This article is an excerpt from the 2020 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its August 2019 report entitled Trudeau II Report, Canada’s Conflict of Interest and Ethics Commissioner determined that Prime Minister Justin Trudeau breached the Conflict of Interest Act by attempting to influence the criminal prosecution of SNC-Lavalin, a large Canadian engineering company charged in 2015 under the Corruption of Foreign Public Officials Act for allegedly bribing Libyan government officials.
SNC-Lavalin faced significant consequences if convicted since, as the reported stated, “a bribery and fraud conviction against SNC-Lavalin would bar the company from bidding on any federal contracts for 10 years and would allow federal authorities to cancel the company’s current contracts.” As the report detailed, SNC-Lavalin successfully lobbied the federal government to amend the Criminal Code to permit deferred prosecution agreements that permit companies to avoid criminal prosecutions. However, notwithstanding the amendment, Canada’s independent Director of Public Prosecutions decided to proceed with the criminal prosecution instead of offering SNC-Lavalin a deferred prosecution agreement. SNC-Lavalin brought a judicial review challenge to Federal Court, while also lobbying the Prime Minister and other senior government officials, to try to reverse the independent prosecutor’s decision. While the Prime Minister was ultimately unsuccessful in his attempts to have Attorney General Jody Wilson-Reybould intervene in favour of SNC-Lavalin, the Ethics Commissioner concluded that the Prime Minister’s multiple attempts to influence the criminal prosecution breached the Conflict of Interest Act.
As the Ethics Commissioner summarized, the Prime Minister made multiple attempts to influence the Attorney General into revisiting the independent prosecutor’s decision to proceed with the criminal prosecution of SNC-Lavalin:
On September 4, 2018, the Director of Public Prosecutions informed the office of the Minister of Justice and Attorney General that she would not invite SNC-Lavalin to negotiate a possible remediation agreement. The Prime Minister’s Office and the Minister of Finance’s office were then informed of this decision by Ms. Wilson-Raybould’s office. Mr. Trudeau then directed his staff to find a solution that would safeguard SNC-Lavalin’s business interests in Canada.
The first step in my analysis was to determine whether Mr. Trudeau sought to influence the decision of the Attorney General as to whether she should intervene in a criminal prosecution involving SNC-Lavalin following the decision of the Director of Public Prosecutions. The evidence showed there were many ways in which Mr. Trudeau, either directly or through the actions of those under his direction, sought to influence the Attorney General.
Having reviewed several possible means of intervening in the matter, Ms. Wilson-Raybould made it known in September that she would not intervene in the Director of Public Prosecutions’ decision. Mr. Trudeau met with Ms. Wilson-Raybould on September 17, 2018, at which time she reiterated her decision to not intervene in the Director of Public Prosecutions’ decision to not invite SNC-Lavalin to enter into a remediation agreement. She also expressed to Mr. Trudeau her concern of inappropriate attempts to interfere politically with the Attorney General in a criminal matter. Following this meeting, senior officials under the direction of Mr. Trudeau continued to engage both with SNC-Lavalin’s legal counsel and, separately, with Ms. Wilson-Raybould and her ministerial staff to influence her decision, even after SNC-Lavalin had filed an application for a judicial review of the Director of Public Prosecutions’ decision. These attempts also included encouraging her to re-examine the possibility of obtaining external advice from “someone like” a former Chief Justice of the Supreme Court. Unbeknownst to the Attorney General at that time, legal opinions from two former Supreme Court justices, retained by SNC-Lavalin, had been reviewed by the Prime Minister’s Office and other ministerial offices. Meanwhile, both SNC-Lavalin and the Prime Minister’s Office had approached the former Chief Justice of the Supreme Court to participate in the matter. The final attempt to influence Ms. Wilson-Raybould occurred during a conversation with the former Clerk of the Privy Council on December 19, 2018, as an appeal, on behalf of Mr. Trudeau, to impress upon her that a solution was needed to prevent the economic consequences of SNC-Lavalin not entering into negotiations for a remediation agreement.
The Ethics Commissioner determined that these attempts to influence the Attorney General were a breach of the Conflict of Interest Act since they were made in an effort to improperly advance the interest of SNC-Lavalin in contravention of the principles of prosecutorial independence:
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 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.
For these reasons, I found that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence, both directly and indirectly, her 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.
Therefore, I find that Mr. Trudeau contravened section 9 of the Act.
By way of further background, as the Ethics Commissioner report noted, after federal prosecutors laid charges against SNC-Lavalin in February 2015 under the Corruption of Foreign Public Officials Act, SNC-Lavalin successfully lobbied the federal government to amend the Criminal Code so that prosecutors could offer deferred prosecution agreements so that the company could avoid criminal prosecution:
SNC-Lavalin was charged in February 2015 with criminal offences that allegedly took place between 2001 and 2011. Under a remediation agreement, also called a deferred prosecution agreement, the criminal charges could be deferred or suspended. At the time, Canada did not have a regime to allow remediation agreements. In early 2016, SNC-Lavalin began lobbying officials with the current government to adopt a remediation agreement regime. Following public consultations, amendments to the Criminal Code allowing for such a regime were adopted as part of the 2018 federal budget.
As the Ethics Commissioner’s report detailed, SNC-Lavalin’s lobbying efforts included multiple meetings with senior government officials, during which it advocated for a legislative amendment similar to the deferred prosecution regimes that were previously implemented in the United Kingdom, France, and Australia:
Mr. Trudeau and His Senior Advisor Meet with SNC-Lavalin Representatives in Early 2016
The federal Registry of Lobbyists showed that the first contacts related to the issue of justice and law enforcement occurred in early February 2016, when SNC-Lavalin began lobbying several federal officials, including ministerial staff in the Prime Minister’s Office, the offices of the ministers of Finance, International Trade, and Innovation, Science and Economic Development, as well as officials in the Privy Council Office and at Public Services and Procurement Canada, for the adoption of a remediation agreement regime.
Also referred to as a deferred prosecution agreement, a remediation agreement allows prosecutors to negotiate with an organization accused of committing certain criminal offences with a view to deferring or suspending criminal charges instead of proceeding with a trial. Similar regimes are in place in France, Australia and the United Kingdom.
As the Ethics Commissioner stated, the Prime Minister and his staff were sympathetic to the adoption of a deferred prosecution regime in order to avoid the adverse impact of a criminal conviction of SNC-Lavalin:
Mr. Trudeau testified that he first heard of SNC-Lavalin’s desire for the Government of Canada to adopt a remediation agreement regime when he and his Senior Advisor, Mr. Mathieu Bouchard, met with the company’s CEO and other senior representatives in early 2016.
According to Mr. Trudeau, during this meeting they discussed the company’s legal issues, the reform efforts that SNC-Lavalin had undertaken and the impacts a criminal conviction would have on the company. Mr. Trudeau believed SNC-Lavalin also mentioned to him what other countries were doing with remediation agreements.
Mr. Trudeau testified that he believed that if the company had indeed reformed itself, a criminal conviction would be an unfortunate loss for employees, as SNC-Lavalin is a significant employer across Canada, and that it would also be an unfortunate loss in terms of infrastructure projects in Canada.
