Please note that a revised and expanded version of this blog is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3367097

The SNC Lavalin controversy over whether improper pressure was placed on former Attorney General Jody Wilson-Raybould continues to rage. Both the ambiguities of the facts and the complexity of the policy issues seem to warrant an independent public inquiry.

Such an inquiry could explore controversies over prosecutorial independence under Justin Trudeau’s government just as the McDonald Commission explored controversies over police independence under Pierre Trudeau’s government. In both cases, the issues had became emmeshed in partisan politics. Clear and independent thinking and reform plans were necessary for moving forward.

The Shawcross Principle

The Shawcross Principle articulated in 1951 is a constitutional convention that while the Attorney General (AG) is entitled to consult Cabinet colleagues about the policy implications of prosecutorial decisions, he or she is not to be directed or pressured on such decisions by the Cabinet and that the decision should be made by the AG alone.

Constitutional conventions evolve out of political practice. An influential practice in the development of the Shawcross convention was the defeat of a Labour government in 1924 after backbenchers pressured the AG into dropping incitement to mutiny charges against a Communist. The government was defeated in Parliament and a new government was elected. The agitator in question, JR Campbell, was subsequently charged with incitement and sentenced to 6 month imprisonment.

Since the Patriation Reference [1981] 1 SCR 753, Canadian courts have been more willing to declare the existence of constitution conventions and to elevate them to constitutional principles. That said, the courts do not generally enforce constitutional conventions. Thus what we are seeing with l’affaire Lavalin is an ongoing process of defining the precise content of the evolving convention and its enforcement. At this point and perhaps until after the election, the application of the convention to this controversy remains an open question.

The Shawcross principle and some recent British practice suggests that it is for the Attorney General to seek policy information from the Cabinet. In the Lavalin case, the policy concerns about Lavalin’s economic health were proactively and repeatedly conveyed to the AG from the Prime Minister, his chief civil servant, his chief of staff and various others in the Prime Minister’s Office and the Minister of Finance. This may be an important difference.

The Shawcross principle was articulated in more sedate times before the advent of governing from the centre and in a context where the Attorney General does not sit in Cabinet. This does not mean that the Shawcross principle is no longer valid but only that it, like all constitutional conventions, must continue to evolve.

The obvious alternatives to the Shawcross principle are not palatable. One is simply to place prosecutors in a bubble and not allow them to be informed of any policy considerations. This would be particularly dangerous with respect to terrorism and extra-territorial prosecutions that can affect foreign alliances and national security.

The other stark alternative is to accept that the head of government can call the shots on high profile prosecutions. This would mean that those without the special commitment to the rule of law would face the temptation of dictating prosecutorial policies so as to help their friends and hurt their enemies.

There has been talk about possible RCMP investigations but regardless of how these play out it should be remembered that the purpose of constitutional conventions to place limits on what may otherwise be legal. Our constitutional morality has been and should remain richer than the minimum standards of conduct articulated in the Criminal Code or the Charter.

Prosecutorial Independence

The Supreme Court has recognized in Krieger v. Law Society of Alberta[2002] 3 SCR 372 at 29-39 that the fact that Canadian Attorneys General sit in Cabinet makes it even more important that the Attorney General be able to exercise prosecutorial discretion “fully independent from the political pressures of the government”. Indeed, the Court has declared independence of prosecutorial decisions from partisan considerations “a constitutional principle”.

In R. v. Cawthorne[2016] 1 SCR 983, the Court declared that this constitutional principle of prosecutorial independence applies even to other officials such as the Minister of Defence who make prosecutorial decisions in the military justice system.

The Court also noted that prosecutors are entitled to act on their own view of the public interest in part because “decisions to prosecute (or to not prosecute) can have broad social repercussions, and regard for those repercussions properly informs prosecutorial discretion”. The Court added it is not open to a court “to question a prosecutor’s particular conception of the public interest.” Ibid at 28- 29. This is a self-imposed rule of judicial deference, but in a democracy all exercises of public power should be questioned.

The Commonwealth Secretariat has recently recognized that improper political pressure “may be expressed directly or indirectly, obviously or subtly” but should be rebuffed “in a calm and principled manner, if necessary referring to independence and the instruments in place to guarantee it” with all legitimate directions being in accordance with the law. “Prosecution Independence and Accountability: Principles, Challenges and Recommendations” (2016) 42 Commonwealth Law Bulletin 567 at 588-9 In the Canadian context, attempts to do end runs around either AG directives to the DPP or the AG’s final authority would be improper.

The Need for Reasons for Prosecutorial Decisions

The same article by the Commonwealth Secretariat also recommends that the DPP publish reasons for decisions “on matters of significant general public interest”. Ibid at 594. The decision not to offer SNC Lavalin a deferred prosecution agreement may or may not be justified. Nevertheless, the decision has not been publicly explained by either the Director of Public Prosecutions or the Attorney General in her otherwise full and detailed explanation of events before the Justice Committee on the basis that the matters were still before the courts.

We know that the DPP informed the AG about its decision not to negotiate a remediation agreement under s.13 of the DPP Act S.C. 2006 c.9 s.121. This provision requires the DPP to “inform the Attorney General in a timely manner of any prosecution, or intervention that the Director intends to make, that raises important questions of general interest”. We do not, however, know what the s. 13 notice said and the DPP does not sit in Parliament where she can be asked to provide an explanation for her decision.

Prosecutorial independence should not be an excuse for prosecutors not providing reasons for important decisions. Indeed, the reluctance of the courts to intervene in matters of prosecutorial discretion confirmed in R. v. Anderson[2014] 2 SCR 167 suggests that prosecutors can be more forthcoming about the reasons for the momentous decisions that they make without courts second guessing either the substance or adequacy of their reasons.

