Dissecting Mario Dion’s Analysis and Conclusions (Pages 39-57; Paragraphs 245-352)
This is a supplement to the recent post, Challenging the Ethics Commissioner’s Report: Justin Trudeau, Jody Wilson-Raybould, And Remediation Agreements in the Criminal Code. This review was undertaken as a way for me to set out some immediate reactions and get a clear sense of his approach to this matter. It goes through Mario Dion’s report by paragraph and provides commentary on elements of particular interest. It was a necessary effort to unravel the complex approach adopted in the report. Careful readers may want to have available the full report since I summarize the report’s presentation to avoid undue length. I include it here for the likely few readers who are highly interested and would benefit from the sequential approach..
Outline of the Analysis and Conclusions Section of the Report. (Page) [paragraph]
Analysis (39) [245-248]
Preliminary Observations (39) [249-251]
Seeking to Influence the Decision of another Person (40-44) [252-286]
Improperly Furthering Private Interests (45)
Public vs. private interests (45) [287-292]
The nature of SNC-Lavalin’s interests (46) [293-295]
Meaning of the Word Improper (46) [296-301]
National Economic Interests (47-51) [302-319]
Partisan political interests put to the Attorney General (51-54) [320-334]
Discussions during ongoing legal proceedings (54-55) [335-340]
Prosecutorial Independence and the Role of the Attorney General (55-57) [341-350]
Conclusion (57) [351-352]
The section of the Conflict of Interest Act that Mario Dion chose to apply for 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.
Comment: I initially preview a major aspect of my criticism that will be developed as it comes up in the report. The Act contains a couple of crucial phrases that Mr. Dion consistently quotes incorrectly in his report including its conclusions and in the summary.
Mr. Dion’s Conclusion
351. I find that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence the decision on whether she should overrule the Director of Public Prosecutions’ decision not to invite SNC-Lavalin to enter into negotiations towards a remediation agreement.
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 (omitted word improperly) furthered SNC-Lavalin’s (omitted word private) interests. 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].
Mr. Dion’s Statement in the Summary
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. The evidence showed that SNC-Lavalin had significant financial interests in deferring prosecution. These interests would likely have been furthered had Mr. Trudeau successfully influenced the Attorney General to intervene in the Director of Public Prosecution’s decision. The actions that sought to further those interests were improper since they were contrary to the Shawcross doctrine and the principles of prosecutorial independence and the rule of law.
Comment: Mr. Dion concludes that SNC-Lavalin would have benefitted 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. This is a surprising misinterpretation of Section 9 above.
There are two flaws in this reasoning. The first is that he meets test 1 (in his mind) by citing various actions that he concludes demonstrate an attempt to influence the decision. But the second (and primary) test is whether the intent of that was to “improperly further another person’s private interests”. He answers yes, and explains it is because the actions that sought to further those interests were contrary to the Shawcross doctrine and prosecutorial independence. However, that argument relates only to the first test, “seeking to influence the decision of another person”. It does not support a contention that the intent was “to improperly further another person’s private interests.
The second flaw is that the second test must show that the action was intended to “improperly further another person’s private interests”. As I will argue in detail later, it is not a contravention if those private interests are furthered properly. Properly furthering private interests would happen whenever a legitimate public policy had been enacted to improve laws that affect many organizations. When such laws were applied in a specific case they would inevitably further the private interests of one among the many. That is why the Conflict of Interest Act includes a definitional clause that Mr. Dion references at par. 288 which says “a private interest does not include an interest in a decision or matter, a) that is of general application”(among other things). So if the communications between the former AG and her colleagues were intended to clarify how the public policy and public interest provisions in the DPA were evaluated and incorporated in the decision, there would be no contravention of the Act. This may seem somewhat complicated to the reader—it should not have been complicated for the Ethics Commissioner.
It is important to understanding the report and its possible weaknesses to keep in mind the section of the Conflict of Interest Act (Act) S.C. 2006 c.9, s.2 under which the allegation of wrongdoing is assessed.
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.
Comment: A straightforward interpretation of this section would be that it is focussed on using influence to further the private interests of your own circle of friends and acquaintances. Legally the last category; namely, another person’s private interests can be used to include an organization and he has done so in order to pursue his focus on the possibility that the PM intended to improperly further the private interests of SNC-Lavalin. However, he should have acknowledged in conjunction with Section 9, the fact that the Act specifically excludes legitimate public policy by definition. The report notes this much later at Par. 288 which reads
“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].”
245. section 9 informal
246. 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 [emphasis added].
Comment: Note there is a “proper” way private interests may be furthered; namely by introducing and promoting broadly applicable public policy that also serves to further the public interest and the interests of a broader group of companies that could be affected by the policy.
247. Contravention comes simply from the attempt—successful or not.
248. “Even a single finding of improper influence would lead to a contravention of section 9.”
Comment: This is a curiously 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.
Preliminary Observations (39)
249/250/251. Here Mr. Dion says he did not consider any arguments related to the AGs decision about intervening or the DPPs decision for not inviting a remediation agreement also known as a Deferred Prosecution Agreement (DPA). It is not his or others place to make such judgements. Nor did he consider relationships in Cabinet or her alleged political motivations or temperament (since immaterial).
Comment: This is another unfortunate decision because it leads him to downplay, if not completely ignore, the fact that new legislation establishing the potential for remediation agreements or Deferred Prosecution Agreements (DPAs) had recently been passed by Parliament. As argued in the initial post on this subject and at “Policy Options” here, the passage of legislation enabling the DPA created an increased responsibility on both DPP and AG to ensure proper evaluation of the public interest. That policy concern justified others in government wanting to understand why the first possible implementation was rejected by the DPP, and whether that was appropriate. Such understanding would provide comfort in this case where new legislation seemed to clearly apply and so not using it would be surprising and would therefore reasonably lead to expectations of a credible explanation of why it was not adopted.