According to documentation received from the Privy Council Office, SNC-Lavalin had several contracts with the federal government, some of which would span several decades. These contracts included the Samuel De Champlain Bridge project, the Gordie Howe International Bridge project, Montreal’s light rail project and numerous other federal undertakings worth hundreds of millions of dollars. In his written submission, Mr. Trudeau stated that he knew in general terms that SNC-Lavalin was a significant contractor with Canadian governments and that he was aware of some of the major government contracts in question, such as the Samuel De Champlain Bridge project and the light rail project in Montreal.
Mr. Trudeau testified that, in early 2016, he had limited knowledge of remediation agreements. He instructed Mr. Bouchard to look into the concept and see what existed in other countries. He also said that as part of his instructions, he told Mr. Bouchard to pay attention to the SNC-Lavalin matter and identify existing levers that could lead to a positive outcome for everyone.
As the Ethics Commissioner summarized, the federal government initiated inter-departmental meetings and public consultations prior to implementing the deferred prosecution regime:
2016-2017: Departmental Meetings and Public Consultations on a Remediation Agreement Regime
Mr. Bouchard testified that beginning in 2016, he started seeking information on remediation agreements from other ministerial and departmental staff. He also testified that the Prime Minister’s Office asked the Privy Council Office to organize internal meetings with ministerial staff and departmental officials from the Department of Finance Canada, Public Services and Procurement Canada, the Department of Justice Canada, Innovation, Science and Economic Development Canada, and Global Affairs Canada (International Trade Diversification), in order to discuss the concept of a regime as well as SNC-Lavalin’s legal issues.
According to Mr. Bouchard, these meetings resulted in a consensus from participants that the federal government would run a public consultation on the possibility of adopting a remediation agreement regime in Canada.
Led by Public Services and Procurement Canada with the support of the Department of Justice Canada, public consultations on the Government of Canada’s tools dealing with corporate wrongdoing were held from September 25 to November 17, 2017. Discussion papers were accepted until December 8, 2017. As part of the consultations, possible enhancements to the government’s Integrity Regime and the adoption of a remediation agreement regime in Canada were also discussed.
To promote the deferred prosecution agreement amendment, SNC-Lavalin also met with Minister of Finance Bill Morneau and his staff to emphasize the importance of the amendment to preserving the company’s Canadian operations:
The Minister of Finance’s Office’s Discussions with SNC-Lavalin
Following the consultations, documents submitted by SNC-Lavalin showed that the company’s representatives continued to advocate for the adoption of a remediation agreement regime. The Minister of Finance, the Honourable Bill Morneau, met with Mr. Neil Bruce, CEO of SNC-Lavalin, on January 23, 2018, while in Davos, Switzerland, during the World Economic Forum Annual Meeting. According to SNC-Lavalin, during their meeting, which had been requested by SNC-Lavalin representatives, Mr. Bruce updated Mr. Morneau and his Director of Policy, Mr. Justin To, on the company’s challenges, opportunities and strategies for growth.
In his written submission, Mr. To recalled a conversation regarding Mr. Morneau’s meeting with Mr. Bruce. According to Mr. To, Mr. Morneau generally noted SNC-Lavalin’s view that the government should proceed with the implementation of a remediation agreement regime, as consultations on the issue were completed in 2017. Mr. Bruce described potential negative economic impacts if SNC-Lavalin were unable to reach a remediation agreement. Mr. Morneau testified that while he did not recall what was discussed, he believes that the company’s desire for a remediation agreement regime would have been raised with him at this time.
On February 2, 2018, Mr. To met with Mr. Bruce and other SNC-Lavalin representatives in Ottawa as a follow-up to their meeting in Davos, Switzerland. The company presented Mr. To with a confidential discussion document outlining reasons in support of a remediation agreement regime and the company’s request for timely implementation of a regime via the federal budget. According to the document, this strategy would increase the likelihood of a settlement of the company’s pending criminal charges, of the company maintaining its head office in Canada for the foreseeable future and of an increase in its workforce.
Mr. To stated that he did not share the document with the Prime Minister’s Office nor did he discuss his February 2, 2018 meeting with them.
As the report summarized, the Criminal Code amendment was ultimately introduced through a Minister of Finance budget bill. The Attorney General, who felt that the amendment had been inappropriately rushed into law to assist SNC-Lavalin, refused to speak to the introduction of the Criminal Code amendment either in public or before parliamentary committees:
Inclusion of the Provisions Creating the Regime in the Budget Implementation Act, 2018, No. 1
On February 22, 2018, the Government of Canada published the results of the public consultations, which stated that “[t]he majority of participants supported having a Canadian DPA [deferred prosecution agreement] regime, as they were of the view that DPAs could be a useful additional too for prosecutors to use at their discretion in appropriate circumstances to address corporate criminal wrongdoing.”
Five days later, on February 27, 2018, amendments to the Criminal Code allowing remediation agreements were announced in Budget 2018. They were subsequently inserted into an omnibus budget bill (C-74). Several witnesses interviewed were of the view that non-fiscal items are typically included in a federal budget bill to expedite passage through Parliament.
Mr. Trudeau and other witnesses testified that items included in a budget bill stem from discussions between the Prime Minister and the Minister of Finance, and discussions between the Prime Minister’s Office and the Minister of Finance’s office. In this case, given that amendments to the Criminal Code would be included in the budget bill, Mr. Trudeau stated that Ms. Wilson-Raybould likely would have been involved in the discussions as well.
According to Mr. Trudeau, SNC-Lavalin was a timely example of a company with a significant number of employees in Canada, that had engaged in alleged wrongdoing under previous management, and that was now trying to reform. A remediation agreement regime offered a way through for SNC-Lavalin, as had been the case for other large engineering firms in Europe which had benefited from this type of regime.
Ms. Wilson-Raybould testified that it was her understanding that the need to create a regime was primarily because of SNC-Lavalin. Given the importance of the amendments to the Criminal Code, she expressed concern that the process, including the public consultations and the amendments, had been rushed in order to include them in the 2018 federal budget bill. As a result, she made the decision not to lead the memorandum to Cabinet regarding the amendments to the Criminal Code and not to speak publicly or before parliamentary committees about the regime.
On March 27, 2018, the government tabled budget implementation Bill C-74, which included amendments to the Criminal Code for the establishment of a remediation agreement regime.
In fact, as the Ethics Commissioner report observed, the deferred prosecution agreement amendment was quickly passed into law without any parliamentary committee scrutiny or discussion:
Our Office has reviewed hundreds of pages of documentary evidence, which detail dozens of email exchanges, text messages, telephone conversations and in-person meetings involving SNC-Lavalin and their representatives, ministers and their staff and other government officials.
A public consultation was struck in the fall of 2017 to examine whether remediation agreements were a viable alternative to prosecution. On February 2, 2018, before the results of the public consultation were announced, SNC-Lavalin presented to staff in the Minister of Finance’s office the possibility of including the remediation agreement regime in the 2018 budget implementation bill as a means to expedite the process.
