This is not some junior clerk they were attempting to hoodwink. This was the chief law officer of Canada

It is the element of deception that raises the conduct described in the ethics commissioner’s report from the merely unlawful to the potentially criminal.

Until now what we had thought we were dealing with was only a sustained and mounting campaign, by the prime minister and by those acting at his direction, to pressure the former attorney general of Canada to set aside the prosecution of SNC-Lavalin, a company with a long history of corruption and even longer history of contributing to the Liberal party, for reasons that explicitly included considerations of partisan advantage.

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All of this was vastly improper on its own. Prosecutorial independence is one of the bedrock principles of our system of law, as fundamental as judicial independence. It is settled law that the attorney general, in consideration of a particular prosecution, may not be pressured by anyone, least of all the prime minister, for any reason, least of all partisan gain. Yet Jody Wilson-Raybould was, repeatedly, to the point of being threatened with dismissal if she did not capitulate.

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Still, if unethical and contrary to law, this was relatively above board, in so far as the pressure on the attorney general was direct and undisguised: a scandal, to be sure, and grounds for more resignations than those submitted to date, but not, as the cliche has it, a crime. That, of course, is not the standard we should expect of public office holders — that they should merely avoid committing crimes — but it is at least a standard.

Whereas the conduct unearthed by the ethics commissioner may have fallen below even that line. What we have learned is that senior government officials were not just pressuring the former attorney general to interfere in a criminal proceeding, by the unprecedented means of overturning a decision of the independent director of public prosecutions: they were deceiving her.

Everyone involved in this black farce should be ashamed of themselves

They did so not only by keeping important information from her, but by providing her with misleading information. They acted, not only in concert with each other, but with officials at SNC-Lavalin, and they carried on this conspiracy to, in the commissioner’s words, “circumvent, undermine and ultimately attempt to discredit” the authority of the attorney general even as the company’s appeal of the DPP’s ruling was before Federal Court — a proceeding to which the attorney general, via the DPP, was a party.

It was known before how ferociously the company had lobbied various ministers and public officials, even after it had been charged, to insert a provision in the Criminal Code allowing it to escape prosecution: the famous remediation agreements. It was not known until now that it had been at the company’s suggestion that this was inserted in the 2018 budget implementation bill, the better to ensure that it could not be voted upon separately or even examined by the competent parliamentary committee.

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Likewise, it was known that, after the DPP had ruled the company was ineligible, under the terms of the same legislation, for such an agreement, the company had swarmed the government to have her decision overturned. It was not known how fully, indeed eagerly, representatives of the prime minister, the finance minister, and the clerk of the privy council had participated in this campaign — in support, that is, of a private company, charged with serious crimes under the law, against the offices of government responsible for applying the law.

The ethics commissioner’s report describes their many, many meetings, and what was discussed: how the company shared the PowerPoint presentation in support of its case for remediation with Finance officials, who offered suggestions for how it might be improved; how supportive legal opinions the company had commissioned from two former Supreme Court justices, Frank Iacobucci (the company’s lawyer) and Jack Major, were circulated amongst senior government officials; how the company chairman, Kevin Lynch, formerly the clerk of the privy council, solicited the then-Clerk, Michael Wernick, for advice.

All of this scuttling about and sharing of intelligence — at one point it was even discussed whether Wilson-Raybould could be prevailed upon to intervene in the judicial review, that is against her own department, or whether a “settlement” could be negotiated over the DPP’s head — went on entirely without the knowledge of its intended target, the attorney general.

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When, similarly, the campaign turned to urging her to seek a second opinion from “someone like” the former chief justice of the Supreme Court, Beverley McLachlin, the attorney general was never told that it had been SNC-Lavalin that suggested recruiting McLachlin, that company and government officials had already approached her, or that, according to Iacobucci, she had agreed.

As the ethics commissioner writes, “senior staff in the Prime Minister’s Office pressed Ms. Wilson-Raybould on the idea of seeking external advice on the matter — all the while knowing the advice that would be given and selectively withholding other material information from (her).”

This is not some junior clerk they were attempting to hoodwink. This was the chief law officer of Canada. The lawful way to proceed was clear: to respect the independence of the DPP, whose ruling was well within the law but was in any case within her discretion. Had the attorney general instead been bamboozled into overriding her, the effect would have been to substitute a decision grounded in law with a decision grounded in nothing but the self-interest of SNC-Lavalin and the political interests of the Liberal party.

It is this element of deception, as I said, that takes us into new territory. Whether or not the behaviour described amounted to an attempt to “obstruct, pervert or defeat the course of justice,” as proscribed under s. 139 (2) of the Criminal Code, it raises clear questions of breach of trust (s. 122). Public office holders are generally expected not to deceive one another (they are obliged under federal ethics guidelines to perform their official duties in a manner that “bears the closest scrutiny”) but to do so in the service of helping a private company evade prosecution on serious charges must surely invite the attention of law enforcement.

Everyone involved in this black farce should be ashamed of themselves. A few should probably be hiring lawyers.