Mr. Dion’s approach essentially allowed him to interpret a lot of attempted communication as interference intended to influence the decision. The other side testified the communications were mainly intended to understand how the new legislation was treated and to ensure the public interest issues in the new legislation were properly assessed. His approach also essentially adopted the position of the former AG who had an interest in characterizing the entire matter as interference in prosecutorial roles, rather than possibly engaging legitimate policy discussion. That interpretation is not supported by the facts, completely dismisses the testimony of government witnesses before the Justice Committee, and brings into question the entire analysis performed by Mr. Dion. This is not a matter of whether anybody is entitled to make judgements about the Attorney General’s decisions. It is a question of establishing a proper context within which to judge whether or not the Prime Minister contravened Section 9 of the ACT. That context must include the broader issue of the recently established public policy relating to DPAs, especially as to whether or not other areas of government had the right, in fact the responsibility to thoroughly understand how that public policy was considered in the process of decision-making of the DPP and the Former AG.
Seeking to Influence the Decision of another Person (40-44)
252-256. Mr. Dion describes the adoption of the Legislation in pejorative terms. He notes communication between SNC and the government, mentions the public consultation and notes that SNC suggested a way the DPAs could be included in the 2018 budget. He then cites the former AGs concern that things were being rushed, that Bill C-74 did not receive scrutiny form Commons Standing Committee on justice.
Comment: This seems to be an attempt to cast some aspersion on the new Legislation.
He does not note in the analyses section that it was reviewed by the standing committee on finance and several senate committees although that was noted earlier in his Findings of Fact section at par. 48. He also did not note that the previous public consultation resulted in strong support for this legislation, or that it was ultimately adopted by the Parliament of Canada. The disparaging manner in which he describes this legislation is surprising. This is good legislation, adopted by other advanced democracies and supported by all political parties. His approach suggests an element of bias at an early stage.
257. The September 4th 2018 memo from the DPP setting out considerations in her decision not to offer DPA surprised colleagues in Cabinet and PMO.
258. The decision was a surprise and “The theme that emerged was the need to find a ‘solution’ that would” …protect the public from adverse effects if SNC was convicted. “It is quite obvious that the preferred solution was for the appropriate public authorities to make use of the recently adopted legislative tool, as was previously done in other countries for alleged corporate wrongdoers, to defer or suspend prosecution in order to “safeguard the public interest”.
Comment: This is the language of the former AG. The testimony of Butts (at 202) and Wernick clearly emphasized the objective of having a clear communicable understanding of why the decision was made. It is likely true that the preference would have been to use the new legislative tool and no one denied that although they claimed that if not used, a cogent explanation would be acceptable. As I have argued earlier in this series, this is a model case for the policy and the use of that tool (leaving aside the legal argument of whether SNC is eligible, an issue I’ll deal with later).
Comment: Of course the government was surprised. It is also of some relevance that during the hearings of the justice committee, it was revealed that the assigned prosecutor on this file wanted a DPA but was overruled by the DPP. That raises some questions as to why the person closest to and most familiar with the file was overruled. If that fact was known by colleagues at the time, which seems likely, it strengthens the argument that there was a legitimate interest in understanding why the decision was made and how the new legislation was treated and therefore how it would be treated in future.
259-260. Again Mr. Dion alludes to instances of warnings from the AG and her staff about inappropriate political interference.
Comment: He did not provide much detail and so the alternate interpretation of these instances remains–that they were attempts to legitimately discuss an important policy that had been passed by Parliament. A few instances of careless comments about political implications provide weak support for the AGs accusations and certainly do not breach the intent of the Shawcross Doctrine that is discussed later by Mr. Dion.
261. The AGs staff outlined political risks in intervening.
Comment: This is set out in par. 68-72 with the political risk mainly relating to the fact that no AG had ever issued a directive on a specific prosecution. That was emphasized by the former AG in her testimony as well. She would have had to provide public notice of such a directive and felt that there was a risk of the perception of political interference. That concern existed in spite of the fact that there was new legislation that could have provided the needed justification. That latter point is not mentioned or considered by Mr. Dion because he has excluded consideration of the decision itself in 249-251 as discussed above.
Mr. Dion does not mention here the other report as described in par. 73-85 wherein the Deputy Minister, Ms. Drouin, recommended the solicitation of outside expert advice. This recommendation and another possibility of informally reaching out to the DPP (par. 82) was discussed but not accepted by the former AG.
262. Mr. Dion asserts that after learning of the Sept 4, 2018 decision of the DPP not to offer a DPA “Mr. Trudeau instructed his staff to seek a solution to prevent economic consequences that would result from a criminal prosecution of the company”.
Comment: This assertion is not supported through reference to specific evidence and is contradicted by the PM in par. 85, “whatever Ms. Wilson-Raybould would decide, his concern was whether this decision could be explained to others in government and to the affected Canadian public.” That sentiment was reinforced in testimony of both Butts and Wernick as well.
263. This notes that the Former AG took steps to review the matter after the Sept 4, 2018 decision.
Comment: He does not mention that “the Attorney General was out of the country until Sept 12, 2018. In that version of events, [she] made the final decision after weighing all of the public interest matters involved in just 12 days” (G. Butts testimony p.5). Again, as noted in my earlier discussions, assessing the public interest can be a complex issue so not seeking expert advice and deciding the matter relatively quickly is, at the least surprising—but not, apparently, to Mr. Dion.
264-265. Trudeau’s only meeting with former AG on Sept. 17, 2018. Notes AG’s view decision is final, the PM and staff view that the decision could be changed any time before court process concluded.
Comment: The latter view is, in general, legally correct.
266. Mr. Dion describes this meeting and notes Mr. Trudeau’s comment about his riding in Quebec and her question as to whether he was politically interfering in a criminal prosecution and his response that he was not just seeking a solution.
Comment: It is not mentioned here that Mr. Trudeau did not recall the interference query nor is there any mention of the policy aspects of the discussion, which had to have been the main part of the conversation.
267. Mr. Dion concludes this first and only meeting “was a first instance of Mr. Trudeau seeking to influence Ms. Wilson-Raybould’s decision on the matter.”
