[Please note, this is a very long read.]
I am beginning to think that maybe Justin Trudeau’s best hope for burying his LavScam scandal might be to hire Donald Trump’s attorney general, William Barr, or perhaps his former nemesis and now BFF, Special Counsel Robert Mueller.
Barr’s summary of the Mueller report findings reads like The Donald’s wet dream.
No (new) indictments. No evidence of collusion to conspire or coordinate with the Russians for electoral advantage. And not enough evidence to warrant charges of obstruction of justice.
Obstruction of justice? Pfft. “Totally exonerated,” says Trump.
“While this report does not conclude that the President committed a crime, it also does not exonerate him.”
Many Liberals would probably be quite happy with a similar ambivalent outcome from the ethics commissioner or—god forbid, from the RCMP—as their beloved leader heads into the fall campaign.
Enough of being haunted by “groundless” suspicions of collusion aimed at the obstruction of justice in the criminal prosecution of SNC-Lavalin, they might now be thinking.
When the chips are down, who you gonna call? Ghost busters.
Mueller might be available, if a special prosecutor was ever required to step in for director of public prosecutions (DPP), Kathleen Roussel.
That might be a challenge if the RCMP ultimately declines to investigate the scandal. So far, the five former federal and provincial attorneys general and Conservative leader Andrew Scheer who have all called for a police probe are still in the dark, like all Canadians.
More to the point, Canada doesn’t have a clear legislated and/or policy process for appointing special prosecutors in such politically charged cases—unlike British Columbia and some other provinces, or for that matter, the Canadian military.
It is astounding, when you think about it, that the Department of Justice Act or the Criminal Code doesn’t already explicitly empower the DPP to unilaterally appoint a special prosecutor in any situation where the AG’s legal oversight is itself untenable.
Leaving the AG even notionally in charge of a prosecution involving the prime minister who appointed her or him to their job and to cabinet should be legally unthinkable and impermissible.
Ditto for a prosecution of anyone accountable to the PM, or of a person or corporation with obvious political connections to a political party. Especially those who have been large donors to party coffers, or one that illegally contributed over $100,000 to the governing party.
Conceptually, it's an inherent conflict of interest.
As such, I can’t imagine that Canada’s current AG, David Lametti, would ever see fit to even titularly oversee the charge assessment process or prosecution of any political figures in this case, if it should ever come to that.
And that is a big “if”, no doubt. But it is one we should all be thinking about now, if the stuff that has already hit the fan turns out to be as stinky and sticky as the odour emanating from the justice committee and from what’s leaking about all that’s gone on behind closed doors.
David Lametti's predicament
Someone should ask Lametti what steps he might take to prevent the appearance or reality of a conflict of interest in any such hypothetical scenario.
What process would apply for appointing a special prosecutor that would completely extricate him from his statutory oversight in such instances?
What process would further apply in appointing a special prosecutor to also remove Ms. Roussel from having further false aspersions cast on her conduct, decisions and/or judgement—especially by those acting on behalf of the prime minister?
Which is really at the root of this scandal. To say nothing of the implied lack of confidence by the prime minister and his crew in the former AG’s judgement, competence, and statutory decision-making.
It was that that gave rise to the pressure they allegedly exerted on her to commission an outside “expert” to “help” her overrule the DPP and to “help” her provide “cover” for taking and defending their desired actions, which ran counter to her own unwelcome professional assessment.
Maybe Anne McLellan should add that requirement for appointing a special prosecutor in such cases to her “to do” list.
She, who has been tasked as the prime minister’s handpicked special advisor, to submit “independent” recommendations for reforming the AG’s role.
She, who can no longer attend Liberal fundraisers to help her party fight the opposition parties that hope to convert this controversy into votes and seats for themselves.
Apart from being the right thing to do, it could be worth its weight in gold and goodwill for her party, as it struggles to regain public confidence in a leader who seems genetically incapable of understanding the concept of prosecutorial independence.
After all, it would be tough to imagine that Lametti would ever preside over the criminal prosecution of anyone in the Trudeau government on the LavScam file.
I mean, given that his predecessor (JWR) feels she was fired from that same office that Lametti now holds, allegedly, for not bowing to her boss’s desire to politically intervening in a criminal prosecution. In respect of the same subject that he maintains may yet qualify for a DPA, because no decision is ever final until a verdict is rendered.
