Challenging the Ethics Commissioner’s Report: Justin Trudeau, Jody Wilson-Raybould,
And Remediation Agreements in the Criminal Code
The Ethics Commissioner, Mario Dion, made some surprising and questionable choices in his report on the role of Prime Minister Trudeau in considering the decision to prosecute SNC-Lavalin. The report itself is written and organized in a way that makes it difficult to recognize those choices and understand their significance. This response attempts to clarify those issues and argues that his choices allowed him to reach a conclusion that is not supported by the Conflict of Interest Act.
This article is supported by a detailed review and commentary entitled Dissecting Mario Dion’s Analysis and Conclusions at seekingobjectivity.ca, made necessary to unravel the complex approach he adopted. That review is somewhat repetitive of this presentation but links the arguments directly to the paragraphs in his report and also adds some further arguments in a few instances. Mr. Dion’s analysis has been criticized by legal analysts Errol Mendes and Susan Wright who flagged the issues without addressing in detail how they relate to Mr. Dion’s analysis and conclusion. I attempt here to identify and untangle the important components of his analysis and their implications.
Previous articles in this series addressing the controversy over the decision to not offer SNC-Lavalin a remediation agreement or Deferred Prosecution Agreement (DPA) emphasized the need to reflect on the objectives and conditions in the new legislation that established the DPA option. That context is critical to understanding and appraising the controversy. The main objective of DPAs is to reduce the negative consequences for innocent parties (employees, customers, pensioners, suppliers, and others) that could accompany a criminal conviction. It thus provides an alternative to prosecution that allows for significant financial penalties while reducing the negative consequences to innocent parties. However, to use the new tool or option provided by DPAs prosecutors must evaluate and compare the implications for the public interest of criminal prosecutions versus a DPA. Such an evaluation can be complex, involving estimating impacts on the company and the economy that are not part of a prosecutors normal scope of training, experience or regular activities.
This new legislation meant the SNC-Lavalin decision involved a legitimate public policy issue with significant implications for the public interest that other members of the government bureaucracy had a professional responsibility to understand. That understanding could facilitate acceptance of the decision, enable explanation to affected parties and the public, and possibly lead to amendments to the legislation to fix any unforeseen problems. The communication between others in government and the office of the former Attorney General (AG), Jody Wilson-Raybould, led eventually to her accusation that there had been a concerted attempt to change her decision. If true, that would contravene the principle that deciding on criminal prosecutions is a prerogative of the prosecutor, who should not be subjected to undue pressure from colleagues. The accusation came after Ms. Wilson-Raybould had been transferred to another role in Cabinet, and the subsequent controversy resulted in a hearing before the Justice Committee in the House of Commons. The testimony from that hearing was available to the Ethics Commissioner along with his own investigative interviews.
Mr. Dion’s Approach to the Analysis
At paragraph 246 (246) Mr. Dion sets out Section 9 of the Conflict of Interest Act (Act) S.C. 2006 c.9., under which he initiated his investigation.
Section 9 reads:
9. “No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests”.
His approach involved two steps. Step 1 was to determine whether Mr. Trudeau had sought to influence the decision of the former Attorney General (AG). If the answer was yes, Step 2 would be to determine whether or not that influence was intended to improperly further another person’s private interests (in this case SNC-Lavalin). If the answer in step 2 was also yes, he would conclude that Mr. Trudeau was in contravention of the Act. If the answer was no in either step Mr. Trudeau would be exonerated.
However, that is not how he presented it. Instead he began with step 1 and as a preliminary matter he noted at 249-251 that he chose not to revisit the decision of the DPP and the former AG because that is a matter of prosecutorial discretion. That choice means the new legislation is largely set aside in step 1. That is significant and will be addressed later in this piece. He then allocates 6 of 18 pages to explain his reasons for concluding that there was an attempt to influence the decision (252-286). Then he turns to step 2 under the heading Improperly Furthering Private Interests. The next 6 pages discuss public versus private interests, the nature of SNC-Lavalin’s interests, the meaning of the word improper, and the national economic interest, which is allotted 4 of the 6 pages. And finally, and somewhat incongruously, he turns back to step 1, with the last 6 pages devoted to a discussion of the importance of prosecutorial independence.
