent snap elections, the current collection of such legislation across Canada is admittedly a considerable improvement to what existed prior.  Most general elections in Canada are now held on dates scheduled years in advance, which removes the unfair advantage of governments quietly planning surprise elections that opposition parties (as well as the news media and general public) can be woefully underprepared for.

Yet despite the noticeable decrease in early elections, they occasionally still occur.  Perhaps the most infamous example in recent history was the snap federal election of 2008, initiated by then-prime minister Stephen Harper despite his government having implemented fixed-election-date legislation the previous year.  The subsequent election in 2011 was also held early after a non-confidence vote.

Unfortunately, Canada's election system can encourage first ministers to ignore scheduled election dates.  In particular, the instability of minority governments is exacerbated by the first-past-the-post voting system, which entices governments and opposition parties alike to trigger snap elections in the hope that a small increase in support can be distorted into a disproportionately large gain in seats.  The 2014 Ontario election is the best such illustration, in which a single-percentage-point gain in popularity for the provincial Liberals resulted in a 20 percent increase in their seats, ballooning the caucus into a majority government.

Knowing that Canada's antiquated voting system turns early elections into high-risk, high-reward games of roulette, it's little wonder governments are constantly tempted to take a spin of the wheel, despite legislation purportedly meant to prevent them from doing so.

Although it would probably be wise to continue to allow legislatures to be dissolved early in the event of insurmountable partisan gridlock, majority governments unilaterally triggering snap elections merely out of opportunism is perhaps the most unpalatable of unnecessary votes and most in need of prevention.  It's worth noting that there have only been two early elections ushered by majority governments where fixed-election-date legislation exists in Canada.  But ominously, both have occurred in the past four years: Alberta in 2015 and the current election in Manitoba.

Is this the dawn of a new trend?  Should we be concerned?  Perhaps.  In the Alberta example, the governing party that called a snap election was punished by the electorate and succumbed to heavy losses.  But if Manitoba's Brian Pallister next month becomes the first premier to dissolve a majority government in violation of fixed-election-date legislation and still earn re-election, other Canadian first ministers will undoubtedly take notice.

Pallister had hinted since December that an early vote might be coming, and unofficially announced the election almost eight weeks before the writs were drawn up.  Compared to typical behaviour of yesteryear, in which early elections weren't announced until they had already officially begun, Pallister's softer approach may ameliorate much of the sting.  But how the Manitoban electorate reacts to Pallister's gambit could prove pivotal for the future of fixed-election-date legislation across Canada.  If flouting the law is met with a collective shrug from the public, other premiers may wonder if their province's voters would respond equally indifferently.  But if Manitobans recoil and hand Pallister a palpable loss, he could go down in history as the final first minister boasting a majority government to attempt to contravene a predetermined election schedule.

Knowing that current legislation across Canada is flawed and doesn't effectively prevent early elections, what is the solution?  One fix would be to strengthen existing laws.  Although locking up first ministers could prove amusing, a more realistic amendment would be to emulate legislation already implemented in the United Kingdom: to require that a first minister must have the support of at least two-thirds of elected members before advising that a legislature be dissolved.

While imperfect, the new UK law requires a first minister to have unequivocal parliamentary support before attempting to trigger an early election.  This not only necessitates securing the agreement of at least one other political party (in most scenarios) before dissolving a legislature, but it also reinvigorates the concept of "responsible government" by strengthening parliamentary supremacy surely a welcomed transformation in Canada, where party leaders and their unelected strategists hoard undue influence.

Needing two-thirds approval to call an election would also radically improve the stability and duration of minority governments in Canada, which typically only survive a couple of years.

Such a change to fixed-election-date legislation still wouldn't conclusively end early elections not even from majority governments.  In fact, the UK's Conservative majority government called an early election in 2017 after garnering nearly-unanimous parliamentary support.  But if early elections must be held, surely a super-majority parliamentary threshold would be preferable to leaving the decision exclusively to a fireside chat between just two people first minister and Crown representative as is what currently transpires.  Such an amendment would also end the particularly problematic practice of minority-government first ministers unilaterally dissolving legislatures, rather than allowing other parties an opportunity to make a parliament work before dragging voters back to the ballot box.

The only potential downside of a British-style strengthening of Canada's fixed-election-date legislation would be if partisan gridlock overwhelmed a parliament and two-thirds support for dissolution could not be mustered.  But what might the long-term consequence of that be: pressure for elected members to work more cooperatively in the future?  That's a risk Canadian politics should be willing to take.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


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The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


So much for silly season.