Not that there’s any reason to believe that will ever come pass, as things stand.
Which is also not to confuse the potential for criminal charges with the likelihood (or unpublicized reality) of an RCMP investigation.
Obstruction of justice and breach of trust are notoriously hard to prove, as Trump has now happily discovered in the first instance. And as I expect Vice-Admiral Mark Norman will yet again confirm in the second instance.
It is ironic that even Trump allowed for the special prosecutor’s investigation to go forward that Trudeau is using the full weight of his office to prevent from ever materializing in getting to the bottom of his scandal.
To date, most of the focus in the LavScam controversy has centered on two provisions of the Criminal Code.
Section 139(2) makes it an offence to willfully attempt to “obstruct, pervert or defeat the course of justice in a judicial proceeding”.
Section 423.1(1) makes it an offence “to engage in any conduct with the intent to provoke fear” in a “justice system participant in order to impede him or her in the performance of his or her duties”.
Of course, both are relevant concerns that Canadians deserve to be assured are either pertinent or inapplicable in this affair.
The mainstream media and opposition parties might also want to focus more attention on s. 122 of the Criminal Code, which deals with “breach of trust by a public officer.”
In R. v. Boulanger the Supreme Court of Canada set out a five-point test for establishing that crime. The Crown must prove beyond a reasonable doubt the following:
- The accused is a public official;
- The accused was acting in connection with the duties of his or her office;
- The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
- The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
- The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.
The first four of those points would all seem to apply to at least some of the individuals and conduct that JWR identified and illuminated in her testimony to the Commons justice committee.
But it is the last point that is really key in this instance. For it speaks to whether anyone used their public office for “a purpose other than the public good, for example, for a dishonest, partial, or corrupt purpose”.
Now, I am just a layman, but my reading of that test suggests it might extend to anyone who deliberately misled an attorney general and/or cabinet about a supposed “public good” rationale for politically intervening in a criminal prosecution.
Say, for the “dishonest, partial, or corrupt purpose” of winning votes in Quebec and elsewhere.
Say, for an ulterior purpose of saving seats for the governing the party, including the one held by the prime minister, or maybe benefitting a company that has been a major donor to the Liberal party.
I’m not suggesting that’s the case here; but it begs to be examined and explicitly ruled out if all is as legally defensible as the prime minister would have us believe.
The truth, as it were, should set him and his government free from all suspicion and doubt, if he has nothing ontoward to hide.
My point is, it is not just the prospect of some illicit personal benefit or monetary gain that constitutes a breach of trust, which no one is now suggesting might be applicable in this instance.
But also, whether information was illegally shared and used in tandem with other inappropriate conduct for “dishonest, partial, or corrupt purposes” of partisan advantage, masked as having been pursued in the “public interest”.
Lest there be any doubt, I am not accusing anyone of any criminal wrongdoing in this LavScam controversy.
Not being a lawyer, or privy to any inside knowledge of the facts beyond those reported by the media, I am left with only my political antennae in trying to guess at where this affair is now legally heading.
Yet my political "spidey sense" tells me that the threads of truth that are gradually coming to light are all spinning out a web of intrigue that raise grave questions about the legality of the conduct at issue.
Questions that cry out for closer inspection by the RCMP.
Why is Trudeau obfuscating?
Despite JWR’s statement to the justice committee that the pressure she experienced was inappropriate, but probably not illegal, it is what she doesn’t know and what she was not aware of that begs to be scrutinized by someone beyond the ethics commissioner.
For as Jane Philpott rightly said, “My sense is that [the commissioner’s office] will not have the appropriate tools to be able to get at all of this.”
That is obvious, which is why Trudeau has tried so hard to suggest the opposite.
It is why he is so content to hide behind the ethics commissioner’s review, hoping that Mario Dion’s severely constrained legal mandate will preclude him from really addressing the most serious questions. Whenever he returns from his “prolonged” medical leave.
It is why Trudeau is so deathly afraid of extending the privilege waiver to release JWR from her sworn oath of cabinet confidence beyond January 14.
It is why he has refused to fully release her from solicitor-client privilege restrictions that he well knows still prevent her from speaking freely about what happened outside of the justice committee that has now terminated its investigation.
He knows that she risks being disbarred for violating that tenet, which she is now being urged to do by those who suggest she should cast caution to the wind and “let 'er rip” in Parliament.