Comment: During the course of a discussion that had to include the new policy and its treatment Mr. Dion cites a mention of Quebec politics and her report that she questioned interference to conclude this is an instance of seeking to influence her decision. Again, Mr. Dion’s early decision to preclude consideration of the new policy aspects of the decision limits Mr. Dion’s perspective. Clearly a discussion about the policy and the public interest had to be the core of the discussion. It is not improper to discuss policy issues and would not be improper to try and ensure the public interest aspect of that policy had been incorporated. Also excluded here is the evidence from par. 107 that Mr. Trudeau asked the AG to “speak with her Deputy Minister and with Mr. Wernick—two public servants—as a way to remove any political considerations from the discussions. The AG agreed to do this although she also says she told Mr. Trudeau these conversations would not change her mind. I have to interject some skepticism on that point—who would agree to a meeting and then exhibit bad faith by saying it won’t change anything. In any case, this is a questionable and certainly weakly supported conclusion.
268-271 Describes ongoing discussions among staff, and then cites SNC-Lavalin’s application for judicial review and the requests to seek either an expedited hearing or a stay to allow internal discussions on remediation policy to continue. Mr. Dion concludes this is a second attempt to influence the decision.
Comment: The request to seek a quick court decision or a stay to enable policy discussion seems like a weak example of an attempt to influence the basic decision. It could legitimately be a desire to attain the desired level of understanding on both sides, about the policy aspects and particularly the public interest issues. Of course, achieving a higher level of understanding about the policy and the public interest might lead to a changed decision – but clarifying policy is not objectionable or interference on its own.
272-278 Describes the discussions about getting external advice on these matters. SNC-Lavalin had asked the former Chief Justice of the Supreme Court, Ms. Mclachlin whether she would be willing to advise, and an officer in the PMO separately did also. The query was specifically whether she would be willing to review and advise on these matters. SNC also sought more targeted advice from former members of the Supreme Court. At 274 Mr. Dion notes the original suggestion from the Deputy Minister to seek external advice had been turned down because of impractical mechanics, implications of perceived political interference, and the AGs questioning of what they could contribute. AT 275 he notes SNC shared the legal opinions they had received with the PMO and others (but not the AG) with the sole purpose of persuading the AG to change her decision. 276-277 relates three attempts by PMO officers to persuade her to reconsider external advice and that happened while the court case was ongoing. At 278 he summarizes that because the PMO continued their promotion of seeking advice, “all the while knowing the advice that would be given”, was a third attempt to bend the will of the Attorney General.
Comment: None of this is definitive and his explanation is reinforced by his decision to downplay the significance of the new legislation to these matters. The AG’s reasons for turning down the Deputy’s initial suggestion; mechanics, perceived interference, and possible contribution were very weak. So looking for another approach to get her to seek advice is understandable and need not cause a change in the decision, just a better exposition of it. The assertion that they knew what the advice would be is hollow. The former Chief Justice would obviously form her own opinion. And at par. 199, it was stated that she had told the PMO officer that she had to be hired by Ms. Wilson-Raybould, not the Government of Canada. So the government could not be sure of the advice forthcoming, although they could reasonably assume that such advice would further their objective of better understanding the reasoning behind the DPP’s decision. That, in turn, might enable future improvements in the legislation. I contend that is a better or at least equally credible explanation of this item as that of the Commissioner, Mario Dion.
279-280 The final and most flagrant attempt to influence Ms. Wilson-Raybould occurred during her conversation with the Clerk of the Privy Council on December 19, 2018. …Ms. Wilson-Raybould expressed in clear terms her view that the conversation amounted to political interference.
Comment: I addressed this before and have simply reproduced my thoughts here. However, I will emphasize first that again, a major objective of Wernick in that conversation was simply to revisit the idea that she could legitimately get external expert advice—he was not seeking to change her decision directly, although they did get into the merits of the legislation to some degree and he did unwisely try to convey Mr. Trudeau’s frustration. 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 the knowledge of Mr. Wernick 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. It is even more surprising with respect to the Ethics Commissioner. 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.
281. I find all of these tactics troubling.
Comment: It is more troubling that a trained lawyer adjudicating an ethics issue seems to give no weight to the arguments set out immediately above. The so-called tactics trouble him, but the ethical issues around making such a tape, and for him, the ethical issues around blithely accepting the potentially manipulated information from such a tape do not.
282. “The authority of the Prime Minister and his office was used to circumvent, undermine and ultimately to discredit the decision of the Director of Public Prosecutions as well as the authority of Ms. Wilson-Raybould as the Crown’s chief law officer.”
Comment: This statement seems to come out of nowhere, there is no specific substantiation of it and it is not supported by the evidence or the testimony of Mr. Butts and Mr. Wernick.
Moreover, for anyone who accepts the concept that this issue is not just about prosecutorial independence but also about the legitimately passed DPA legislation, and the fact that it implies a specific requirement for the prosecutor to compare the public interest benefits of a DPA versus criminal prosecution, the statement is highly questionable. That interpretation leads to a credible alternative explanation of all of the communication between the former AG’s office and other government departments, including the PMO. That explanation is that given brand new, untested legislation, the government wanted to thoroughly understand why it was not engaged, not only to be sure that the public interest comparison test had been properly evaluated but also to be able to understand any deficiencies so they could fix them in future.
In any case, this statement has no specific supporting evidence in other sections of the report so is in essence an unsupported judgement of the Ethics Commissioner. Coming as it does in the middle of his Analysis and Conclusions section, one could reasonably expect some reference to previously reported facts to support it. And finally, the statement makes no sense since the AG was reassigned in Cabinet her decision held, and in fact, it is still in place.
283-284 Mr. Trudeau argued he could not be held vicariously liable for acts of others. He cited Nigel Wright case, but that report has no evidence then Prime Minister Harper was involved or aware of the scheme. Here in contrast the evidence abundantly shows that Mr. Trudeau knowingly sought to influence Ms. Wilson-Raybould both directly and through the actions of his agents.