Despite Ms. Wilson-Raybould’s concerns expressed to her Cabinet colleagues that the remediation agreement regime was being rushed and despite her unwillingness to lead or to publicly endorse the initiative, measures to amend the Criminal Code were announced in Budget 2018 on February 27, five days after the results of the public consultation were published. The legislative amendments were drafted as part of Bill C-74 and presented to the House of Commons for first reading exactly one month later, on March 27. The amendments to the Criminal Code received Royal Assent, without scrutiny from the House of Commons Standing Committee on Justice and Human Rights, on June 21, 2018.
This was the political and legislative context in which the remediation agreement regime was adopted in Canada.
Once the deferred prosecution agreement regime came into effect, Minister of Finance staff met with SNC-Lavalin and then contacted the Attorney General’s office to seek a status update on the prosecution. However, as the Ethics Commissioner noted, Minister of Finance staff were warned by the Attorney General’s office that their attempts to discuss the matter could be perceived as interfering with a criminal prosecution:
The Minister of Finance’s Office Seeks an Update on SNC-Lavalin
In mid-August 2018, Mr. Ben Chin, Chief of Staff to the Minister of Finance, contacted Ms. Jessica Prince, Chief of Staff to the Minister of Justice and Attorney General, to discuss SNC-Lavalin. According to Ms. Prince’s notes of the discussion, Mr. Chin stated that he had been speaking with SNC-Lavalin, and that the company’s perception was that the process of negotiating a remediation agreement was taking too long. Mr. Chin asked whether anything could be done to expedite the process. In his written submission, Mr. Chin stated that he did not recall what led him to make this inquiry.
In a follow-up email, Ms. Prince informed Mr. Chin that a senior official with the Public Prosecution Service of Canada (Prosecution Service) had previously informed staff within the office of the Minister of Justice and Attorney General that they could not seek an update from the Prosecution Service. Ms. Prince wrote that since the Prosecution Service is statutorily independent of government, simply asking for a status update could be perceived as, and may be, improper political interference. Ms. Prince also pointed to the relevant provisions setting out the prosecutor’s role in a remediation agreement regime, and the factors that could or could not be considered when making a decision.
Notwithstanding SNC-Lavalin’s efforts, in September 2018 the Director of Public Prosecutions informed the company that it would not be offered a deferred prosecution agreement and that the criminal prosecution would be proceeding. As the Ethics Commissioner noted, this decision concerned the Prime Minister, who wanted a resolution that avoided a criminal prosecution but was told by staff that the prosecutor’s office was independent of the government:
Mr. Trudeau’s General Direction Following the Director of Public Prosecutions’ Decision
Mr. Trudeau testified that the Director of Public Prosecutions’ decision was of concern to him as there had been a hope that the new remediation agreement tool, which the government had adopted, would have provided a path forward to hold SNC-Lavalin accountable for its prior wrongdoing without leading to many job losses.
In his written submission, Mr. Trudeau stated that he and his staff were puzzled by this development because, in his mind, SNC-Lavalin was precisely the kind of candidate for which the remediation agreement regime was designed: one that had taken significant steps to reform itself and whose conviction would harm many people who had not been involved in the wrongdoing. He recalled being concerned that the impact of the Director of Public Prosecutions’ decision would extend beyond the case of SNC-Lavalin, and that it might be treated as a precedent for the decision to offer or not offer the opportunity to negotiate a remediation agreement in other cases.
Mr. Trudeau testified that after being informed by his staff of the Director of Public Prosecutions’ decision, he asked his staff for existing options to move the file forward. He recalled that he was told by his staff that the Prosecution Service is independent, that the Attorney General is the only person who can issue directives to proceed in the matter, and that there is no specific time limit on the Attorney General intervening. He also testified that, at the time, he would have told his staff that it was important that Ms. Wilson-Raybould take into account the potentially negative consequences on Canadians as she made a determination whether or not to intervene in the matter.
Mr. Trudeau testified that while he asked to be kept informed of the situation, as this was an issue that could potentially affect thousands of jobs, it was not a matter for which he would have expected daily updates. At that time, other matters of national importance were largely occupying his time. He testified that he expected that his staff would continue their work.
The Attorney General also followed up with the Prime Minister, providing a legal memorandum that outlined the independent non-partisan role of the Attorney General. As that memorandum explained, while in theory the Attorney General has the power to take over a prosecution or issue directives in relation to a prosecution, in practice, an Attorney General has never issued a directive to the independent prosecutor’s office in respect of a specific prosecution:
Ms. Wilson-Raybould testified that given the importance and inclination that had been shown towards the adoption of a remediation agreement regime and given Mr. Morneau’s staff’s earlier inquiry into obtaining an update from the Prosecution Service on the matter, Ms. Wilson-Raybould knew that there was heightened awareness and a desire for a decision from the Director of Public Prosecutions in this case. Ms. Wilson-Raybould testified that she knew that if she agreed with the Director of Public Prosecutions’ September 4, 2018 decision, this would result in significant challenges for people within the government who had sought to have the remediation agreement regime in place, and that the decision would be scrutinized by the Prime Minister’s Office. As a result, Ms. Wilson-Raybould explained that she sought to be entirely confident in her decision not to take any action.
To do so, Ms. Wilson-Raybould testified that she had her Chief of Staff engage with her ministerial staff and with departmental officials. Ms. Wilson-Raybould further stated that she herself also had several discussions with her staff and with her Deputy Minister, sought advice from several former attorneys general and had discussions with an external agent, Mr. Grégoire Webber, employed with her ministerial office. Ms. Wilson-Raybould testified that she also benefited from memoranda drafted by her office and her department.
A first memorandum was prepared on September 5, 2018, by Ms. Carver and Mr. Webber at the request of Mr. Marques. The note focused on the prosecutorial independence of the Attorney General, the remediation agreement regime, the Director of Public Prosecutions’ decision not to negotiate with SNC-Lavalin, and political considerations regarding an intervention from the Attorney General.
The memorandum also quoted from the leading Supreme Court of Canada decision on prosecutorial independence, stating that “prosecutorial decisions must be made in a nonpartisan and objective manner that is independent from the political pressures of the government and protected from the influence of improper political and other vitiating factors.” The memorandum also set out the Attorney General’s role with regard to the Director of Public Prosecutions.
Under the Director of Public Prosecutions Act, the Attorney General is empowered to issue directives to the Director of Public Prosecutions in respect of prosecutions generally or in respect of specific prosecutions. In addition, the Attorney General has the power to assume the conduct of prosecutions.
Ms. Wilson-Raybould testified that her staff originally drafted the memorandum to ensure that the Prime Minister’s Office understood the nature of the relationship between the Attorney General and the Director of Public Prosecutions.
Mr. Marques testified that he discussed the memorandum with Ms. Wilson-Raybould’s staff and said that he would have briefed Mr. Trudeau on the principles included in the memorandum, such as the authority of the Attorney General to issue directives, and what it would mean for the Attorney General to issue a directive. He said he also would have described to Mr. Trudeau some of the political considerations that were raised, such as the fact that an Attorney General had never issued a directive on a specific prosecution. Mr. Marques said that since the Director of Public Prosecutions had rendered a decision that entailed certain consequences, he sought to ensure that Mr. Trudeau understood the matter.
