Allegations that the prime minister intervened to forestall charges of corruption against SNC-Lavalin have created an uproar in Ottawa. Jody Wilson-Raybould, then attorney general, claims Justin Trudeau urged her to accept a plea deal that would have spared the engineering firm legal proceedings. Trudeau allegedly reminded her that Lavalin is a Quebec-based company, that he himself holds a seat in that province and that prosecuting Lavalin could cost 9,000 jobs, one of which, by implication, might be his own.
When Wilson-Raybould refused, on the basis of advice from her legal staff, she was demoted and subsequently resigned from cabinet.
How the crisis plays out remains to be seen. Just a few days ago, treasury board president Jane Philpott resigned, citing lack of confidence in the government over its handling of the Lavalin affair.
However, a larger issue has been raised. It has long been understood that decisions regarding criminal charges should be insulated from political interference.
Yet in Ottawa and most provinces, those decisions originate in the attorney general’s department, and that minister is a member of cabinet. Since it’s not unusual for prime ministers to pressure their ministers, at the very least the possibility of meddling exists.
One solution under discussion is to give the attorney general more independence on matters of criminal charges, and free him or her from other legal matters by creating a separate ministry of justice.
But that doesn’t deal fully with the issue. Ministers are liable to take account of political considerations whichever portfolio they occupy.
In B.C., while the referendum on electoral reform was under way, the minister who assumed responsibility for the file was the attorney general, David Eby.
But Eby not only managed the process, he played a leading role in advocating reform. That is to say, the province’s senior law officer took a political stance.
Let’s suppose the referendum had passed, and, as was promised, lawsuits were filed against the government. Eby’s ministry would have been responsible for mounting a defence. Isn’t that a conflict of interest?
It’s true that in B.C. most decisions to instigate criminal charges are made by an independent prosecution service. That office is housed in the attorney general’s ministry, but reports to the assistant deputy minister. The attorney general himself does not normally become involved in prosecution decisions.
But how much genuine insulation does that afford? Criminal trials number in the thousands each year. No minister could possibly interest himself in all of them.
Yet in cases of importance, he definitely retains that right, although his directions must be given in writing and published.
Britain has taken a different path. There, the attorney general is not a member of cabinet. The threat of undue political influence is removed.
So should we follow the British model, and banish the attorney general from cabinet to protect his or her independence? There are arguments on both sides.
Doing so would certainly eliminate the threat of political interference. Just as important, it would remove the appearance of improper influence.
On the other hand, numerous occasions arise where ministers need legal advice from the government’s senior law officer. If he or she is not in cabinet, how much weight will that advice carry?
Would a disinterested, external adviser, unaware of policy stances adopted by the cabinet, even gain a hearing?
On balance, there does not appear to be sufficient cause to remove the attorney general from cabinet.
A better solution, already in practice, is to appoint a special prosecutor from outside government to handle politically charged matters.
That is how the investigation of the legislature’s two senior managers, facing allegations of financial impropriety, is being dealt with.
Had the prime minister followed this path from the outset, the crisis now engulfing his administration could have been avoided.
