Prosecutors play a key role in the Canadian criminal justice system. They must exercise their considerable discretion fairly, in good faith, and without any consideration of the political implications of their decisions. The Public Prosecution Service of Canada (PPSC) is responsible for prosecuting federal offences and is headed by the Director of Public Prosecutions (DPP), who is tasked with executing their mandate.
The affair involving the Honourable Jody Wilson-Raybould, as the former attorney general of Canada, and SNC-Lavalin, a large engineering firm that was seeking a Deferred Prosecution Agreement (DPA) for its charges of bribery and corruption, has consumed federal politics for more than two months now. A DPA is a relatively new legal tool, which was buried as an amendment to the Criminal Code in last year’s Liberal omnibus budget bill. Through a DPA, the outstanding prosecution can be suspended to establish specific obligations that the company must fulfill to avoid facing potential criminal charges.
At the heart of the SNC-Lavalin scandal is the principle of prosecutorial independence. Prosecutors are expected to be guided by the law, not the political preferences of governments, and they must examine the evidence and determine, without political interference, whether a prosecution is justified.
The DPP did just that with the SNC-Lavalin case. The company is facing fraud and bribery charges stemming from its activities in Libya, and the DPP made her independent decision that it did not warrant a DPA. Wilson-Raybould, as the attorney general, concurred with this decision and decided to allow the DPP to proceed, respecting the independence of the prosecution service.
That should have been the end of the story. However, the awesome corporate lobbying power of SNC-Lavalin made itself felt as officials in the prime minister’s office, including the prime minister, the chief of staff, the principal secretary, and the clerk of the Privy Council, started a sustained campaign of inappropriate pressure on Wilson-Raybould, over several months, for her to intervene and order the DPP to pursue a DPA for the company. She took a principled stand against this pressure, and it ultimately resulted in her being shuffled out of her portfolio, her resignation from cabinet, and her expulsion from the Liberal caucus. Her colleague Dr. Jane Philpott also resigned from cabinet on the same principle, and she was also expelled from the caucus.
Since the story of this improper pressure first broke in February, the Liberal government’s narrative has changed multiple times in response to new information, which has led to calls for a fully independent inquiry into the matter to get to the truth. The testimony given by Wilson-Raybould, coupled with evidence that includes a taped conversation with the clerk of the Privy Council, paints a very clear picture of the lengths this Liberal government was prepared to go to for SNC-Lavalin.
Understanding the principle of prosecutorial independence requires us to think about what it means to be a society under the rule of law. Applying inappropriate political pressure on an attorney general to overturn an independent decision of the prosecution is an unconscionable act and sets a dangerous precedent, which we all need to guard against to uphold the integrity of our justice system.
Alistair MacGregor is the Member of Parliament for Cowichan-Malahat-Langford and the NDP’s former Justice Critic.