The unusual structure of the report had the unfortunate result of masking some important aspects of the controversy, and led the Commissioner to essentially work around the words in his own Act in order to find Mr. Trudeau contravened it. It also allowed him to finish strongly with broadly accepted views on prosecutorial independence. However, that discussion was not particularly relevant to the matter at hand, particularly since it is not something targeted by the Conflict of Interest Act.
Assessing Mr. Dion’s Analysis—Step 2
I begin my critique of Mr. Dion’s analysis with step 2, because that step is crucial to establish any contravention of section 9 of the Act. Of course establishing in step 1 that there was an attempt to influence the decision is also important as otherwise there is no step 2. But influencing a decision alone does not contravene the Act. Policy discussion and debate in government is always about influencing people to accept your view of the world. What is never acceptable is to influence anyone in order to secure a private interest for yourself or someone else.
The initial presentation of section 9 appears at 246, the beginning of the section on Analysis and Conclusion. Six pages later he turns to the essential question under the heading “Improperly Furthering Private Interests”. Two crucial paragraphs begin this part of the report at 287 and 288. In 287, Mr. Dion notes that seeking to influence a decision is insufficient to contravene Section 9. The second step “indeed the crux of this examination is to determine whether Mr. Trudeau through his actions and those of his agents, sought to improperly further the interests of SNC-Lavalin” (note this phrase does not say private interests).
It is at this point in the analysis that Mr. Dion provides a definition in the Act that is critical to the interpretation of Section 9. At 288 he writes, the Act specifies that
“private interest does not include an interest in a decision or matter (a) that is of general application; (b) that affects a public office holder as one of a broad class of persons; or (c) that concerns the remuneration or benefits received by virtue of being a public office holder [emphasis added].”
There are 42 paragraphs (6 pages) between the initial presentation of Section 9 at 246 and this definitional clause that is crucial to correctly interpreting section 9, which is restated here.
9. “No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests” [emphasis added].
The definitional clause is important because the new legislation on DPAs establishes a policy regime that is of general application to all companies (all public policy is inherently of general application). Parliament considered the new regime to be in the broad public interest. The inclusion of this condition on how the Act defines “private interest” is logically intended to, or at least serves to, ensure that government employees cannot be accused under Section 9 as having a conflict of interest when the matter at issue involves broad public policy. A straightforward interpretation of the Act would reasonably suggest that it might be difficult or impossible to assess Mr. Dion’s Step 2 in a way that would support a finding that Mr. Trudeau contravened it.
Curiously, Mr. Dion refers throughout the report to SNC-Lavalin’s interests (not private interests) and to “further another person’s interests” (not improperly further …). These significant departures from the legislative wording are disturbing because if section 9 had been presented together with the clause conditioning the meaning of private interest, it would be very difficult to convey or even reach Mr. Dion’s conclusion.
I begin with one blatant example of Mr. Dion’s misuse of language. At 248 he says, “Even a single finding of improper influence would lead to a contravention of section 9.” This is not correct. Influencing the decision does not contravene the Act—as elaborated below.
Comment: This is an oddly incorrect interpretation. It should read “even a single finding of improperly furthering another person’s private interest would lead to a contravention of section 9”. Even influencing the decision of an Attorney General is clearly wrong only if it involves undue pressure to reach a specific decision according to the broadly accepted Shawcross doctrine. The unfortunate wording chosen by the Commissioner begins to set the stage for the eventual conclusion by focussing on the aspect of influencing a decision instead of the more critical concern of the Act which is “…to improperly further another person’s private interests”. This is, of course, the interpretation of the issue preferred by the former AG, who also wanted to play down the significance of a new piece of legislation that provided some specific guidance about the interpretation of the public interest.
The two most important places where Mr. Dion deviates from the appropriate wording are in his Conclusion and in the Executive Summary. The Conclusion is at 351.
351 … Because SNC-Lavalin overwhelmingly stood to benefit from Ms. Wilson-Raybould’s intervention, I have no doubt that the result of Mr. Trudeau’s influence would have furthered SNC-Lavalin’s interests (both improperly and private are omitted).