Comment: Here I could simply repeat the analysis of par. 282, which is directly relevant again. But there is another aspect to consider so I’ll give a two-part answer.
1. See analysis of 282
2. It is appropriate to re-emphasize the fact that it is not in any sense improper to discuss policy and public interest matters in government and to use logical argument to persuade others of the rightness of your position. In this case, one might think you need to take care to avoid the perception of directing a prosecutorial decision. That is correct with respect to the Shawcross doctrine as an expression of the broadly accepted idea that government colleagues should not try to direct a decision about criminal prosecutions—though they can discuss policy issues and the public interest as part of a decision-making process. However, that is not something the Ethics Commissioner was charged to investigate. He is charged with investigating his intuition that there has been an ethical violation in contravention of section 9 of the act. Therefore, it is necessary to tie any attempt to influence the AG to the third element in section 9; namely, to “improperly further another person’s private interests”. The Commissioner separated the issue into two stages—the first step asked did the PM try to influence. If the answer is no, the story ends. If the answer is yes, he still has to show the intent was to “improperly further another person’s private interests”. The Commissioner’s narrow view of the issue downplayed the fact that the new legislation meant there were policy issues related to the decision whether to prosecute. As well, that new policy meant there were public interest considerations that should have been weighed by the DPP in making her decision. Ignoring these two aspects of the situation enabled a conclusion that almost any communication on the issue was an attempt to influence the decision. On the contrary, such communications could credibly have been an attempt to clarify how the justice group was discharging the onus in the new legislation to compare the public interest implications of each alternative (prosecute or engage with a DPA). Given new untested legislation, understanding how it was interpreted by Justice could be important in deciding whether it needed to be amended in future. That would, in fact, be a responsibility others in government would have regardless of what the decision was. It is also possible that the complexity introduced by the new legislation was not properly captured in the evaluation and decision making process. In that case, with a willing prosecutor, either inter-departmental discussions or seeking external advice might have led to a better decision. To the extent that Mr. Dion draws disparaging conclusions at this stage he is clearly premature. In essence he has confused the issues because of his two stage approach. He still needs to establish that the intent was improper furthering of another’s interests. This is not nit-picking. His summary reads as follows:
“The evidence showed that SNC-Lavalin had significant financial interests in deferring prosecution. Those interests would likely have been furthered had Mr. Trudeau successfully influenced the Attorney General to intervene in the Director of Public Prosecutions’ decision. 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 [emphasis added]’.
The first two sentences of this decisive quote from the summary are vulnerable and I’ll deal with them in the next section. The bolded sentence is the report’s explanation of why the actions were “improper” and is highly misleading. He has confused his first test with the second test. If he was successful in showing that the PM tried to influence the Attorney General that attempt might have contravened the Shawcross doctrine and principles of prosecutorial independence (if the attempt involved “undue pressure” on the Attorney General). But that alone would not have contravened section 9 of the ethics act. In order to be “improper” under that act, the actions had to be intended to “improperly further” the interests of SNC-Lavalin. Mr. Dion, in his mind, concludes that the PM was intending to influence the prosecutorial decision. Then he claims that the “improper” aspect is that those actions were contrary to Shawcross and prosecutorial independence. But both of those conclusions apply to step 1 in his process.
The phrase “improperly further the interests of…” provides a separate and necessary test of the accused’s intent. In this case, Mr. Dion tries to imply that Mr. Trudeau orchestrated the passage of this act specifically in order to help SNC-Lavalin. And then he tried to influence the former AG to enable a DPA so that SNC-Lavalin could benefit. This is all hard for a “reasonable person” to swallow, given the history of discussion about the act with previous governments, its adoption in other major democracies, the broad support of the public process prior to developing the legislation, and its eventual implementation by Parliament.
Therefore, there is a “proper” way that SNC-Lavalin’s interests could be furthered; namely by the application of good public policy that would help any other company in the same situation in future. Given that Parliament had passed the enabling legislation to benefit any company caught in a similar situation, the intent was broader than just SNC-Lavalin. And as the Commissioner cites at Par. 288, the Conflict of Interest Act says “a private interest does not include an interest in a decision or matter, a) that is of general application…” Therefore, Mr. Dion’s summary justification of his conclusion is clearly incorrect.
We turn now to that section of the report that specifically discusses “improperly furthering private interests” to see whether or not the Commissioner has provided support for his conclusion that he simply forgot to include in the summary.
Improperly Furthering Private Interests (45)
Public vs. private interests (45)
287-292. At par. 287 Mr. Dion says, “Simply seeking to influence the decision of another person is insufficient for there to be a contravention of Section 9. The second step of my analysis, and indeed the crux of this examination, is to determine whether Mr. Trudeau, through his actions and those of his agents sought, sought to improperly further the interests of SNC-Lavalin”.
Comment: Strangely the last sentence should read, further the private interests of SNC-Lavalin.
288 The Act specifies that a private interest does not include an interest in a decision or matter a) that is of general application, …
Comment: This crucial clause conditions the interpretation of section 9, under which this investigation is proceeding. It is remarkable that he has separated the two by 42 paragraphs and does not provide any interpretive guidance. This clause means that a matter related to a public policy that applies to companies in general would not be a private interest (for purposes of this Act), but Mr. Dion does not mention that.
The report then discusses various views of public and private interests concluding at 292 that “it is on this sliding scale of interests that I must situate the matter at hand”.
The nature of SNC-Lavalin’s interests (46)
293-295 SNC-Lavalin had significant financial interests in deferring prosecution. An adverse verdict would cause economic turmoil and uncertainty. SNC had ongoing discussions with government as the remediation agreement regime (DPA regime) was established. Those interests would have been furthered if Mr. Trudeau successfully influenced the AG to direct a DPA be offered.
