SNC-Lavalin allegation raises thorny questions, like what role does the attorney general have in criminal cases?

OTTAWA — Parliament was seized this week by an allegation that the Prime Minister’s Office tried to pressure its justice minister into interfering in how federal prosecutors treat the corruption case of SNC-Lavalin, a massive Montreal-based engineering and construction firm.

The Globe and Mail, citing confidential sources, alleged the Prime Minister’s Office put pressure on Jody Wilson-Raybould, who was then justice minister and attorney general, to have prosecutors negotiate a “remediated agreement” with SNC-Lavalin. It would have seen criminal charges stayed in favour of a compliance agreement.

Trudeau has called the allegation false, saying nobody in his office gave direction on the case to Wilson-Raybould. Trudeau has not specifically said no pressure was applied, though other Liberals have.

Wilson-Raybould has repeatedly declined comment. “I am bound by solicitor-client privilege in this matter,” she said in a statement Friday morning.

The allegation raises multiple thorny questions: How independent is the federal prosecution service from political influence? How does Canada’s attorney general balance the roles of being a cabinet member but also overseeing prosecutors? And is Wilson-Raybould, who as attorney general was legal advisor to the government, truly bound by secrecy in responding to the allegation? The answers are complicated.

The Public Prosecution Service of Canada is designed to make decisions independently, but it is still accountable to the attorney general and can be directed by the attorney general as long that direction is made public.

The relationship between federal prosecutors and the attorney general was reshaped in 2006 with the The Director of Public Prosecutions Act, contained in an accountability bill passed by the Conservative government of the day under Prime Minister Stephen Harper. It created a new, separate office for the prosecution service.

“The idea is not to create a new bureaucracy, but rather to take the Director of Public Prosecutions out of the Department of Justice … and try to strengthen its independence from the government of the day,” said John Baird, then Treasury Board president, in committee testimony in 2006.

The legislation was “designed to strengthen the twin goals of institutional independence and ultimate ministerial accountability,” says the Public Prosecution Service of Canada Deskbook, which sets out guiding principles for prosecutors.

“On one hand, it was intended to enhance integrity in government by statutorily ensuring independence of the prosecution decision-making function from inappropriate political control, direction and influence,” the book says. “At the same time, the DPP Act does not speak of absolute (prosecution) independence. Because the Attorney General is fully accountable to Parliament for the prosecution function, the Act ensures a measure of oversight for the exercise of prosecutorial discretion.”

Then-Justice Minister and Attorney General Jody Wilson-Raybould in April 2017. Adrian Wyld/The Canadian Press/File

The book, citing a Supreme Court of Canada ruling, says it is a constitutional principle that the attorney general act “independently of partisan concerns” when overseeing prosecutors. “However, it is quite appropriate for the Attorney General to consult with Cabinet colleagues before exercising his or her powers under the DPP Act in respect of any criminal proceedings,” it says.

This distinction is known as the Shawcross principle, named after a former British attorney general: cabinet members can give advice to the attorney general, but not instructions or even pressure. In return, the attorney general bears responsibility for decisions taken, and can’t shift it to cabinet.

The attorney general is thus allowed to direct prosecutors — but crucially, the direction must appear in a government publication called the Canada Gazette, which is viewable by the public. In 2006, as MPs were studying the legislation, Department of Justice counsel Joe Wild testified on this point.

“The director of public prosecutions has independence in the sense that the attorney general cannot give a direction, whether it is a broad policy direction or a specific direction on any given case, without that direction being in writing and Gazetted,” Wild said. “The DPP makes decisions, and if the attorney general wishes, I guess, to adjust that decision in some manner, the attorney general has to do so in writing and publicly so that it is transparent.”

If the Prime Minister’s Office was trying to pressure Wilson-Raybould on a decision on a criminal case, rather than just discuss general issues, that would violate a constitutional principle. If either the PMO or Wilson-Raybould had tried to direct the prosecutor’s office without making that instruction public, that would violate the law.

As to whether Wilson-Raybould is truly bound to secrecy on this by solicitor-client privilege, as she insists she is, it is hard to say for certain without knowing exactly what she discussed with the Prime Minister’s Office. The privilege covers legal advice, so that would require secrecy.  There is also a broader duty of confidentiality that lawyers have in discussing their cases, though the rules are less black and white.

The client, however, can always waive solicitor-client privilege and the duty of confidentiality, which would free up Wilson-Raybould to fully respond. In this case, the client is the Prime Minister’s Office.

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