By using this approach Mr. Dion separated a critical definition from section 9 itself. Thereafter, he consistently omits the word “private” when considering the interests Mr. Trudeau was supposedly furthering. This has the unfortunate consequence of diminishing the significance of “private” in the minds of both the commissioner and his readers.
Similarly, in the Executive Summary that appears at the beginning of the report he writes,
“Simply seeking to influence the decision of another person is insufficient for there to be a contravention of section 9. The second step of the analysis was to determine whether Mr. Trudeau through his actions and those of his staff, sought to improperly further the interests of SNC-Lavalin” (private is omitted).
The use of “interests” instead of “private interests” also seems to blurs the connection between the conclusion and the definition that disallows that conclusion. In spite of his repeated use of the term interests as opposed to private interests, the Act itself is very clear; private interests do not include matters that are of general application. Because the legislation authorizing DPAs is a public policy adopted by Parliament, it is a matter of general application. Therefore, it would appear that Mr. Dion cannot legitimately find Mr. Trudeau in contravention of the Act.
Another essential element in the wording of section 9 supports this interpretation. Paraphrasing that section as follows, it says, No public office holder shall seek to influence a decision of another person “so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests” [emphasis added]. The inclusion of improperly with respect to furthering another person’s private interests is consistent with the interpretation of private interest in the act because specifying ‘improperly’ foresees and allows for a proper way that private interests might be furthered; namely through a public policy of general application. Public policy that enhances the broader public interest inevitably enhances the private interest of individual entities. The structure of the Act and its definitions are intended to ensure that advocating for good public policy does not cause one to run afoul of the Conflict of Interest Act. And again Mr. Dion omits the word improperly from his conclusion in 351.
351 … “Because SNC-Lavalin overwhelmingly stood to benefit from Ms. Wilson-Raybould’s intervention, I have no doubt that the result of Mr. Trudeau’s influence would have furthered SNC-Lavalin’s interests” (improperly is omitted, as is the word private).
In addition to repetitive omissions of the words private and improper when referencing SNC-Lavalin’s interests, Mr. Dion included a discussion of public versus private interest at 288-292 and the meaning of the word improper at 296-298. These convoluted discussions unfortunately deflect attention from the straightforward interpretation set out above. Then he again circumvents his problem with the Act’s critical inclusion of the phrase “improperly further another person’s private interests” by using the following sentence, which invokes his own definition of improper. This concluding sentence is unfortunately misleading because the impropriety it refers to is the attempt to influence the decision which does not, on its own, contravene the Act.
351 …The actions that sought to further these interests were improper since the actions were contrary to the constitutional principles of prosecutorial independence and the rule of law [emphasis added].
To be clear, using his definition of improper allows him to essentially convey his belief that it was improper to try to influence the decision (as opposed to applying undue pressure to do so as implied in the Shawcross doctrine). However, this interpretation of improper relates to Step 1, the attempt to influence the decision, not to the critical requirement in Step 2 that the intent was to improperly enhance the private interests of SNC-Lavalin. In any case, I believe this shows that Mr. Dion failed to establish that the communications between other members of government and the former AG were intended to further the private interests of SNC-Lavalin. What may have been intended was to understand the treatment of the policy and ensure it was correctly represented in the decision. Even if that led to a change in the decision, and SNC-Lavalin benefited, private interests furthered as a result of the application of public policy is not a contravention of the Act.
At the beginning of his discussion entitled “Improperly Furthering Private Interests” at 287, Mr. Dion identifies the crux of the matter as relating to improperly furthering the interests of SNC-Lavalin (although he errs by not saying “private interests”). Then he says, “Here I must explore several fundamental legal and constitutional principles that ultimately go to the heart of our system of government”. This exploration turned out to be an elaborate review of what is meant by private interests, SNC-Lavalin’s interests, the meaning of improper, and national economic interests. I comment on these elements in the companion piece (Dissecting …) as they are somewhat complex and make it difficult to uncover the essence of his decision-making process. That review ends with an extended discussion of the national economic interest. Recall that there is a clause in the criminal code that says, if the company has been accused of bribing foreign officials, the prosecutor can’t take national economic interest into account when deciding on whether a DPA is appropriate. His discussion of that issue concludes at 319 with statements crucial to his interpretation.