However, the Prime Minister’s staff, as well as Minister of Finance staff, continued to contact the Attorney General’s office to try to convince the Attorney General to revisit the prosecutorial decision:
Discussions Between Ministerial Offices and with SNC-Lavalin Representatives
Documentary evidence shows that as a result of the Director of Public Prosecutions’ September 4, 2018 decision, senior staff in Mr. Morneau’s office and senior staff in the Prime Minister’s Office contacted Ms. Wilson-Raybould’s staff to discuss options and to find out what, if anything, could be done in the SNC-Lavalin matter.
Mr. Morneau testified that he was extremely surprised and shocked by the Director of Public Prosecutions’ decision, as it had been his expectation that the new regime made sense for SNC-Lavalin’s circumstances. When he heard the news, he immediately assumed that the company would be in jeopardy, either in the short or long term, and that as a result of a loss of business employees and pensioners would potentially lose their jobs and pensions respectively.
In fact, the Ethics Commissioner found that during a September 2018 meeting between the Prime Minister, Clerk of the Privy Council Michael Wernick, and the Attorney General, the Prime Minister asked the Attorney General to contact the independent prosecutor’s office to find a solution to the SNC-Lavalin matter. During that meeting, the Attorney General warned the Prime Minister against political interference:
September 17, 2018 Meeting Between Mr. Trudeau and Ms. Wilson-Raybould
According to Ms. Wilson-Raybould’s written account of her meeting with Mr. Trudeau and Mr. Wernick, Mr. Trudeau brought up SNC-Lavalin and asked her to help find a solution, stating that if the company did not benefit from a remediation agreement, it would move from Montreal and there would be many jobs lost.
Ms. Wilson-Raybould explained to Mr. Trudeau the state of the law and what the Director of Public Prosecutions Act allowed her, as Attorney General, to do in respect of issuing directives or assuming conduct of prosecutions. She told Mr. Trudeau that she had received the section 13 memorandum earlier in the month, that she had considered the matter very closely and had done her due diligence, and that she had made the decision not to interfere with the Director of Public Prosecutions’ decision.
According to Ms. Wilson-Raybould, the Clerk of the Privy Council made the case for the need to have a remediation agreement with SNC-Lavalin, stating that there was an upcoming board meeting with shareholders and that the company would likely move to the United Kingdom.
Mr. Wernick also brought up the fact that there was an impending election in Quebec. Mr. Trudeau also brought up the provincial election in Quebec and reminded her that he was a Member of Parliament in that province.
Ms. Wilson-Raybould stated that she then asked Mr. Trudeau if he was politically interfering with her role and her decision as Attorney General, and that Mr. Trudeau responded that he was not, but that they needed to find a solution.
When asked at his interview what kind of solution he was looking to Ms. Wilson-Raybould to find, Mr. Trudeau testified that he had hoped that she would see that it was in the public interest to find a solution to the matter. Mr. Trudeau wanted to ensure that the Attorney General had properly explored all the tools at her disposal and had considered the potential negative economic consequences on SNC-Lavalin’s employees in the form of job losses should the company be criminally prosecuted. Mr. Trudeau hoped Ms. Wilson-Raybould would engage with the Director of Public Prosecutions, either through a formal mechanism such as a directive issued under the Director of Public Prosecutions Act or in a less formal way to have the Director reconsider her original decision in light of the amendments to the Criminal Code authorizing remediation agreements.
However, Mr. Trudeau testified that he knew throughout that it was Ms. Wilson-Raybould’s decision to make.
The Attorney General also approached the Minister of Finance to warn him that his staff’s ongoing contract with the Attorney General’s office in relation to the SNC-Lavalin matter was inappropriate and could constitute political interference in a criminal prosecution. Notwithstanding that warning, the Minister of Finance remained concerned that the Attorney General had failed to conduct due diligence in relation to the criminal prosecution of SNC-Lavalin:
September 19, 2018 Interaction Between Mr. Morneau and Ms. Wilson-Raybould
After several interactions dating back to August 14, 2018, between her Chief of Staff and Mr. Morneau’s senior staff concerning SNC-Lavalin, Ms. Wilson-Raybould contacted Mr. Morneau and asked to speak to him directly.
On September 19, 2018, the two spoke briefly in a public area near the Commons Chamber before Question Period. According to both accounts of the discussion, Ms. Wilson-Raybould brought up he concerns about Mr. Morneau’s staff repeatedly speaking to her staff about SNC-Lavalin and said that it was inappropriate. She told Mr. Morneau that his staff needed to stop contacting her office on the matter and that they were undermining the fundamental tenets of democracy and prosecutorial independence.
Mr. Morneau testified that he responded by relaying the significant economic impact that could result from the Director of Public Prosecutions’ decision to not pursue a remediation agreement with SNC-Lavalin and reiterated the appropriateness and importance of interdepartmental communications. Both parties indicated that because of their apparent differences over the fundamental issue, the conversation lasted only a few minutes.
In his written submission, Mr. Chin stated that following Mr. Morneau’s discussion with Ms. Wilso Raybould, he did not have any other discussions about SNC-Lavalin with Ms. Wilson-Raybould’s staff after September 20, 2018.
Mr. Morneau testified that as Minister of Finance, it is his responsibility to consider the economic impacts of government decisions. He said he expected that as a Cabinet colleague, Ms. Wilson-Raybould would have requested information relating to the consequences for the company, its employees and its pensioners. Mr. Morneau testified that while it may or may not have been useful for Ms. Wilson-Raybould to have this information, she had, in his view, a responsibility to at least consider those economic impacts. As a result, Mr. Morneau did not believe Ms. Wilson-Raybould had conducted her due diligence in this matter.
When asked if he, or his office, had undertaken a study or analysis of the economic impacts of the Director of Public Prosecutions’ decision, Mr. Morneau testified that none had been conducted. As a former CEO of a business, Mr. Morneau said that he was very aware of the business context in which a project-based organization like SNC-Lavalin was operating, and that for a company that relies on government contracts, a criminal conviction would almost certainly lead to a loss of employment and jeopardize the funding of pension plans.
After its attempts to obtain a deferred prosecution agreement proved unsuccessful, SNC-Lavalin brought a judicial review challenge, while also increasing its communications with government officials, in its attempts to stop the prosecution. As the Ethics Commissioner report summarized, these efforts included retaining two former Supreme Court of Canada judges to provide legal opinions that supported the Attorney General’s ability to intervene in the prosecution, opinions that were shared with Treasury Board President Scott Brison, with the Prime Minister’s Office, and with the Minister of Finance:
SNC-Lavalin Shares its Legal Opinions with Government Officials and Staff
With a view to assisting the company with its desire for a remediation agreement, SNC-Lavalin’s legal counsel prepared two legal opinions which were subsequently shared with government officials, ministers, ministerial staff and staff in the Prime Minister’s Office.
According to SNC-Lavalin, its legal counsel, former Supreme Court Justice Frank Iacobucci, prepared a legal opinion that was to be shared with the Minister of Justice and Attorney General. It outlined the legitimacy for her to intervene in criminal matters seized by the Prosecution Service.
