Yesterday was political theatre in the extreme, as the Ethics Commissioner, Mario Dion, released his report into the Double-Hyphen Affair. His conclusions were damning for Trudeau (but suspect – more on that a little later), and there was some genuinely troubling revelations in there, such as the fact that it seems that it was lobbyists from SNC-Lavalin who were the ones who suggested putting the Deferred Prosecution Agreement legislation in the budget, and seemed to be attempting to stage-manage the whole thing – right up to dreaming up elaborate schemes to try and bring former Supreme Court of Canada Chief Justice Beverley McLachlin into the fold, only for her to tell them that she’d wait to hear from Jody Wilson-Raybould. (Reminder: DPAs are not an invention of SNC-Lavalin, but have been a tool in other countries for over a decade, and Canada was a laggard in adopting them, and even then, we didn’t do a very good job of it, and yes, there is a lengthy paper trail of the consultations undertaken by the government on this. Also, they’re not a get out of jail free card – they do involve penalties, but would enable the innocent employees and shareholders of a company to not suffer for the actions of a few). As troubling as this is, my biggest takeaway is the absolute crisis of competence within this government – officials in different ministers’ offices who didn’t communicate with one another, which was compounded by Wilson-Raybould not offering any explanations for her decisions so that they could be communicated to either SNC-Lavalin or even the other departments. Recall that the infamous Wernick call that Wilson-Raybould was prefaced by Wernick that he was looking for an explanation, and ended when Wilson-Raybould said that she turned over a report to PMO weeks previously, to which Wernick responded “That’s news to me.” If Wilson-Raybould was being continuously bombarded from all sides, it’s because there was a lack of clear communications from all sides. Was that improper interference? Well, that’s a bit of a judgment call, though Dion argued that it was. You can take that for what you will.
Especially as it seems (assuming the EC report is accurate) that the assumption when the legislation was crafted was that SNC would qualify. As a law maker, I'd want to know why the law we thought said X was deemed to not say X by the AG. She owed that explanation. /2
— Robert Glasgow (@TheTradeLawGuy) August 14, 2019
Governments routinely adopt legislation that creates winner (and losers) in an economy. The test isn't whether the impact helps or hinders, but why the change was made. The goal of COI legislation should be to eliminate acting for inappropriate motives/intentions. 4/4
— Robert Glasgow (@TheTradeLawGuy) August 14, 2019
With the release of Dion’s report came the release of Anne McLellan’s own report into the structure of the Minister of Justice and Attorney General’s office, which ultimately concluded that the roles didn’t need to be separated, but that clearer guidelines needed to be established – including better communication from the Attorney General on decisions that were of interest to the government.
(Meanwhile, here are some primers on the Shawcross Doctrine, who Mario Dion is, and a timeline of events).
As for reactions, Andrew Scheer was predictable in saying that this was “unforgiveable,” decried that this was the first prime minister in history to have been found to have broken ethics laws (laws that only applied to two prime ministers, so that history is pretty short), and that he wants the RCMP to investigate…something. We’re not quite sure what. Unsurprisingly, Wilson-Raybould issued a statement shortly after the release of the report, saying that she has been completely vindicated. Trudeau himself said that he doesn’t agree with all of the conclusions – particularly that you can never debate an issue with the Attorney General – but said he accepted the report and took responsibility, and that they would learn from it – and lo, they have the McLellan Report to draw more of those lessons from as well.
What virtually nobody actually made any mention of, save a handful of lawyers, was the fact that the Commissioner’s findings resulted from a very large overreading of that section of the Conflict of Interest Act – so much so that it was hard to see how his understanding of “private interest” fit in with the definition of a conflict of interest. In fact, in the report, Dion stated that the initial complaint was under Section 7 of the Act, and while found that was not violated, he then decided on his own volition to see if Section 9 wasn’t a better fit, and then showcased how he jumped through a number of hoops to arrive at that conclusion. He also complained that he wasn’t given access to documents that fell under Cabinet Confidence, and argued that his mandate made that access “implicit” rather than explicit, which should be a warning sign of an Officer of Parliament that is trying to claim more powers than Parliament originally allocated to him. That should be concerning – as is the fact that everyone credulously cherry-picked the damning paragraphs from the report rather than looking at it in context, and the fact that the basis for those conclusions are actually problematic. This doesn’t mean that wrongdoing didn’t occur – just that the report itself was arrived at by a great deal of overreach, which should colour the conclusions, but nobody in the media did any of that critical thinking.
In hot takes, Chantal Hébert was first out of the gate, to wonder if this would be a fatal wound for Trudeau given how scathing the report was. Robert Hiltz castigates Trudeau’s inability to apologise because that would mean that the government was acting in SNC-Lavalin’s interests and conflating it with that of the country. John Geddes wonders why SNC-Lavalin never took Wilson-Raybould up on her offer to pass along their public interest arguments to the Director of Public Prosecutions (and the answer is fairly unsurprising). Andrew Coyne says the problem is not any conflict of interest, but the possibility of an abuse of power. Paul Wells notes the report is another reminder to Trudeau that his is a job where he makes decisions that have consequences, which he may not seem to grasp.