Comment: This is another crucial element in the Commissioner’s case, and he has constrained his report by downplaying the significance of the new legislation through his initial decision that he justified by saying he wouldn’t look at any aspect of the Attorney General’s decision not to use the new tools. Whether intended or not, that makes it easier for him to gloss over the issue of the requirements of the new legislation in assessing the public interest and essentially assume that the “interests” in question are private, as envisioned in the act, and that they were significant enough to warrant a judgement against the Prime Minister. A better, fairer, and more complete approach would have been for him to investigate specifically the nature of the so-called ‘private interests’ involved and even lay out the case relating to the public interest. He limits his discussion to noting the fact that SNC-Lavalin was involved in a lot of government projects and an unfavourable judicial outcome would “likely cause economic turmoil and uncertainty for SNC-Lavalin and its major shareholders”. Subsequently this evolves to “SNC-Lavalin had significant financial interest in deferring prosecution”.
Let me suggest a more complete way of considering that question. First, I would note that there is a significant range of uncertainty in all the potential outcomes. That was not acknowledged by Mr. Dion. He simply implied a very significant advantage for SNC-Lavalin from having a DPA. I agree to some extent, but a major element of that advantage comes from a corporate desire to avoid a ‘criminal’ label and the very uncertain aspect of how that label might affect their international business. It could have no effect or effects that range to a very high level, depending on how foreign governments view the significance of the transgression. In any case, set out below is a summary of obligations of SNC-Lavalin under a DPA (according to Dentons multinational law firm)
• An obligation to forfeit any benefit or proceeds derived from the wrongdoing (or to otherwise deal with such benefits/proceeds as may be directed by the Prosecutor).
This could presumably be a very large number depending on the specific circumstances.
• Payment of a penalty to the Government, as well as an additional victim surcharge of up to 30% of such penalty (except in CFPOA cases, as the CFPOA makes no provision for victim surcharges to be applied);
The penalty would be negotiated by the Prosecutor who could certainly seek a very stiff fine. The company would likely accept a fine even higher than would likely be levied by a court. There would be some limit since the deal would have to be approved by a court which is intended to be proportional in its judgment. The highest penalty to date has been a DPA with Siemans in the US and Germany for $1.6 billion.
• Payment of “reparations” to any “victims” (as defined), or if no such payments are proposed, the reasons why they are not considered appropriate;
Here is Denton’s explanation of this unique Canadian element of DPAs
“However, one striking feature of the Canadian regime, as set out in the proposed legislation, is the apparent level of accommodation for “victims” (as defined) of the impugned conduct. While DPA regimes in several other jurisdictions make provision for the possibility of victim compensation (including the UK regime), what is notable under the proposed Canadian regime is the mandatory nature of the obligations to fully consider victims’ perspectives and their compensation entitlements. Specifically, under the proposed legislation, “victims” (as defined) must generally be notified prior to a Remediation Agreement being presented to a court for approval, and the court is required to consider any victim impact statement presented in connection with the approval hearing, as well as to consider whether appropriate provision has been made for “reparations” to victims within the Remediation Agreement. In this regard, it is worth noting that the definition of “victim” under the Criminal Code is very broad, and includes any individual or organization “against whom an offence has been committed…and has suffered or is alleged to have suffered…property damage or economic loss”. In domestic or foreign bribery cases, identifying the true victims of, and calculating the scale of the damage caused by, such corruption is often far from straightforward. Indeed, the potential categories of “victim” in the context of the offences covered by Remediation Agreements could conceivably include (among others) foreign governments, local community members, state-owned entities (domestic or foreign) and even commercial competitors. As such, it is at least conceivable that a distinctive feature of the “made-in-Canada” DPA regime may prove to be an unparalleled level of participation by parties claiming status as victims of a given case of corruption”.
This is another source of significant uncertainty that means a DPA could be more onerous than a likely court judgment from a financial point of view. Certainly the sum of forfeiting proceeds from the wrongdoing, a penalty set by the prosecutor, and any reparations that might be payable mean that the financial cost of a DPA might be higher. 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 earlier found a case from the UK regarding Rolls Royce that he used because it reported a decision to deny a negotiated approach—without mentioning any of the significant differences from the current case. He did not cite the Siemens case, which clearly raises questions about his assumption that SNC-Lavalin would benefit financially from a DPA. As noted before they might—but there’s a large range of uncertainty and they might not. They might be willing to take a financial hit to avoid the criminal label. Mr. Dion did not even consider any of this.
Meaning of the Word Improper (46)
296-301. Every exercise of official power potentially furthers a private interest. At 296, he says here the only interest is with ”any other person whose interests were furthered improperly”. The report then inserts some previous uses of the word improper leading to his interpretation at 301 that “an impropriety under the act occurs when a public office holder exercises an official power, duty or function that goes against the public interest, either by acting outside the scope of his or her statutory authority, or contrary to a rule, a convention, or an established process”.
Comment: The first problem with this definition comes at 296, “The Act concerns itself only with the furthering of three specific holders of private interests… (3) “any other person whose interests were furthered improperly”. Again, for whatever reason, he deviates from the wording in the act that says “ private interests”. Then several paragraphs later at 301 he establishes his own interpretation of improperly that is much more general than that in the Act. “an impropriety under the act occurs when a public office holder exercises an official power, duty or function that goes against the public interest, either by acting outside the scope of his or her statutory authority, or contrary to a rule, a convention, or an established process”. On the contrary, I contend that the Act uses the word ‘improperly’ conditioned by the limitations on the meaning of ‘private interests’ because there is a clearly proper way that private interests can be furthered. That is when the use of public policy serves to further the private interest of any entity affected by the public policy. This interpretation is supported by the fact that the Act does not allow DPAs to be considered for individual transgressions—only organizations are covered under this Act.
Mr. Dion’s approach enabled what I contend is a fundamental confusion in the Commissioner’s argument. He emphasizes throughout his view that the influence on the former AG was improper and in his summary he even cites this as a justification for his conclusion that the intent was to “improperly further…SNC-Lavalin’s interests..”. More correctly, he may, if he is correct, apply this definition to efforts to influence the decision. But to meet the second test, he has to at least acknowledge the possibility that the intent of all communications was to understand and further the broad public policy as established in the legislation. Then he may argue that that was not the case if he is able to. Simply ignoring the possibility that the testimony of Mr. Butts and Mr. Wernick to the effect that their primary objective was to understand the decision and at most ensure it met the requirements of the new act is both unfair and an error in reasoning.