“In my view, it remains unclear whether these factors are truly national economic interests, which must be excluded from consideration, or are legitimate factors that must be weighed in deciding whether to negotiate a remediation agreement. Regardless of how such interests are classified, in this case, the larger public considerations are inextricably linked to SNC-Lavalin’s private interests. Accordingly, Mr. Trudeau could not properly put forward any arguments involving public or private interests to the Attorney General.”
I have separated these statements below because the first has relevance for his step 1, to be discussed later, whereas the second statement is relevant to the current assessment of step 2. After noting his uncertainty as to whether national economic interests must be weighed in deciding on a remediation agreement, he says
Regardless of how such interests are classified, in this case, the larger public considerations are inextricably linked to SNC-Lavalin’s private interests. Accordingly, Mr. Trudeau could not properly put forward any arguments involving public or private interests to the Attorney General.”
This is a remarkable error in fact and logic since all public policy is broadly based yet can always be related to individual interests. Those individual interests, when aggregated, provide a public interest justification for the investment in the wide-ranging policy. This sentence illustrates the ongoing confusion in the argument of Mr. Dion as it relates to the Act. The situation where public considerations are inextricably linked to any private interests is fully recognized in the wording of the Act. “A private interest does not include an interest in a decision or matter (a) that is of general application…” This ensures that advocating legitimate public policy cannot be interpreted as intent to “improperly further another person’s private interests…” Mr. Dion made it easier to ignore that through his early, unfortunate decision to avoid a detailed review of the legislation establishing remediation agreements or DPAs. That legislation was central to all communications among members of government.
I chose to begin my critique with step 2 of Mr. Dion’s interpretation because that step is essential to reach his conclusion. Proper interpretation of the Act, in my view, shows step 2 does not support that conclusion. He should have ended his investigation with that revelation, thus exonerating Mr. Trudeau.
Assessing Mr. Dion’s Analysis—Step 1
There are also problems with step 1, which is intended to determine whether Mr. Trudeau and others in government attempted to influence the decision of the former AG, Jody Wilson-Raybould. This is less critical since even if such an attempt can be established it does not contravene the Act. But it is, nonetheless, important to consider whether the charge of ‘seeking to influence” has been supported by Mr. Dion’s analysis.
Early in his analysis, at 249, Mr. Dion decided not to consider the new legislation’s objectives and conditions in detail. He justified that choice as a response to Mr. Trudeau and his legal counsel’s contention that the decision not to offer a DPA was somehow inadequate—whereas he viewed that decision as clearly within prosecutorial discretion. That reasoning is unsatisfactory because his role did not require him to pass judgment on the former AG’s decision. Rather, it required him to consider whether the communication between government bureaucrats and Ms. Wilson-Raybould was intended to change her decision. Since he did not review the legislation in detail, he could not even consider an alternative explanation of that communication; namely that it was intended to understand the rationale as well as gain comfort that the public interest evaluation was carried out as implied in the new legislation. Understanding the rationale for the decision may have provided a basis for amending the legislation in future. And since this was new untested legislation that involved consideration of the public interest at a level of complexity greater than normally encountered by prosecutors, the decision may have benefitted from review by both internal and external sources that have special expertise in that area. This is not only a logical alternative explanation for persistent communication it was also identified as the motivation for the communication by both Mr. Butts and Mr. Wernick in testimony to the justice committee and presumably in interviews with Mr. Dion as well. Significantly, external advice was also recommended by Ms. Drouin, the former AG’s Deputy Minister.
The decision to preclude relevant information and a perspective that might have emerged from a detailed review of the new legislation is questionable and ultimately enabled a somewhat superficial review and interpretation of the communications. This leads to his selection of four occasions where attempts to influence the decision occurred. These occasions are addressed at 266 in the companion piece entitled Dissecting Mario Dion’s Analysis. Every one of those examples is weak and debatable. I am compelled to highlight one of them because it was the most surprising and disturbing. That is the inclusion of the recorded conversation between the former AG and Michael Wernick, former Clerk of the Privy Council. I repeat below my discussion of this in the first article in this series, SNC-Lavalin: Facts, Myths, and Uncertainties.