Mr. Iacobucci’s legal opinion was shared with Mr. Brison in a November 2, 2018 email from Mr. Prichard. In the email, Mr. Prichard wrote: “We are also considering other ways to make it easier for the Minister to engage and reverse the [Director of Public Prosecutions’] decision. In the end, however, it will take a deliberate decision from the center […].” Mr. Brison forwarded the email and attachments to senior advisors in the Prime Minister’s Office. Mr. Brison stated that a number of his Cabinet colleagues also received the legal analysis prepared by SNC-Lavalin’s legal counsel.
On November 1, 2018, Mr. Iacobucci requested an opinion from former Supreme Court Justice John Major, on whether the failure of the Director of Public Prosecutions to provide reasons for her refusal to invite SNC-Lavalin was unlawful and whether the refusal itself was unlawful. Mr. Major’s opinion was submitted on November 13, 2018.
According to documentary evidence, an SNC-Lavalin representative hand-delivered a copy of Mr. Major’s opinion to Mr. Morneau’s chief of staff and to senior advisors in the Prime Minister’s Office.
Ms. Wilson-Raybould testified that she did not see Mr. Iacobucci’s or Mr. Major’s opinions, nor was she made aware of their content.
When given a description of each opinion, Mr. Trudeau testified that, although he had not seen either opinion, the content sounded familiar, and that it was consistent with his general understanding of how the file progressed.
The Prime Minister’s Office also approached the Attorney General and encouraged her to seek an external legal opinion regarding the prosecution, an offer which she declined. As the Ethics Commissioner’s report detailed, during a December 2018 meeting between senior staff in the Prime Minister’s Office and Attorney General’s office, the Prime Minister’s staff expressed their concerns over the impact of potential job losses on the upcoming federal election and were of the view that it was still possible for the Attorney General to intervene in the prosecution:
December 18, 2018, Meeting Between Ms. Wilson-Raybould’s Chief of Staff and Mr. Trudeau’s Senior Staff
On December 18, 2018, Ms. Prince received an email from a staff member with the Prime Minister’s Office requesting an urgent meeting with Mr. Butts and Ms. Telford.
According to Ms. Prince’s notes of the meeting, Ms. Telford asked her why Ms. Wilson-Raybould had not done anything to advance the SNC-Lavalin matter. Ms. Prince explained what Ms. Wilson-Raybould had done thus far to ensure that due diligence was followed and that all options to intervene legitimately had been exhausted.
Ms. Prince also wrote that she explained the legal parameters of the remediation agreement regime to Ms. Telford and Mr. Butts, who had expressed their position (based on Mr. Bouchard’s and Mr. Marques’ opinions) that options were still available for Ms. Wilson-Raybould. Mr. Butts explained to Ms. Prince that the government had set up the remediation agreement regime to allow SNC-Lavalin to benefit from this tool, which is used in many other countries. Ms. Prince recounted that Mr. Butts emphasized possible job losses if nothing happened, that the company was at risk of being taken over and that the headquarters, located in Montreal, could move out of Canada. He referenced a shareholder or board meeting which was to take place in February 2019, as well as the upcoming federal election.
The Ethics Commissioner’s report also detailed a December 2018 recorded telephone conversation between the Clerk of the Privy Council and the Attorney General, during which the Clerk asked the Attorney General to consider all available options and expressed the Prime Minister’s concern over the failure to offer a deferred prosecution agreement. As the Ethics Commissioner noted, the Prime Minister later denied directing the Clerk’s communications with the Attorney General:
December 19, 2018 Telephone Call Between Ms. Wilson-Raybould and the Clerk of the Privy Council
Mr. Wernick telephoned Ms. Wilson-Raybould that evening. According to the transcript of the discussion, which was made public, Mr. Wernick told Ms. Wilson-Raybould that “the Prime Minister wants to be able to say that he has tried everything he can within the legitimate toolbox, so he is quite determined, quite firm, but he wants to know why the DPA route which Parliament provided for isn’t being used. I think he’s going to find a way to get it done, one way or another. So he’s in that kind of a mood, and I want you to be aware of it.”
When asked whether Mr. Wernick’s view of the situation was accurate, Mr. Trudeau testified that he does not know what led Mr. Wernick to communicate that message to Ms. Wilson-Raybould, nor does he recall ever making such stark statements to the Clerk of the Privy Council. In his written submission, Mr. Trudeau stated that he did not direct or ask Mr. Wernick to speak in those terms, and he certainly did not intend to threaten Ms. Wilson-Raybould.
Having read the transcript, Mr. Trudeau said that it is his perspective that Mr. Wernick was trying to arrive at a solution with Ms. Wilson-Raybould. Mr. Trudeau said that whether it was from a resolution through the court case, an intervention from the Attorney General, or from having Ms. McLachlin convince the Attorney General that it would be acceptable for her to re-examine the matter, he was hopeful that the outcome would be the saving of jobs.
Mr. Wernick testified that he did not recall Mr. Trudeau asking him to telephone Ms. Wilson-Raybould. He said that he decided himself to call her to discuss several issues, one of them being SNC-Lavalin. According to Mr. Wernick, the ongoing concern of Mr. Trudeau’s staff was that Ms. Wilson-Raybould had not taken into account all of the information when she made her decision in September. His recollection of the discussions was that her decision could not have been final at that time, as an intervention from the Attorney General could be possible until the company’s conviction or acquittal.
According to Mr. Wernick, there had been an evolution of the facts since September 2018. It was his understanding that it was always appropriate to raise new facts that were relevant to public interest considerations. He said his purpose for speaking to Ms. Wilson-Raybould about SNC-Lavalin was to understand her decision-making process, her rationale, and whether she had done her due diligence. Mr. Wernick stated that he had no view of what the outcome should be.
According to Mr. Wernick, Mr. Trudeau was concerned the government would be held accountable if SNC-Lavalin were criminally convicted and faced a 10-year ban on federal contracts, which could result in the sale or divestiture of the company. Mr. Wernick said that Mr. Trudeau wanted to have a good explanation or rationale for not proceeding with a remediation agreement when the regime had been added to the Criminal Code. He imparted to Ms. Wilson-Raybould Mr. Trudeau’s frustration with the matter. According to Mr. Wernick, Mr. Trudeau’s concern was, however, not for a particular outcome.
Following his discussion with Ms. Wilson-Raybould, Mr. Wernick said that he briefed Mr. Butts and recalled that he would have told him that Ms. Wilson-Raybould was still adamant about her decision. In his sworn affidavit, Mr. Butts stated that Mr. Wernick briefly mentioned that his conversation with Ms. Wilson-Raybould did not go well.
Mr. Trudeau testified that he was not briefed on the December 19, 2018 telephone call nor would he have expected to have been, unless there had been a change of direction in the matter.
The report found that the Attorney General had no further discussions with the Prime Minister’s Office until she was removed as Attorney General in a January 2019 cabinet shuffle. The issue of the SNC-Lavalin prosecution quickly became a matter of public record and eventually prompted the Ethics Commissioner’s investigation and report.