It is why he won’t release Jane Philpott to say anything that would reveal what she knows that might now be protected by cabinet confidence.
And as we all know, she maintains “There’s much more to the story that should be told.”
As she said, “I believe the former attorney general has further points to make. I believe that I have further issues of concern that I’m not free to share.”
It is why seasoned Liberal lackeys like MP Judy Sgro are now attacking JWR and Philpott, challenging them to “put up or shut up”, when their own leader is doing his level best from allowing that to happen.
What Sgro, her cowardly caucus colleagues, and the Liberal social media trolls all really mean by that appalling slapdown of two brave women who had the courage of their convictions to speak truth to power is to just “shut up".
Because they know that neither of the courageous women they accuse of not being team players are not keen on simply ignoring their sworn oaths and saying their piece under the questionable protection of parliamentary privilege.
That is, to the extent that they might even be afforded a few minutes to make a statement in the House, which really needs to be fully aired and questioned through many more hours of committee testimony.
To make their case in Parliament, they would have to obtain the Liberals’ consent to be heard, which is ridiculous, given how they are the only reason why JWR and Philpott have been largely silenced.
If they really mean what they say, those Liberals should add their voices to those calling on the prime minister to remove any need for parliamentary privlege to trump cabinet privilege or solicitor-client privilege.
They should be calling on him to simply release JWR and Philpott to share their full story, instead of supporting his efforts to clam them up and prevent the truth from outing.
It is now patently clear that the prime minister is panic-stricken by the prospect of allowing his two former senior ministers to say anything about what really transpired from the date of the cabinet shuffle through their respective resignations from cabinet.
He surely must know that something very damaging to him and his government hangs in the balance of their forced silence.
The muzzle that he has put on JWR and Philpott is intended only to prevent him from experiencing the harsh truth—that their bark is itself their bite.
He is terrified of inviting any new testimony from the officials that JWR has identified as key players in this controversy, or from others who may have done things that might provoke an RCMP investigation.
He is petrified at the prospect of anyone being called to testify under oath, at penalty of perjury for lying, to prove his laughable contention that he did nothing wrong.
And yet, the hits just keep on coming.
With every new front-page scoop in the Globe and Mail. With JWR’s next round of written evidence soon to be submitted to the justice committee.
And despite his Liberal lapdogs’ incorrigible attempts to silence JWR and betray that forum’s mandate by shutting down its investigation.
RCMP hasn't revealed anything yet
All of which isn’t just dumb politics on the PM’s part that is backfiring, big time, on him and his party. It further reinforces the need for an RCMP inquiry.
Indeed, I’d wager that an RCMP investigation may already be underway, if only because of its deafening silencing in either confirming or denying whether one has been initiated.
Sure, that’s the standard line they usually give when they don’t want to compromise an active or prospective investigation.
It is one thing to refuse to “confirm” that an investigation is taking place, if it is, and you don’t want to alert its subjects of that fact. Which seems unlikely in this instance, given what it would entail and who the RCMP would be obliged to talk to.
It is quite another thing to refuse to “deny” that an investigation has been launched if it has not been, regardless of what might happen in the future. Especially when it is the government itself and the prime minister’s political neck that is on the line.
When such denials are not forthcoming, inquiring minds race, and rightly so.
Because where there’s smoke, there is usually fire, whether or not it rises to a level hot enough for anyone to get burned with actual criminal charges being laid.
I submit, there is already more than enough on the table to warrant a formal investigation by the RCMP. Especially in the absence of any parliamentary process to help clear the air that is now choking us all in clouds of suspicion, doubt, and poisonous particles of toxic truth.
Here is just some of what we know.
We know that one or more individuals in the prime minister’s office were aware of highly sensitive and privileged information about the status of the SNC-Lavalin prosecution that they should not have been in any position to have.
Information that ostensibly did not come from Public Prosecutions Services and that conflicting accounts suggest may or may not have come from SNC-Lavalin. Information that might have been illegally shared.
I would think that that question and how (or if) SNC-Lavalin might have also been privy to such privileged information is a mystery that cries out for a closer look by the RCMP. Now more than ever, in view of the Globe and Mail's latest story.
We also know that numerous direct overtures were made by SNC-Lavalin officials and/or designates to the former head of the Privy Council and others, through activities that were not listed by the company in its monthly lobbyist activity reports.