National Economic Interests (47)
302-319 This section begins rather strangely “Despite SNC-Lavalin’s considerable financial interest in the matter, Mr. Trudeau claimed that the threat of job losses was of paramount concern in his discussion with Ms. Wilson-Raybould and that, consequently, his actions were done in the public interest”. He then notes the decision to prosecute must consider 1) reasonable prospect of conviction 2) the public interest. Discussing the latter he concludes prosecutors “must make decisions without fear of political interference or improper or undue influence”. He then goes on to describe some events after the decision not to negotiate was made revisiting the September 17 2018 meeting wherein the possible adverse impacts to jobs and economy were discussed. Then the report addresses the “national economic interest” and when it is relevant, and Mr. Trudeau’s view that jobs, stakeholders and pensions were relevant considerations. It then goes on to discuss the OECD’s possible interpretation, including the view of a former Secretary-General of the OECD that the term was specifically related to exports. He then cites a UK case wherein Rolls Royce was denied a DPA. All of this leaves him uncertain and at par. 319, he concludes with a significant 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”.
Comment: 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 prosecutor’s decision is that the clause that said she couldn’t take into account “national economic interests” forced 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 seek that understanding. 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 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, the decision would still be hers to make but a valuable level of understanding would be reached that would facilitate future actions with respect to the legislation.
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.
Comment: This is a curious statement since all public policy is broadly based yet can always be related to individual interests. Those individual interests, when aggregated, justify the investment in the wide-ranging policy. More importantly, 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 was fully recognized in the wording of the Act. The report acknowledges this at Par. 288 which reads as follows. “The Act specifies that a private interest does not include an interest in a decision or matter (a) that is of general application…” In other words, supporting broad public policy does not, in and of itself, contravene the conflict of interest Act. A likely explanation as to why this is in the Act is to ensure that advocating legitimate public policy cannot be interpreted as intent to “improperly further another person’s private interests…” Mr. Dion has facilitated his effort to ignore that fact by downplaying the role of the legislation establishing remediation agreements or DPAs.
The remediation regime makes it clear that only the prosecutor must weigh (or exclude) these interests”.
Comment: This is mildly misleading. The Act introducing DPAs says nothing new about the prosecutor. The final decision is for the prosecutor, but the weighing of interests can, and with respect to new legislation, likely should, include others with relevant knowledge as appropriate.
In summary, the Commissioner’s conclusion that the Prime Minister sought to influence the decision of the former Attorney General “to improperly further another person’s private interests” is vulnerable on two fronts. First, he was able to reach his conclusion 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 incorporated in the decision to prosecute. He therefore interpreted 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 about the Prime Minister. 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 to achieve some 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 further the private interests of another person – in this case SNC-Lavalin.
Therefore it is more significant that his conclusion depends on his interpretation that suggests enhancing the public interest is linked to SNC-Lavalin’s private interest. While that is possible the Conflict of Interest Act specifically excludes it as a contravention by stipulating that a private interest does not include an interest in a decision or matter that is of general application (among other things) .
It is also relevant here to reemphasize that the Executive Summary of the report also got this critical issue wrong. In that summary, Mr. Dion concludes that SNC-Lavalin would have benefitted 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. This is a surprising misinterpretation of Section 9 above.
There are two flaws in this reasoning. The first is that he meets test 1 (in his mind) by citing various actions that he concludes demonstrate an attempt to influence the decision. But the second (and primary) test is whether the intent of that was to “improperly further another person’s private interests”. He answers yes, and explains it is because the actions that sought to further those interests were contrary to the Shawcross doctrine and prosecutorial independence. However, Shawcross and prosecutorial independence relate only to the first test, “seeking to influence the decision of another person”. They are not related to or support an assertion that the intent was “to improperly further another person’s private interests”.
The second flaw is that the second test must show that the action was intended to “improperly further another person’s private interests”. As discussed above, this latter contention fails because the Conflict of Interest Act says a private interest does not include an interest in a matter of general application. On the other hand, properly furthering private interests would happen whenever a generally applicable public policy had been enacted to improve laws that affect many organizations. When such laws were applied in a specific case they would inevitably further the private interests of one among the many (which is why the Act precludes that possible interpretation as being a contravention). So communications between the former AG and her colleagues hoping to clarify how the public policy and public interest provisions in the DPA were evaluated and incorporated in the decision, would not contravene the Act. This may seem somewhat complicated to the reader—it should not have been complicated for the Ethics Commissioner.
Partisan political interests put to the Attorney General
Comment: I am compelled to note a remarkable aspect of the report that was apparent to me, as a former member of a regulatory board familiar with decision reports. That is the unexpected structure of the Analysis and Conclusion section of the report, which begins with six pages devoted to the issue of others in government trying to influence the Attorney General, follows that with 6 pages devoted to a discussion of improperly furthering SNC-Lavalin’s private interests, and then concludes with another six pages that return to the question of influencing the Attorney General through discussion of the Shawcross doctrine and other related aspects of prosecutorial independence. So two thirds of the report are focussed on influencing the decision, and one third on attempting to establish the intent was to further the private interests of SNC-Lavalin. Whether intended or not, this approach allows the Commissioner to finish with a stronger argument related to prosecutorial independence, although that was not an issue the government representatives were disputing nor the main issue for the Commissioner. The remarkable part of this approach was the relatively few pages focussed on establishing the intent was to further the private interests of SNC-Lavalin. As well, those few pages were flawed by inconsistent arguments, as was the initial attempt to imply a private interest rationale in the Executive Summary (as discussed above). Nonetheless, I will proceed to discuss the remaining sections for the sake of completeness, even though there will likely be a fair bit of repetition involved.
320. While SNC-Lavalin would have benefitted from intervention, the governing party also considered partisan interests of not achieving a DPA. Any partisan political interest put to Ms. Wilson-Raybould was improper.