Even a secretly recorded conversation with Mr. Wernick, though it supported the former AGs initial testimony about actual words spoken, did not support her interpretation about pressure and veiled threats. The tone was non-threatening and Mr. Wernick emphasized the decision was hers to make. He was clearly struggling to engage a line of conversation that might uncover the rationale for the decision. Part of his job, as Clerk of the Privy Council, is to help resolve differences within the Cabinet. In his effort to persuade the former AG to provide a clear explanation of the decision or consider adopting a more flexible review, Mr. Wernick did convey concern about the Prime Minister and the former AG being at odds. That may have been unwise—it allowed her to make a claim of “veiled threats” (although again, I believe the tone contradicts that interpretation). Moreover, Mr. Wernick thought he was having a private conversation with a member of a team he was supporting, someone with whom he could be open, and have a frank exchange about an important policy disagreement. Such exchanges are an integral and ongoing part of the work of the Privy Council.
The fact that the former AG was recording that call without Mr. Wernick’s knowledge means she was in a position to affect the course of the conversation in a subtly strategic way, for example through words or hesitations that might draw Mr. Wernick into questionable areas, and more directly by enabling her to put on the record a claim that she was uncomfortable with the discussion and it was inappropriate. She did not appear intimidated in the least. Rather she sounded more aggressive than one might expect, given the hesitant tone of Mr. Wernick and his assurances that they weren’t asking her for a specific decision. Her follow-up email to her Deputy, to the effect that the “s… was about to hit the fan” loses all significance when linked to this engineered conversation. Furthermore, Mr. Wernick is an advisor not a decision-maker: any truly worrisome uncertainty could have been resolved by a conversation with the Prime Minister.
And finally, a lawyer taping a conversation with their own client without advising that client is, of course, a major breach of ethics and a personal betrayal. The willingness to overlook or rationalize that in the media and by political opponents of the government is startling. Such behaviour calls into question the reliability of everything Jody Wilson-Raybould has said in her allegations against her colleagues. How can one now ignore the possibility that all of her recollections have been coloured to strengthen her desired interpretation of what was happening? Additionally, she had previously instructed staff on September 17th 2018 to maintain a detailed chronology on all meetings about SNC. As discussed further below, she later instructed staff not to forward a report requested by the Privy Council assessing the possible effects on SNC of a criminal conviction. All of these things reveal a frame of mind that might easily be taking everything in with an inordinate degree of suspicion. This inappropriate recording does not support her allegations, it raises questions about them.
I set out this discussion again because I initially found the easy acceptance of this behaviour in the media to be a disturbing surprise. That turned out to be a minor surprise compared to seeing it adopted in a formal review by the Commissioner.
That, in my view, enormous lapse in judgement aside, the point for purposes of this discussion is that his approach to the analysis makes all of his so-called examples of occasions on which there was an attempt to influence the decision more questionable by precluding any consideration of the possibility that communications between others in government and the former AG represented due diligence rather than undue influence. Even if there were some inappropriate comments and a pre-existing preference for the use of a DPA (which the Commissioner asserted and officials denied), a convincing reason for not using the new tool would have likely ended the discussion.
This brings me back to the four page discussion of the national economic interest. The attention given that topic strengthens my speculation that it was likely the basis of the DPP’s initial decision not to offer SNC-Lavalin a DPA. Mr. Dion’s purpose was apparently to defend that decision but his discussion also supports an interpretation that others in government were seeking primarily to understand the decision rather than change it. At 319 he concludes his review of national economic interests with the following statement.
“In my view, it remains unclear whether these factors are truly national economic interests, which must be excluded from consideration, or are legitimate factors that must be weighed in deciding whether to negotiate a remediation agreement.