No more fun in the sun for Prime Minister Justin Trudeau, as the serious days of the campaign have been thrust upon him by the conflict of interest and ethics commissioner.

Mario Dion has found Trudeau broke the Conflict of Interest Act when he and his government tried to get a deferred prosecution agreement for SNC-Lavalin, instead of the company having to face trial for bribery and other charges.

Much of the report confirms what we've already known, putting the facts, such as they are, on the public record officially.  But there are a few tidbits of new information.

What stands out the most is that while members of the Prime Minister's Office and other top bureaucrats were encouraging then-attorney general Jody Wilson-Raybould to get an opinion from a former Supreme Court justice, they had already approached the justice on their own to see if there would be any interest.

This they quite conveniently never mentioned to Wilson-Raybould.

I feel like by now, everyone's views on l'affaire SNC have become pretty hardened.  What you think about this probably correlates pretty closely to how you feel about the Liberal party.

But now we have a public record of what happened in a quite detailed report.  Detailed as it might be, I deliberately have not said it's complete.  Dion says in his report cabinet confidence was not waived to allow some witness to testify fully.

Trudeau has said he accepts the commissioner's report, even if he disagrees with some of the analysis and conclusions.  He doesn't, for example, think talking to the attorney general about this prosecution — or any prosecution, one assumes — despite the fact that's central to why Dion found Trudeau broke the ethics law.

And even if you accept, for whatever reason, that the government did nothing wrong in trying to get JWR to change her mind on the decision not to accept the prosecutor's finding, things get much weirder when you consider SNC sued to make the prosecutor change their mind.  Once that happened, there was a case before the Federal Court.  And yet, government officials were talking to SNC about the ways the company might get a prosecution agreement.

I'll let Dion take it from here:

"The principles of prosecutorial independence and sub judice make it clearly improper for one branch of the Government of Canada to be communicating with applicants to a judicial review challenging a decision made by another branch of the Government of Canada, without the knowledge or involvement of the Attorney General or their delegated representative." (Emphasis Dion's.)

Ah, but jobs were at stake.

In the end, the prime minister could not bring himself to say sorry Wednesday.  While mistakes may have been made, there was nothing to apologize for.

"My job as prime minister is to stand up for Canadians and defend their interests," Trudeau said.  "Yes, it is essential that we do that in a way that defends our institutions and upholds prosecutorial independence, but we need to talk about the impacts on Canadians right across the country of decisions being made."

He went on: "I can't apologize for standing up for Canadian jobs."

But he could apologize.

He was not standing up for the interests of Canadians, he was standing up for the interests of a corporation.  The interests of Canadians, the public interest, is being defended by the office of the public prosecutor.

The interest of the public is to stomp out corruption.  Someone truly looking out for the public interest would see that.  You can contort yourself as much as you want to say the jobs of several thousand engineering employees constitute the public, but they don't.  They are a small fraction.

The government does not see that these are not the public interest.  They've conflated the interests of SNC-Lavalin shareholders and Liberal politicians with the interests of the rest of us.

However much the prime minister says he accepts the ethics report, the underlying issues remain.  The interests of a particular company were put ahead of justice, ahead of the people of this country.

This is made most clear in the way the prime minister's office put its efforts not behind the efforts of justice, not to bring a company that had acted badly to heel, but to help them escape prosecution.

Once more, Dion:

"Thus, in the days following the September 4, 2018 decision [not to negotiate a DPA], SNC-Lavalin crafted a public-interest argument that it could present to the Director of Public Prosecutions in the hopes that she would revisit her decision.  Both the Department of Finance and the Privy Council Office actively assisted SNC-Lavalin in developing this argument."

Here are two of the governments most powerful ministries helping the company.  And SNC seemed pretty sure whose side the government was on.  When it came to light the prosecutor would not negotiate with the company to avoid prosecution, the company forwarded a report titled "SNC: Thanks for Nothing, DPPSC" to the PMO.

That's what this comes down to.  The interests of SNC are actually contrary to public interest, they're the ones being prosecuted.

This why the prime minister can't say sorry.  Saying sorry would mean admitting who this government is really for: for corporate monoliths looking to rip off the rest of us.

Photo Credit: Jeff Burney, Loonie Politics

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.