Comment: As discussed in 293-295 above, whether SNC-Lavalin would have realized a net financial benefit from a DPA as compared to prosecution is not nearly as obvious as Mr. Dion assumes. That earlier discussion concludes that the sum of forfeiting proceeds from the wrongdoing, a penalty set by the prosecutor, and any reparations to victims that might be payable mean that the financial cost of a DPA is highly uncertain and might well be as high or higher than would emerge from a court case, particularly given the steps the company has already taken. As well, the other requirements of a DPA are very expensive. Nonetheless, the benefit from avoiding prosecution would be valuable, and would allow the company to avoid the uncertainty of adverse results from having a criminal conviction. The fact that Mr. Dion did not explore the legislation to the degree necessary to at least outline the uncertainties is surprising and disappointing. The reference to partisan political interests is not elaborated until later (par 330) and I will address it below. I will note here that Mr. Dion’s approach of saying things like, “the evidence showed” and the desire to “find a solution” seem to relate to the testimony of the former AG, since in several instances the testimony of Wernick and Butts disagreed.
DPAs can be very costly for the company—Siemen’s paid about $1.6 billion U.S. in 2008 in fines and disgorged profits to the United States and Germany over charges of bribing public officials. They also had to restructure internally and undergo four years of monitoring to ensure they would not be charged. Canada’s legislation also requires consideration of victims which might require reparations payments as well. But the avoidance of a criminal conviction enabled minimal disruption to their business operations and therefore to innocent parties.
321-334. The report then goes through a discussion of why the prosecutor must decide beginning with a discussion of the Shawcross doctrine which says the AG has a duty to acquaint himself with all relevant facts. To do that he may consult with colleagues and would in some cases be a fool if he did not. But colleagues are to provide relevant information, not tell him what to decide. Political interests have no relevance here. in Supreme Court decision in Krieger v. Alberta Law Society, 2002 SCC 65,it is noted “the quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider various factors involved in making a decision to prosecute”. At 325 Mr. Dion acknowledges there was no direction so no” actual political interference” but that does not assist Mr. Trudeau. “The repeated interventions by the Prime minister , his most senior ministerial and public officials to have the Attorney General find a solution, even in the face of her refusal to intervene in the matter, lead me to conclude that these actions were tantamount to political direction.” This is followed by Mr. Dion’s view that he does not agree that the Shawcross doctrine allows for debate among cabinet colleagues. They may consult but that should be led by the AG and an AG would have difficulty dissociating genuine public interests from partisan interests when those considerations are advanced by cabinet colleagues and their staff. In addition to SNC’s private financial interests private political interests were raised four times.
Comment: The general discussion about the independence of public prosecutor’s to decide on the disposition of criminal cases is not controversial. The testimony of the Prime Minister and that of Mr. Butts and Mr. Wernick acknowledged it. There is still room for discussion of several points and I begin by reiterating that this discussion again does not acknowledge the significance of the new legislation. This is a major deficiency of Mr. Dion’s analysis where the new legislation is addressed only occasionally and superficially. And again, even if this discussion is judged as supporting Mr. Dion’s contention, it is relevant only to the issue of influencing the AG and does not contribute to the main requirement of the Act—showing intent to further the interests of SNC-Lavalin.
The new legislation is significant because it provides an alternative to prosecution that requires a more extensive assessment and comparison of the public interest in each of the alternatives. The AG’s duty to acquaint herself with all relevant facts is more complex when considering these new untested legislated choices than for most criminal prosecutions. That makes it more important that she consult with colleagues—in some cases she would be a fool if she did not. So much of the communication among colleagues would be appropriate. Mr. Dion cites a Supreme Court decision that says, the quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider various factors involved in making a decision to prosecute. But in the context of new untested legislation the comparison of the public interest under two separate options might be complex and benefit from the knowledge and experience of other colleagues or other specialists, either currently within government or external advisors with relevant knowledge. The testimony of the former AG’s colleagues was consistent that an objective to canvas advice was uppermost in their minds. That is not the same thing as trying to influence the decision. If that activity had resulted in support for her decision it would have gone a long way to satisfy colleagues from other departments and the Prime Minister.
Mr. Dion acknowledges there was no direction so no” actual political interference” but that does not assist Mr. Trudeau. “The repeated interventions by the Prime minister, his most senior ministerial and public officials to have the Attorney General find a solution, even in the face of her refusal to intervene in the matter, lead me to conclude that these actions were tantamount to political direction.”
With respect, this is very hard to accept—especially for anyone who listened to the very credible testimony of Mr. Butts and the Former AG’s Deputy, Ms. Drouin, who had also recommended seeking external advice. As well, it simply dismisses the testimony of both government witnesses and the Prime Minister. That is easier to do when one ignores the other highly credible possibility—the desire to ensure the new legislation was properly handled and learn what might be needed to make it more relevant in future cases.
This is followed by Mr. Dion’s view that he does not agree that the Shawcross doctrine allows for debate among cabinet colleagues. They may consult but that should be led by the AG and an AG would have difficulty dissociating genuine public interests from partisan interests when those considerations are advanced by cabinet colleagues and their staff.
The word debate, as opposed to discuss, makes this marginally easier for Mr. Dion to question However, neither expression strongly supports the Commissioner’s interpretation. The point is that engagement of issues among colleagues is envisioned under Shawcross, as long as the colleagues don’t try to direct the decision. This has to be more acceptable in this specific circumstance when new legislation is intimately involved with the decision. And frankly, the suggestion that an Attorney General could not dissociate genuine public interests from partisan interests—regardless of who brought them forward, is absurd.
Mr. Dion reports at 330-334 four instances over several conversations where politically related statements such as the ‘Quebec election’ and the ‘location of the company in Mr. Trudeau’s riding’ and ‘even with the best policy in the world they need to get re-elected’, and another reference to the ‘Quebec election’. Mr. Dion assigns significance to the four comments (some by staffers) over the course of extended conversations that obviously had to be focussed on the policy and public interest issues and/or whether outside advice would be warranted in this new untested environment. He then says “It is improper, for the purposes of the Act, to use political interests to attempt to influence an Attorney General in the context of an ongoing criminal prosecution since it runs counter to the principle of prosecutorial independence and the rule of law”[emphasis added].