What was said, implied, requested, or not in those unregistered communications is unknown.
Nor is it clear if any of those conversations, meetings, and/or written contacts may be construed as constituting lobbying activities as defined under the act.
SNC-Lavalin assures us that all of its communications were in total compliance with the law. I have previously speculated why I believe that is probably the case.
However, we also know that the company’s president and CEO, Neil Bruce, has publicly stated that at no time did he or his agents threaten to move SNC-Lavalin’s head office. Nor did he ever suggest that 9,000 were at risk, or did he or his company ever argue for a deferred prosecution agreement based on national economic interest arguments that would be against the law.
In fact, he said he never asked for a DPA on any of those bases, noting that “Yes, the 9,000 people will get a job. I have no doubt whatsoever about that … But they’ll be working probably for a U.S. company.”
All of which stands in direct contrast to the rationale cited by the prime minister and his senior staffers in pressuring JWR to overrule the director of public prosecutions to help SNC-Lavalin avoid a criminal trial for fraud and corruption.
Note as well that the company’s recent statement to clarify Bruce’s earlier statements really do little to change that fact. It said this:
“Mr. Bruce indeed stated the Government of Canada was never threatened by SNC-Lavalin, however, the company had made it very clear to the Government through its advocacy campaign that the implementation of a remediation agreement (RA)—also known as a deferred prosecution agreement (DPA)—was the best way to protect and grow the almost 9,000 direct Canadian SNC-Lavalin jobs, as well as thousands of indirect jobs through its more than 5,000 suppliers across Canada. The company still asserts this position.” [Emphasis added.]
None of which changes Bruce’s fundamental assertion: that SNC never threatened to move its HQ from Montreal, that it never threatened that jobs would be lost, and that it never suggested that such economic interest imperatives should make it eligible for a DPA.
[March 28 update: It is an assertion that would now seem to be directly contradicted by today’s Canadian Press story about a PowerPoint presentation made by SNC-Lavalin to federal prosecutors last fall.
The company apparently said that it was considering its options if it did not get a DPA. One of those options was “Plan B”.
As CTV reported, “Under that plan, SNC would move its Montreal headquarters and corporate offices in Ontario and Quebec to the U.S. within a year, cutting its workforce to just 3,500 from 8,717, before eventually winding up its Canadian operations.”
In short, it is tough to know who or what to believe about what was really said, in the absence of some sort of formal investigation, since the “jobs threat” story seems to be “fluid” and changing by the day.]
Political considerations and legal concerns
We also know that those false threats of economic sanctions were advanced, either deliberately or unwittingly, by people within the Trudeau administration.
To convince JWR to politically intervene in a way that she and her chief of staff repeatedly expressed would be clearly inappropriate and that had never been done before in a criminal prosecution.
To pressure her to make “her own decision”, using what she perceived to be “veiled threats”—including that she might be fired as AG if she refused to act against her expressed will and contrary to her repeatedly asserted position.
All in an effort to reframe the “national economic interest” considerations, which are expressly outlawed in the Criminal Code in determining whether to grant a DPA, as instead of “public interest” arguments that might be used to effectively nullify that prohibition.
We know that several senior officials in the PMO, the PCO and the finance minister’s office repeatedly tried to convince JWR and her chief of staff to get an outside legal opinion that would give the attorney general reason to politically intervene in a way in which she was unwilling to do.
We know that multiple officials from the prime minister, on down, repeatedly cited ulterior electoral considerations that pointed to political motives.
And that those considerations were communicated to JWR and to her chief of staff in pressuring her to “get it right” by politically intervening on behalf of SNC-Lavalin to overrule the DPP’s decision and spare it from a criminal trial and prospect of being barred from bidding on government contracts for up to 10 years. A benefit that could potentially be worth billions of dollars in new business for the company.
Those suggested political considerations had nothing to do with the public interest and everything to do with partisan interests that were of concern to the prime minister if the company didn’t get the special deal it was after.
Political interests that were heightened by conversations with the premier of Quebec and which JWR says she directly warned the prime minister were plainly inappropriate to raise with her or her staff. Legal advice he ignored.
His “people” persisted in advancing false economic arguments, which we know Quebec’s justice minister also says she also refused to entertain and advance on SNC-Lavalin’s behalf in pressuring her federal counterpart for a DPA.
