The real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct
Where is the scandal here, ask the worldly-wise? No money changed hands, no crimes were committed, not even a whiff of sex. When it comes down to it, isn’t this all just a disagreement between a couple of cabinet ministers?
No, the real scandal is the determined — and, it would appear, largely successful — campaign on the part of the prime minister and his officials to normalize their conduct: as if monkeying around with criminal prosecutions was all part of the usual give and take of cabinet government, or at worst a misunderstanding between people who “experienced situations differently.”
Why is prosecutorial independence such a big deal? Simply, because power, unchecked, tends to be abused. And yet it is mostly just that: a norm. Woe betide the cabinet minister who is caught phoning a judge about a case in front of him — he will be forced to resign, probably within the day. Why? Because convention decrees it.
In the present case, there are two. The office of the Director of Public Prosecutions was established by act of Parliament in 2006 in the wake of the sponsorships scandal, with a view to making explicit the broad independence prosecutors had hitherto been afforded under the common law.
So far as an attorney general involves herself in a decision about a particular prosecution — which is to say, almost never — she must be able to do so free of extraneous considerations, whether these be the consequences for her party, her relationship with colleagues, or her job. Or that if it was pressure it was not “inappropriate” pressure: because she had not provided them with the reasons why SNC-Lavalin was not given a DPA , or had not taken enough time over it , or had not protested at being pressured , or — most often — because they had a really good reason to pressure her, notably the 9,000 jobs that were allegedly at stake.
That’s true as a general principle. It is doubly true when, as the evidence suggests, the reasons were transparently political: the fears, expressed to Wilson-Raybould and her chief of staff on several occasions, that an adverse decision on SNC-Lavalin would harm the party’s political interests in Quebec. And it is triply true when the pressure takes the form, as in the Dec. 19 conversation with the clerk, of threatening her dismissal.
The same applies to attempts to impugn her record as attorney general, notably the leaked “revelation” that she recommended an appointment to the Supreme Court the prime minister disliked. That may or may not provide an alternate explanation of why she was removed as minister of justice and attorney general. But her demotion is only a small part of the overall story: the attempted interference in a prosecution is the issue, and would remain so, whatever her fate, and whatever the reasons for it.
It is no defence, even if true, that the prime minister and his officials did not realize they were pressuring the former attorney general. People in high office are supposed to understand basic principles of law, or to be advised by those who do. But in fact it is wholly implausible. From the first time she complained of being pressured — for example, at the Sept. 17 meeting with the prime minister — it is obvious they should have backed off.
But now, they could claim they were merely seeking a different form of punishment — albeit a decidedly lesser one. Moreover, by including among its stated purposes such extra-legal considerations as reducing the “negative consequences” of a prosecution for “employees, customers, pensioners and others,” the legislation can be portrayed as opening the door to discussion by others, outside the ranks of prosecutors.
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