This continues his misinterpretation of the Act. Again he chooses to tie the word improper to the act of influencing a decision whereas the word improper should be tied to the intent of “furthering the public interests of another person”—in this case SNC-Lavalin. Otherwise Section 9 is not contravened.
And finally, once again, this entire discussion relates back to Mr. Dion’s belief that all of these conversations were focussed on influencing the decision. They do not support a contention that the intent was to further the private interests of SNC-Lavalin. By avoiding the issues raised by the existence of the new legislation, and the reasonable responsibilities imposed on both politicians and bureaucrats by that legislation he is able to provide a superficial justification of what is otherwise an insupportable decision.
Discussions during ongoing legal proceedings (54)
335. It is noted that the SNC-Lavalin notice of application for judicial review should have put staff on notice to cease communications with SNC-Lavalin.
336-338. Here the questions asked by staff to other staff as to whether the AG could seek to expedite the hearings are deemed as interfering, and related briefings for Mr. Trudeau to not meet with SNC-Lavalin’s CEO should have, in the mind of Mr. Dion, resulted in instructions for the staff to “stand down”.
339-340. Mr. Dion notes that discussions between the PMO and SNC-Lavalin’s legal counsel continued.
Comment: He does not emphasize these relatively minor communication issues as contributing to any contravention, just notes things he doesn’t approve of.
Prosecutorial Independence and the Role of the Attorney General (55)
341. The unique role as both Attorney General and Minister of Justice requires independence from Cabinet when exercising prosecutorial discretion.
342. In Mr. Dion’s view Mr. Trudeau misunderstood this important distinction. He says Trudeau and others viewed the AG in her capacity as AG as a member of Cabinet on equal footing. Then he describes one witness’s clear misunderstanding.
343. Mr. Trudeau agreed it would be clearly improper to intervene directly with the Director of Public Prosecutions. But he saw no harm in engaging with the AG while the matter was seized by Federal Court. He makes no comment on the impropriety of that but proceeds to describe historical cases of misunderstanding at high levels of government from 344-350. There ends the analysis and he proceeds to his conclusion.
Comment: There is no definitive basis for concluding Mr. Trudeau did not understand the distinction. But this discussion paves the way for his unfavourable conclusion.
351. I find that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence the decision on whether she should overrule the Director of Public Prosecutions’ decision not to invite SNC-Lavalin to enter into negotiations towards a remediation agreement.
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.
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].
352. For these reasons, I find that Mr. Trudeau contravened section 9 of the Act.
Comment: This is the final instance of claiming that the Act was contravened for reasons that are not part of section 9 in the Conflict of Interest Act. The Act requires that any attempt to influence a decision be intended “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.
Mr. Dion did not assess the remedial negotiation alternative 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. It is true that the DPA approach would avoid the label of criminal conviction and that might be judged quite important from the company’s point of view. Mr. Dion simply ignored any consideration of these possibilities.
More importantly, as I noted earlier,
“The Act specifies that a private interest does not include an interest in a decision or matter (a) that is of general application…”
In other words, supporting broad public policy does not, in and of itself, contravene the conflict of interest Act. A likely explanation as to why this is in the Act is to ensure that advocating legitimate public policy cannot be interpreted as intended to “improperly further another person’s private interests…” Mr. Dion has facilitated his effort to ignore that fact by downplaying the role of the legislation establishing remediation agreements or DPAs. But that legislation is critical to this entire affair, and ignoring it reflects either some inherent bias or careless analysis. In any case it reduces the credibility of his analysis of step 1. More importantly, he did not establish that step 2 confirms that there was a contravention of the Act.
Some general Impressions
I have an uneasy feeling that some of these issues stem from an analysis done too quickly resulting in an approach and language that, in part, bolsters the argument of the report. That suspicion emerged over time as small and large inconsistencies accumulated during my review. I set some of these out below.
• The title of the report, Trudeau II strikes me as inappropriate and intended to be suggestive about a perceived tendency. The previous incident is substantially different and should not have been alluded to. It may suggest some degree of inherent bias from the outset.
• Mr. Dion’s description of the legislation that established remediation agreements (DPAs) in his Analysis and Conclusion is clearly pejorative, appears to suggest that the legislation is somehow tainted by inadequate review, etc. and neglects to include any positive elements, even those that were included in his Findings of Fact section. He mentions the public review but not that it was strongly positive in support of the legislation, among other things. The fact is that DPAs stem from good legislation that is clearly beneficial to the public interest.
• He notes other countries have similar legislation and finds a UK example that he thinks helps his case, but ignores a significant case (Siemens vs US and Germany) that would have raised questions as to whether a DPA would be financially beneficial to SNC-Lavalin.
• He includes behaviour of SNC-Lavalin as having been intended to influence the decision in a manner that may suggest to some that the government was complicit. Of course, SNC-Lavalin was pursuing their own interests. Lumping that in as suggestive of the government’s intent is unwarranted.
• Similarly he suggests that because SNC-Lavalin had pushed for this legislation that taints it. But that neglects the practical fact, known to many in the regulatory community, that many good changes happen because those with a special interest and knowledge recognize the need and bring it forward. That happens in regulatory matters in every jurisdiction and is not improper when properly reviewed. The test is that after review and broad consideration changes are approved by Parliament.
• Mr. Dion’s neglect of the essential elements of the new legislation is unfortunate, as that legislation is at the core of the entire matter.
• Mr. Dion’s persistent misuse of language that is emphasized in the Act is hard to understand.
• Mr. Dion’s gratuitous comments such as, there was no specific direction but “this does not help Mr. Trudeau” are inappropriate at best.
• And of course, the main argument in the text—that he sidesteps the true meaning and intent of the legislation is very hard to understand.