And finally, we also know that the Federal Court has rejected SNC-Lavalin’s application for judicial review of the DPP’s decision not to negotiate a DPA.
Justice Catherine Kane stressed that the DPP had duly considered the “extensive information” and “had conducted a detailed review of the documents submitted” by SNC-Lavalin “regarding how they met the relevant criteria” in making her decision.
Yet, despite that fact, which JWR had reviewed and properly supported, the Liberals repeatedly tried to undermine her decision.
They ostensibly did so on the basis of their ill-informed judment that she had not given due regard to the economic threats that have now been exposed as groundless, and equally, to the partisan political imperatives that she rightly refused to entertain.
JWR feels she was harangued, threatened, and ultimately fired from her post for being seen as either too politically obstructionist for the prime minister’s liking, or too resistant to accommodate his desire to do things that no one in her former position should be asked to do.
The worst of it is, that is not even the half of what we already know.
And it is only a fraction of the hard truth that screams to be fully heard and thoroughly investigated by the RCMP.
So many other factors reinforce that need.
They include how the prime minister’s people are now all lawyered up.
They include how the prime minister’s former principal secretary was so rapidly given access to records that he relied upon for his testimony to the justice committee. Which stands in stark contrast to the interminable process that Vice-Admiral Mark Norman has gone through in trying to get access to his own records in defending himself in court. Why the difference?
They include the extraordinary efforts that the prime minister has taken to prevent JWR and Philpott from sharing their evidence.
That includes the unconscionable actions just taken by the Liberal members of the Commons ethics committee, who used their majority to block the opposition’s efforts efforts to have that forum complete the work that their Liberal colleagues on the justice committee brazenly voted to short-circuit.
They include the disturbing attacks on JWR’s character that Liberals have advanced in trying to justify the PM’s decision to dump her as AG.
One of those spurious assaults relates to JWR’s supposed attempts to isolate the PMO from information about potential Supreme Court nominees. Specifically, her alleged recommendation to appoint Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench as the SCC’s chief justice.
As a conservative appointee of Stephen Harper who had challenged certain aspects of judicial interpretations of the Canadian Charter of Rights and Freedoms, those Liberals who tried to raise his appointment in trying to undermine JWR only added new fuel to their party’s own fire.
In trying to besmirch her character and her commitment to the charter, they apparently also leaked confidential cabinet information and tried to sully a sitting judge in the process.
It obliged Justice Joyal to issue an extraordinary statement.
“I fear that someone is using my previous candidacy to the Supreme Court of Canada to further an agenda unrelated to the appointment process. This is wrong,” he said.
No kidding, that’s wrong, like the other examples I have summarized above. All of it stinks to high Heaven.
With JWR’s evidence expected later this week, that smoke that the prime minister’s team has tried so hard and so unsuccessfully to douse will only grow bigger and blacker.
The longer Liberals ignore it and try to pretend that all is well, when they should know their collective goose is already being savagely cooked, just makes them look foolish.
Odds are, no one will ever be charged with a crime in this scandal, given how hard the government is trying to suppress the truth and how hard it is to prove criminal intent.
Nevertheless, the prime minister’s personal handling of this fiasco is a politically criminal abdication of leadership and an abuse of Canada’s highest elected office.
And whether this scandal ever results in criminal charges, which now seem unlikely, I predict the RCMP will inevitably feel compelled to investigate this firestorm. If it isn’t doing so already.
Because no privilege—not parliamentary privilege, not cabinet privilege, and not solicitor-client privilege—should ever protect a party that is trying to hide behind those shields to frustrate the evidence that goes to the heart of the rule of law.
Valid questions and concerns demand to be explored and answered.
Ones that are not simply political in nature, but that are also of legal and potentially criminal consequence.
The best way to truly clear the air in this case is to insist on an RCMP investigation that has the full force of the law behind it.
Preferably, under the auspices of a special prosecutor.
Because if even if Trudeau somehow reverses course and decides to let JWR and Philpott speak, that will not and should not be the end of it.
All of the actors and evidence in this controversy need to be exposed and duly questioned.
As I believe they will be, by those whose only interest is to serve and protect us and our democratic institutions—the RCMP.
Mark my words, dear Liberals, the cops are coming and no privilege will protect you from that hard reality, if and when it ever materializes.