Turning to the relevant provision of the Conflict of Interest Act, the Ethics Commissioner noted that an attempt to improperly influence a government decision is sufficient to breach the statute, even if the attempt ultimately proves unsuccessful:
Section 9 of the Act prohibits public office holders from using their position to seek to influence the decision of another person in order to further their own interests, those of their relatives or friends, or to improperly further the private interests of a third party.
Section 9 reads as follows:
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.
In order for there to be a contravention of section 9, there is no requirement that the alleged influence must lead to the desired result. Rather, the public office holder is prohibited from simply using his or her position to attempt to influence another person’s decision.
Even a single finding of improper influence would lead to a contravention of section 9.
The Ethics Commissioner determined that the Prime Minister’s attempts to question the substance of the Attorney General’s non-intervention decision, or the prior decision of the independent prosecutor to proceed with the criminal prosecution, were inappropriate since those decisions fell within the scope of independent prosecutorial discretion:
Mr. Trudeau and his counsel raised several arguments to show that Ms. Wilson-Raybould’s decision making was somehow inadequate or incorrect. I must state, from the outset, that I did not consider any arguments that have as their aim to revisit or reconsider either Ms. Wilson-Raybould’s decision not to intervene or the Director of Public Prosecutions’ reasons for not inviting SNC-Lavalin to enter into a remediation agreement. I believe their decisions to be firmly entrenched in the exercise of prosecutorial discretion.
It is not for Mr. Trudeau, or for me, or for any other administrative body to judge whether an Attorney General has properly or sufficiently considered the public interest in matters of criminal prosecution or, for that matter, any other aspect of their decision-making process. Absent an abuse of process, even courts are reluctant to adjudicate on issues involving the exercise of prosecutorial discretion. As the Deputy Minister of Justice and Deputy Attorney General testified, the Attorney General must shoulder the responsibility for such decisions and is ultimately accountable before Parliament.
Notwithstanding repeated warnings of political interference, the Ethics Commissioner found that the Prime Minister continued to instruct his staff to try to find a solution to the SNC-Lavalin issue and avoid a criminal prosecution:
According to the evidence, before the Director of Public Prosecutions had issued her decision on possible negotiations towards a remediation agreement, ministerial staff in Ms. Wilson-Raybould’s office had, on August 14, 2018, put their counterparts in the Minister of Finance’s office on notice that merely requesting a status update on the SNC-Lavalin file from the Director of Public Prosecutions could be perceived as, and may indeed constitute, political interference.
The evidence also showed there were several other instances between September and December 2018 where Ms. Wilson-Raybould and her staff articulated the Attorney General’s concerns—to the Prime Minister, to senior officials in the Prime Minister’s Office, to ministers and their ministerial staff, as well as to the Clerk of the Privy Council—that they were engaging in what the Attorney General believed to be inappropriate attempts to interfere politically in a criminal prosecution.
On September 5, 2018, after having been informed of the Director of Public Prosecutions’ decision to not enter into negotiations for a remediation agreement with SNC-Lavalin, ministerial staff in Ms. Wilson-Raybould’s office outlined the potential political risks in intervening, and informed ministerial staff in the Prime Minister’s Office.
Upon being briefed by his advisors that the Director of Public Prosecution would not negotiate a remediation agreement with SNC-Lavalin, and despite the considerations militating against intervention by the Attorney General that were highlighted by Ms. Wilson-Raybould’s office, Mr. Trudeau instructed his staff to seek a solution to prevent economic consequences that would result from a criminal prosecution of the company.
In the report’s conclusion, the Ethics Commissioner found four separate instances in which the Prime Minister attempted to influence the Attorney General in relation to the SNC-Lavalin prosecution decision. The Ethics Commissioner determined that the September 2018 meeting between the Prime Minister and the Attorney General, during which the Prime Minister attempted to convince the Attorney General to revisit her non-intervention decision, was the first instance in which the Prime Minister attempted to influence the prosecutorial decision:
Mr. Trudeau’s direct interaction with Ms. Wilson-Raybould on the matter was limited to a single meeting on September 17, 2018. At that time, Mr. Trudeau had already been briefed that the Director of Public Prosecutions had decided to not invite SNC-Lavalin to enter into a remediation agreement, and that Ms. Wilson-Raybould was not inclined to disturb that decision.
The evidence showed that the Attorney General was of the view that she had completed her review, made up her mind, and articulated her position before her September 17, 2018 meeting with Mr. Trudeau. However, Mr. Trudeau and members of his staff were of the view that the Attorney General’s decision was subject to change up until the prosecution was completed and that she could receive new information for this purpose.
The evidence showed that on September 17, 2018, Mr. Trudeau and Mr. Wernick impressed on Ms. Wilson-Raybould the need to find a solution. They cited SNC-Lavalin’s impending board meeting later that week, and the economic consequences (including job losses and relocation) that would arise. They then raised the upcoming provincial election in Quebec, and Mr. Trudeau’s status as a Member of Parliament for a Quebec riding in close proximity to SNC-Lavalin’s corporate headquarters. It was following these latter comments that the Attorney General asked Mr. Trudeau whether he was politically interfering in a criminal prosecution, to which Mr. Trudeau replied that he was not and that he was merely trying to find a solution.
This was a first instance of Mr. Trudeau seeking to influence Ms. Wilson-Raybould’s decision in the matter.
Despite Ms. Wilson-Raybould’s direct advice to Mr. Trudeau, the evidence showed that her warning was discounted and ignored, because her senior staff continued to receive unsolicited entreaties to reconsider her refusal to intervene in the matter. Several witnesses testified that the degree to which the company was serious about taking measures to protect its business interests constituted new information that could be presented to the Attorney General. According to the evidence, Ms. Wilson-Raybould had already considered the economic consequences and did not view this information as sufficient to revisit her original decision not to intervene.
The Ethics Commissioner then determined that the subsequent attempts by the Prime Minister to have the Attorney General intervene to expedite SNC-Lavalin’s judicial review challenge was the second instance in which the Prime Minister attempted to influence the Attorney General’s decision:
Despite Ms. Wilson-Raybould’s direct advice to Mr. Trudeau, the evidence showed that her warning was discounted and ignored, because her senior staff continued to receive unsolicited entreaties to reconsider her refusal to intervene in the matter. Several witnesses testified that the degree to which the company was serious about taking measures to protect its business interests constituted new information that could be presented to the Attorney General. According to the evidence, Ms. Wilson-Raybould had already considered the economic consequences and did not view this information as sufficient to revisit her original decision not to intervene.
Following that September 17, 2018 meeting, the evidence showed that individuals under the direction of Mr. Trudeau continued to engage with representatives of SNC-Lavalin and with Ms. Wilson-Raybould’s ministerial staff to seek to influence Ms. Wilson-Raybould through alternative means. Although Mr. Trudeau was not briefed on each specific conversation on the matter, he testified that he was regularly kept informed of the file’s developments.
On October 19, 2018, SNC-Lavalin filed an application for a judicial review of the Director of Public Prosecutions’ decision. During a judicial review, the Crown’s interests are represented in most cases by the Attorney General of Canada or, in this instance, their delegate, the Prosecution Service. Yet the evidence showed that at least two attempts were made, by an official in the Privy Council Office and by a senior advisor in the Prime Minister’s Office, to have the Attorney General intervene in the judicial review to try to expedite the hearing or to ask for a stay of proceedings pending a resolution of the discussions surrounding the remediation agreement. Both the Department of Justice and Ms. Prince were required to explain why the Attorney General could not intervene in a matter in which her delegated representative, the Prosecution Service, was respondent.
