The Prime Minister vs the Attorney General

The Prime Minister vs the Attorney General

In 2015 Canadians handed Justin Trudeau’s Liberal Party a comfortable majority. The electoral success was as much an acceptance of his positive messages for change as it was a repudiation of Stephen Harper’s secretive, fact and science suppressing, barbaric practice dog whistling and other cloistered governing practices over the previous decade.

The Liberal government took the helm promising change, transparency and a new relationship between the government and the governed. The newly elected government came in with high expectations and made promises to hold itself to higher account.

Fast forward to 2019 and we are nearing the end of Trudeau’s mandate and an election will be quickly upon us. The hope, optimism and promise of change seem wounded by recent events that have both surprised and angered Canadians. In particular, Jody Wilson-Raybould’s testimony alleging political interference with judicial process raised perplexing questions and Trudeau’s credibility has taken a serious hit.

In a nutshell, it appears that the government wanted Montreal based SNC-Lavalin to be offered a deferred prosecution agreement (DPA) rather than face prosecution on criminal charges of bribery. There is nothing unusual about a government wanting to protect a large corporation from failure. Many of Canada’s western allies will allow companies to admit wrongdoing, pay hefty fines and adopt new policies and procedures in exchange for suspending criminal proceedings.

As much as we may be offended by large corporations getting special deals, it is actually a win-win proposition. We avoid potentially bankrupting a large employer while making sure it forgoes illicit gains, pays fines and works within the law in the future. If our legal system is designed to rehabilitate and not vindictively punish, this type of arrangement makes practical sense.

The trouble is that the law providing for DPAs was bound to create this mess. When the law was created by this government, it should have been entirely foreseeable that economic interests would inevitably collide with the inflexibility of our justice system. Governments are entitled to make subjective economic and political decisions. But our justice system is intolerant to subjectivity and demands that the law apply equally to all.

How exactly did the framers of the law permitting DPAs imagine this inherent conflict would be resolved? How could any government exercise its inherent right to make decisions to prevent unacceptable economic and social outcomes while its own appropriately independent Attorney General pursued prosecution that would result in the exact outcome the government was legitimately trying to prevent?

As Canadians, we have a right to take offence with seemingly unpalatable government conduct. We are particularly indignant when we believe our justice system is being tipped to favour the wealthy and the powerful. Judicial independence is how we inoculate ourselves against an American styled politicization of our legal system.

The SNC-Lavalin case has exposed a clear conflict between expectations that our government will take considered and thoughtful steps to prevent economic chaos and our firmly held expectations that the rule of law prevails. Clearly, we have a problem as the law as it stands, handcuffs the government. It is damned if it does, or doesn’t.

This problem requires consideration, debate and a reasonable mechanism for resolve when government’s face this dilemma. Unfortunately, what we are getting is a highly partisan response as opposition parties smell blood in the pre-election waters. What that will do is make this government and any future governments gun shy about boldly tackling such issues to achieve the best possible and balanced solutions for Canada.

The Liberal government has badly mishandled this issue. It never engaged in the type of transparent debate that would have informed Canadians and maintained their confidence in the process. Instead, it clumsily let itself get embroiled in accusations of improper conduct. Any government, particularly one that promised transparency and systemic fairness, raises our ire even more so. To that extent our anger is warranted.

But we also ought to be mindful that fearful governments almost always choose political expediency over courageous candour. If we give up the opportunity to debate in favour of our instinct to punish, we will end up with exactly the government we deserve. It is time for Canadians to pass up the opportunity to cut off our noses to spite our faces. Instead, let’s demand that our government present a transparent process that will be invoked to deal with these conflicting values when they arise in the future. That’s a win-win proposition for all Canadians.

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