Good reads:
- Chrystia Freeland says the government is preparing contingency plans for Canadian citizens in Hong Kong if things go pear-shaped there.
- Police chiefs across the country say they won’t support a handgun ban because it won’t stop gun smuggling into the country.
- CSIS is apparently having some difficulty recruiting and retaining employees.
- There is some federal tiptoeing around the situation in Oka with proposed land transfer and tensions that have flared over it.
- The provincial campaign in Manitoba being right before the federal campaign will exhaust volunteers – which one suspects may have been the point.
- Not surprisingly, a group behind billboards calling for Liberal MPs in Alberta and Saskatchewan be voted out has ties to the Saskatchewan Party.
- Kevin Carmichael provides a timely reminder of what equalization is and is not, as the rhetoric around it heats up again.
- Matt Gurney argues that the problem with Toronto shootings isn’t gun control – this isn’t America – but has other systemic causes that need to be addressed.
Want more Routine Proceedings? Become a patron and get exclusive new content.
Scheer, pledging an open and ethical government, we’ve heard all that before, castigated Trudeau for his malfeasance but failed to mention that his party is no stranger to ethic issues. Remember envelopes stuffed with cash, Mulroney, Harper found in contempt of parliament not once but twice and Harpers involvement in paying an unethical senator 92 thousand dollars for his silence and the list goes on. It’s politics and hypocrisy as usual from the sanctimonious chipmunk.
While not a `nothingburger`, what turns it into an 8`tall triple cheese-bacon burger of the 3500 calorie variety one sees on food channels, is the fact that the PM and PMO botched communication of what DPAs are. So much so, that it became very easy for Opposition leaders to pitch the choice as having been between criminal prosecution and letting SNC off the hook completely, rather than as an alternative approach to punitive action. In the minds of those who think shallowly about politics and politicians, that automatically made Trudeau look like he was trying to do favours for buddies.
I have also heard nary a peep about the possibility that criminal prosecution might have failed. Every year, Justice Dept. lawyers lose cases. And while I do not doubt their competence (having had several cousins who served in that capacity, one of whom eventually became a judge), I also know that SNC-Lavalin have deep pockets and could easily assemble a legal team that could trounce whomever was assigned to the case on behalf of the Government. In short, just because the Crown levies charges does not automatically make it a slam dunk, any more than buying a 6/49 ticket makes you a millionaire.
In truth, both the desire to pursue a DPA, and the desire to prosecute criminally were reasoned gambles, with each side considering the gamble through their respective lens: the legal system and employment statistics Neither were assured of either a financial or moral victory, although they each presented possibilities (not certainties) to achieve both. It was inappropriate for the PM and PMO to hound the Justice Minister, but is that more a matter for HR than for the Ethics Commissioner and Scheer`s proposed criminal investigation?
Again, had the PMO done a better job of communicating of how DPAs work, Opposition leaders and pundits would have had much shorter poles to wave their respective flags from.
Well argued, especially considering how poorly the prosecutors fared in the Mark Norman case.
I would submit, however, that the “hounding” to which you refer was of the Attorney General, not the Justice Minister… which makes a huge difference.
Fair point.
Agree that this government’s communications strategy is bush-league to nonexistent. Not just in terms of PR capabilities but even internal dialogue. So bad that none of the hands seem to know what the other is doing and Trudeau is kept in the dark. I fully trust that he believes in transparency, but what can you do when your team isn’t even talking to each other? What a dysfunctional family! Boy, when Wernick said that people were talking past each other, it was the understatement of the century. I feel really bad for Trudeau. He ends up wearing all the blame and the crown of thorns in this crucifixion, but it’s really his people who’ve failed him on so many levels, and it’s not fair. Especially JWR herself.
Then again, it doesn’t help Canadians either that the self-important pundit class at the Postmafia papers and the debased national broadcaster don’t do their due diligence in informing the public either, because they’re so inflated on their own “hot takes” and obsession with Crooked Hillary Trudeau that they don’t take the time to educate people on any of the facts in this matter. Why couldn’t it have been something simple, like a blue dress or Russia? This whole thing is a massive clusterf***k of a Rashomon scenario. What we have here is a failure to communicate. Like Gloria Estefan said, the words got in the way.
I don’t know that I would use as much hyperbole, but clearly in this instance they fell down. That said, in my 20 years in the Public Service, I found many an occasion when folks at the top simply didn’t clue in to what folks closer to the bottom didn’t know or weren’t aware of, and consequently made no efforts to communicate it. Some things/considerations may have been obvious to those at the top, but completely opaque to those outside their inner circle. So it wasn’t that they were “hiding” things (though clearly sometimes you need to), but rather it didn’t dawn on them that it needed saying.
Does anybody else here see parallels between James Comey and Mario Dion???
Yes. Both set out to find if malfeasance has been committed by a major political figure. Comey found there was not (Clinton), and Dion found there was (Trudeau).