This represented a second attempt to influence Ms. Wilson-Raybould’s decision whether to intervene in the matter.
The Ethics Commissioner also determined that the Prime Minister’s attempt to have the Attorney General seek an external legal opinion was the third instance in which the Prime Minister attempted to influence the prosecution decision:
By the end of October 2018, senior advisors in the Prime Minister’s Office began to turn their minds to the possibility of seeking external advice to assist the Attorney General. The evidence showed that SNC-Lavalin’s legal counsel, a former Supreme Court justice, sought to provide advice on, among other things, the remediation agreement regime and how the Minister of Justice—not the Attorney General—could legitimately intervene without compromising prosecutorial independence. A second former Supreme Court justice was retained indirectly to provide advice on whether the Director of Public Prosecutions’ decision to not enter into a remediation agreement without reasons was lawful.
By December 2018, both SNC-Lavalin (through its counsel) and a senior advisor in the Prime Minister’s Office had personally reached out to the former Chief Justice of the Supreme Court of Canada, Ms. McLachlin, to explore the possibility of having her provide advice on the matter directly to the Attorney General or to act as a mediator, though it was unclear what, exactly, either mandate would be. Although Ms. Wilson-Raybould had been made aware of the possibility of obtaining advice from “someone like” Ms. McLachlin, she did not know until I mentioned it to her during her interview that preliminary discussions between the former Chief Justice and SNC-Lavalin’s legal counsel and a senior advisor in the Prime Minister’s Office had already taken place.
The idea of seeking external advice to assist Ms. Wilson-Raybould had already been put forward by the Deputy Minister of Justice as an option in her September 8, 2018 opinion. The evidence showed that, at that time, Ms. Wilson-Raybould’s office considered, but turned down, the possibility of seeking external advice due in large part to the impractical mechanics of how such an individual would obtain access to the Prosecution Service’s confidential file and the implications of perceived political interference. Ms. Wilson-Raybould questioned what an independent third party could have offered that had not already been provided or considered by the independent Director of Public Prosecutions.
The evidence showed that the legal opinions prepared by or for the benefit of SNC-Lavalin were shared with and reviewed by the Prime Minister’s Office and other ministers and ministerial staff in November 2018, with the sole purpose of persuading Ms. Wilson-Raybould to reconsider her position.
Senior staff in the Prime Minister’s Office made at least three attempts—on November 22, December 5, and December 18, 2018—to persuade Ms. Wilson-Raybould, directly and through her Chief of Staff, to re-examine the idea of seeking external advice on the matter.
It must be reiterated that these legal opinions were circulated, and their contents discussed, during ongoing legal proceedings involving the Prosecution Service before the Federal Court of Canada and unbeknownst to the Attorney General.
The fact that senior staff in the Prime Minister’s Office pressed Ms. Wilson-Raybould on the idea of seeking external advice on the matter—all the while knowing the advice that would be given and selectively withholding other material information from Ms. Wilson-Raybould—was, in my view, a third attempt to bend the will of the Attorney General.
Finally, the Ethics Commissioner determined that the December 2018 intervention by the Clerk of the Privy Council on behalf of the Prime Minister, wherein the Clerk attempted to convince the Attorney General to reconsider her decision, was the fourth instance in which the Prime Minister attempted to influence the prosecution decision:
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. It is evident from the audio recording that Mr. Wernick was making an appeal, on behalf of Mr. Trudeau, to have the Attorney General reconsider her decision to not intervene in the criminal prosecution. Although the messenger had changed, the message remained the same: a solution was needed to prevent the economic consequences of SNC-Lavalin not entering into negotiations for a remediation agreement.
Ms. Wilson-Raybould expressed in clear terms her view that the conversation amounted to political interference—because Mr. Wernick was speaking for the Prime Minister—and voiced her unwillingness to overrule the Director of Public Prosecutions’ original decision. Despite Mr. Trudeau’s testimony that he did not know what prompted Mr. Wernick to make “such stark statements” when engaging with Ms. Wilson-Raybould, it is difficult for me to imagine that Mr. Wernick would have acted without a full and clear appreciation of Mr. Trudeau’s position on the matter.
I find all of these tactics troubling.
As Prime Minister, Mr. Trudeau was the only public office holder who, by virtue of his position, could clearly exert influence over Ms. Wilson-Raybould. The authority of the Prime Minister and his office was used to circumvent, undermine and ultimately attempt 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.
Mr. Trudeau argued that he could not be held vicariously liable for the actions of his senior advisors and other senior departmental officials. He pointed to this Office’s decision in The Wright Report, where Ethics Commissioner Dawson found that Mr. Nigel Wright, then Chief of Staff to former Prime Minister Stephen Harper, had used his position to influence another person’s decision so as to improperly further another person’s private interests. However, nothing in that report suggests that the former Prime Minister was involved in or even 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.
While the Prime Minister argued that these interventions were for the public interest rather than on behalf of SNC-Lavalin’s private interests and were therefore not contrary to the Conflict of Interest Act, the Ethics Commissioner disagreed, concluding that it was up to the independent prosecutor, and not the Prime Minister, to determine which considerations were relevant to making a prosecutorial decision:
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. The remediation agreement regime makes it clear that only the prosecutor must weigh (or exclude) these interests.
As the Ethics Commissioner observed, the Shawcross doctrine requires that prosecutorial decisions be made free from political interference or partisan political considerations:
Partisan political interests put to the Attorney General
While SNC-Lavalin would have benefited from Ms. Wilson-Raybould’s intervention in the matter, the evidence showed that the governing party also considered the partisan political consequences of not being able to secure a remediation agreement for the company. For the reasons that follow, any partisan political interest that was put to Ms. Wilson-Raybould in the context of her evaluation of the matter in question was improper.