This sentence acknowledges the difficulty other Departments in government were faced with. They had a responsibility to understand how the decision was made and what it meant for the viability of the legislation in future. The probable basis of the DPP’s decision is that the clause that said she couldn’t take into account “national economic interests” caused her to conclude that SNC-Lavalin did not qualify for a DPA. If that is wrong, her decision was likely wrong. This sentence tells us that it remains unclear to the Commissioner. Others in government had a responsibility to clarify that issue. That means it is a credible explanation of the intent of their communications with the former AG. Since proper interpretation of “national economic interest” might reveal that the DPP’s decision was wrong. It also explains why the former AG’s colleagues in other departments (and her own Deputy) tried to convince her to get outside expert advice. Such advice was not guaranteed to change her decision. It would either confirm her decision or raise sufficient doubt to perhaps convince her to change her mind. Either way, a valuable level of understanding would be reached that would facilitate future actions with respect to the legislation. The bottom line is that Mr. Dion has acknowledged an aspect of the issue that provides a credible explanation as to why others in government would be seeking to understand the decision not necessarily trying to change it. If external advice supported the decision, presumably that would end it. If it did not support the decision the AG would have the opportunity to reconsider—it would still be her decision. This seems to imply that in Step 1, he cannot reasonably conclude that Mr. Trudeau’s intent was simply to influence a decision; it was also to understand and ensure the correct treatment of the new legislation in the formulation of a decision in a new and complex legislative environment. Therefore, the first step of the report’s two-step analysis; seeking to influence the decision of another person, is flawed, inconclusive, and quite possibly wrong.
The Commissioner’s conclusion that the Prime Minister was in contravention of section 9 of the Conflict of Interest Act is vulnerable on two fronts. First, he was able to reach the conclusion relating to step 1, seeking to influence the decision, only by largely ignoring the new legislation that established remediation agreements or DPAs as an alternative for criminal prosecutions. He thereby ignored the legitimate interest other members of government had in understanding how the new legislation was evaluated in making the choice between prosecution and a DPA. This led or allowed him to interpret any level of discussion and questions as an attempt to influence the decision of the former AG.
But even if he was able to show, in this first step of his two-stage process, that the Prime minister sought to influence the decision of the Attorney General, that was not sufficient to reach his conclusion that the Act was contravened. That is because in the Conflict of Interest Act, seeking to influence a decision is not the problem. Rather it is seeking to influence a decision in order to achieve some private benefit that is frowned upon. So while he does have to show that there was an attempt to influence a decision, he also has to show that the purpose of that attempt was to improperly further the private interests of another person – in this case SNC-Lavalin.
Ignoring the remediation agreement alternative (DPA) led to another problem at Step 1. He did not review the potential implications of a DPA sufficiently to be able to say that using it would be in SNC-Lavalin’s private interests. There is a broad range of uncertainty around which of the two alternatives would provide the greater financial penalty. This is discussed in detail in the Dissecting… article which I briefly excerpt here. “Certainly the sum of forfeiting any proceeds from the wrongdoing, plus a penalty set by the prosecutor, plus any reparations that might be payable would be significant. It might be higher than a fine following conviction in a court. Siemens corp. resolved a similar charge with the U.S. and Germany and ended up paying a total of $US 1.6 billion in forfeited profits and fines. They did not have the reparations aspect to contend with as is the case in Canada. Mr. Dion simply ignored any consideration of the possibility that a DPA might have higher financial costs than a court judgment”.
Mr. Dion also deviated from the Act in his Executive Summary. In that summary, Mr. Dion concludes (or assumes) that SNC-Lavalin “had significant financial interests in deferring prosecution”. Those interests (again, not private interests) would likely have been furthered had the former AG changed her decision and enabled a DPA. He then says the actions that sought to further these interests were improper since they were contrary to the Shawcross doctrine and the principles of prosecutorial independence and the rule of law. Again however, Shawcross and prosecutorial independence relate only to step 1, “seeking to influence the decision of another person”. They are not related to or support a conclusion that the intent was “to improperly further another person’s private interests” as required by the Act in step 2. Mr. Dion never attempts to resolve step 2 in the manner clearly required by the Conflict of Interest Act. He discusses improperly at length, but then provides his own definition that seems at odds with what the act suggests. However, even that broadened definition can only be applied to his perception that there was an attempt to seek to influence the decision (step 1). This seems to imply that an “improper” act of trying to influence the prosecutor’s decision would meet the requirements of the Act. It would not. As a famous quote in a somewhat more serious incident goes, “it was worse than a crime, it was a blunder.”