There is much that we do not know about the prosecutorial decision not to negotiate a remediation agreement with SNC. For example, how did the DPP or indeed the AG interpret a critical section of the remediation agreement provisions added as s.715.32(3) of Criminal Code in late 2018 that prohibits the prosecutor in foreign bribery cases from considering “the national economic interest, the potential effects on relations with a state other than Canada, or the identity of the individual or organization involved”?

Was the DPP or the AG influenced by the controversy behind the enactment of the provisions as part of a budget bill? Were they influenced by the prospect of judicial review of the proposed agreement? Were they influenced by concerns about Canada’s reputation in implementing the OECD convention against bribery? The courts have consistently recognized the importance of prosecutorial discretion and deferred to it, but the unexplained exercise of power by any office holder in a democracy should not be celebrated.

The DPP’s decision not to negotiate a remediation agreement has been unsuccessfully subject to judicial review by SNC. Justice Kane ruled that the motion for judicial review should be struck because the DPP’s decision not to invite SNC to negotiate a DPA “is clearly an exercise of prosecutorial discretion”. She concluded that the consideration of permissive public interest factors in the Criminal Code did not transform the prosecutorial decision into an administrative decision subject to judicial review in Federal Court. SNC Lavalin v. Director of Public Prosecutions 2019 F.C. 282 at 117.

Presumably a criminal court could still review the exercise of prosecutorial discretion for abuse of process which conceivably could include situations where a prosecutor including the Attorney General has acted for partisan or other improper considerations.

Without full explanations of prosecutorial decisions and waiver of solicitor client and Cabinet confidentiality privilege, however, it is difficult to conceive of a situation where a court or the public would be able to determine that a prosecutor, including the Attorney General, acted for partisan reasons. In R v. Cawthornesupra at 32, the Supreme Court stated that there is a “strong presumption” that the Attorney General (or even in that military justice case the Minister of Defence) “exercises prosecutorial discretion independently of partisan concerns” despite being members of the Cabinet Ibid at 32.

Should the AG Sit Outside of Cabinet?

There has been much interest in reforms that would follow the British practice of having the AG sit outside of Cabinet. In the Canadian context, this would be a massive change following in the wake of the massive 2006 reforms that introduced a DPP to the federal system: reforms that themselves have not fully been digested as witnessed by the paucity of AG directives to the DPP.

The DPP’s desk book recognizes the importance of consultation within government especially with respect to prosecutions with international repercussions, but it is silent on the process to be followed especially with respect to communications with political staff or the PCO. The deskbook could do much better in providing clear and transparent procedures to respect the Shawcross principle and also to guard against the danger of end runs around directions from the AG to the DPP which must be published.

An AG who sits outside of Cabinet may be more immune from casual encounters with the PM or his or her staff that could fall into the nebulous zone of information that may constitute improper pressure or direction under the Shawcross principle. The AG would not necessarily be immune from shuffles. Prime Minister Teresa May replaced her Attorney General in June 2018 with Geoffrey Cox who played a key role in subsequent Brexit negotiations.

That said, even an Attorney General who sits outside of Cabinet will not be an official who like a judge is appointed in good behaviour until retirement. They would likely be a Member of Parliament likely from the governing party. This confirms the continued wisdom of the insight of our leading student of AG’s and DPP’s: the late Professor John Ll. J. Edwards. When it comes to prosecutorial independence much will depend on the integrity of the individuals involved.

Prosecutorial independence is important, but also must be reconciled with representative democracy and responsible government. This raises the question of whether the PM should be able to remove an AG (whether that person sits in Cabinet or not) if the PM no longer has confidence in that person. In a democracy and given the importance and general de facto unreviewable nature of prosecutorial discretion the answer seems to be yes. But again, there needs to be clear explanations on all sides and if need be clear waivers of privilege.

The AG, DPP and Remediation Agreements

Finally, there is the still live question of what happens to the SNC prosecution going forward. The remediation agreement provisions of the Code require the AG’s consent to negotiate an agreement, but not a consent not to negotiate an agreement. Nevertheless, under s.10 of the DPP, the AG retains the ability to issue a directive to the DPP to negotiate a remediation agreement. If such a directive is provided in an individual case, it should be incumbent on the new AG to explain his reasons fully. Solicitor client privilege and Cabinet confidences should be waived in the interest of transparency.

At the same time, it is possible under the DPP act that the publication of such a directive in the could be delayed until the completion of the prosecution or other related prosecutions. The directive power has rarely been used and never with respect to a specific prosecution. Jody Wilson-Raybould testified that she would have resigned from Cabinet had one been used in the Lavalin prosecution.

Ironically, the current AG may not issue a direction or take over the Lavalin prosecution in part because of partisan political reasons because it would be seen not only as interference with prosecutions by as a move to benefit a Quebec based company that would be very unpopular in the west. The power in DPP Act that allows the AG to issue directions or even take over a prosecution is a legitimate democratic safeguard, but one that should require an AG to explain and defend his or her interpretations of both the legal and non partisan public interest considerations that animate such extraordinary interventions.

It could be in the public interest to enter into a remediation agreement that could impose meaningful consequences on SNC and ensure that it takes steps to avoid improper conduct in the future. Much would depend on the proper interpretation of the Criminal Code provision taken from the relevant OECD bribery convention that prohibits consideration of the national economic interest or the identity of the accused. This again underlines that we do not have explanations and reasons for why the DPP decided not to negotiate a remediation agreement and why the former AG decided that was not a case that warranted her intervention in that decision.

Prosecutorial independence is important, but it should be accompanied by a prosecutorial willingness to explain and defend the conception of the public interest that animates their decision.