The reason why narrow political interests cannot be considered by an Attorney General in the context of a criminal prosecution was perhaps most famously articulated by Lord Hartley Shawcross, then Attorney General of England and Wales, to the House of Commons of the United Kingdom in 1951:
The true doctrine is that it is the duty of the Attorney General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other consideration affecting public policy. In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the government, and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney General, and he is not to be put, and is not put, under pressure by his colleagues in the matter. Nor, of course, can the Attorney General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which in the broad sense that I have indicated affect government in the abstract arise it is the Attorney General, applying his judicial mind, who has to be the sole judge of those considerations. (U.K., H.C. Debates, vol. 483, cols. 683-84, [29 January 1951])
Lord Shawcross also explained that the Attorney General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it to be in the public interest. Indeed, Professor Edwards stated in his book entitled The Attorney-General, Politics and the Public Interest that the Attorney General has been recognized historically, both in jurisprudence and in scholarly legal doctrine, as one of many constitutional “guardians of the public interest” and as superintendent of the administration of justice (Edwards, 1984, pp. 138-144). In The Law Officers of the Crown, Professor Edwards added that the Attorney General must represent the public interest “with complete objectivity and detachment” and must discharge that duty even in circumstances where the public interest conflicts with the political interests of their Cabinet colleagues (Edwards, 1964, p. 298). In deciding whether to prosecute, Lord Shawcross also stated: “there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party’s or the government’s political fortunes; that is a consideration which never enters into account.” (U.K., H.C. Debates, vol. 483, col. 682 [29 January 1951])
Lord Shawcross’ pronouncement is widely regarded as emblematic of the principle of prosecutorial independence, a constitutional convention that flows directly from the rule of law. The Supreme Court of Canada has stated that the rule of law “lie[s] at the root of our system of government” and is “a fundamental postulate of our constitutional structure.” Moreover, the rule of law “is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.” Simply put, this fundamental principle “requires that all government action must comply with the law […].” (Reference re Secession of Quebec,  2 S.C.R. 217, paras. 70-72; Roncarelli v. Duplessis,  S.C.R. 121, p. 142; Reference re Manitoba Language Rights,  1 S.C.R. 721, p. 748)
In Krieger v. Alberta Law Society, 2002 SCC 65, the leading decision on the historical and constitutional role of the Attorney General, the Supreme Court of Canada devoted particular attention to the principle of prosecutorial discretion and the rule of law. The reasons for judgment, penned by Iacobucci and Major JJ., read in part as follows:
32. The court’s acknowledgement of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. […] The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.
45. As discussed above, these powers [of prosecutorial discretion] emanate from the office holder’s role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies. [Emphasis added]
The Ethics Commissioner determined that the Prime Minister breached the principles of the Shawcross doctrine through repeated interventions that attempted to introduce partisan political considerations into the independent prosecutorial decisions of the Attorney General:
Mr. Trudeau argued that his interactions with Ms. Wilson-Raybould were consistent with the Shawcross doctrine because he did not direct her to intervene; he merely sought an explanation on her decision making and assurances that she had considered every possible option. The fact that Ms. Wilson-Raybould was not directed to intervene likely prevented the occurrence of actual political interference in the matter but does little to assist Mr. Trudeau in this examination. The repeated interventions by the Prime Minister, his most senior ministerial staff 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.
Mr. Trudeau and several witnesses testified they believed that the Shawcross doctrine allowed for debate between the Attorney General and Cabinet colleagues. My reading of the doctrine and the governing jurisprudence have led me to a different conclusion. Although the Shawcross doctrine provides that the Attorney General may “consult” colleagues on a given matter, in order to minimize the possibility of conflicts of interest from arising, I believe that that consultation should be led, whenever possible, by the Attorney General.
It would be exceedingly difficult, in my view, for an Attorney General to dissociate genuine public interests from partisan interests when those considerations are advanced by Cabinet colleagues and their staff. Members of the executive branch of government should therefore exercise an abundance of caution before providing unsolicited views to the Attorney General. Those views should be devoid of any semblance of partisan or private interests.
In matters involving the exercise of prosecutorial discretion relating to remediation agreements, both the Shawcross doctrine and the recent amendments to the Criminal Code circumscribe the information that can properly form the basis of any consultation between the Attorney General and members of Cabinet. In my view, considerations of a narrow political nature, particularly those advanced by ministers or ministerial advisors relating to an individual’s or to a party’s political fortunes, cannot be used to guide the Attorney General in their role.
The Ethics Commissioner’s report enumerated multiple instances during which the Prime Minister and his agents attempted to introduce political considerations – the pending Quebec provincial election, the fact that SNC-Lavalin’s headquarters were located in the Prime Minister’s riding, the threat of job losses if SNC-Lavalin relocated its headquarters outside of Canada, and the pending federal election – into the Attorney General’s decision-making process:
In addition to the numerous instances where SNC-Lavalin’s private financial interests were raised, the evidence showed that private political interests were also put before Ms. Wilson-Raybould, directly or indirectly, on at least four separate occasions.
The 2018 provincial election in Quebec was first raised by ministerial staff in the Prime Minister’s Office on September 16, 2018, in a conversation with Ms. Wilson-Raybould’s Chief of Staff.
The following day, Mr. Trudeau and the Clerk of the Privy Council both raised the impact a decision from the federal government would have on the upcoming Quebec elections with Ms. Wilson-Raybould during their September 17, 2018 meeting. Mr. Trudeau stated that he was the Member of Parliament for Papineau. In my view, Mr. Trudeau made this statement to underscore the fact that his electoral riding was situated in the same province as SNC-Lavalin’s headquarters and that Ms. Wilson-Raybould’s decision not to intervene could have larger political repercussions in Quebec, both for the federal and provincial orders of government.
Again, on October 26, 2018, in the course of discussions between the Prime Minister’s Office and the Minister of Justice’ office on the possibility of the relocation of SNC-Lavalin’s headquarters, staff in the Prime Minister’s Office commented that they could have “the best policy in the world” but needed to be re-elected. Mr. Trudeau attempted to justify this statement by testifying that negative job growth would have real consequences on his party’s ability to serve. This is yet another indication that Mr. Trudeau and the Prime Minister’s Office viewed the matter chiefly through a political lens to manage a legal issue.
Finally, the upcoming 2019 federal election was raised, according to notes of a conversation between Ms. Wilson-Raybould’s Chief of Staff and senior staff in the Prime Minister’s Office, on December 18, 2018. Again, the fact that SNC-Lavalin was located in the Prime Minister’s home province was used to convey the importance of a resolution that was favourable for both the company and the governing party.
Regardless of the stated reasons for raising these considerations, the acceptance of the Shawcross doctrine in Canadian law as the appropriate yardstick establishing the bounds between the political and judicial minds of the Attorney General cannot be ignored. 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.
The Ethics Commissioner also found that the Prime Minister should have instructed his staff to cease any further communications with SNC-Lavalin once he found out about SNC-Lavalin’s judicial review challenge against the independent prosecutor’s criminal prosecution decision. However, rather than instructing his staff to stand down, the Ethics Commissioner determined that the Prime Minister allowed his staff to continue their attempts to influence the prosecutorial decision. As the Ethics Commissioner concluded, these actions put the government in conflict with itself since the Attorney General was trying to protect an independent criminal prosecution while other parts of government were advocating against that same prosecution:
Discussions during ongoing legal proceedings
As was stated above, SNC-Lavalin’s October 19, 2018 notice of application for judicial review of the Director of Public Prosecutions’ decision should have put Mr. Trudeau and those acting under his direction on notice to cease all discussions with SNC-Lavalin on the matter.
On October 26, 2018, a senior official in the Privy Council Office inquired whether it would be possible to have Ms. Wilson-Raybould intervene in the legal proceedings to expedite the hearing. It was explained that it would be procedurally impossible for a party to appear twice, in two separate roles, in the same matter.
This message was also conveyed by Ms. Wilson-Raybould’s office to the Prime Minister’s Office, in response to the same question later that day.
In addition, Mr. Trudeau received two briefings from the Privy Council Office, on November 20 and 26, 2018, to not meet with SNC-Lavalin’s CEO and not discuss the SNC-Lavalin matter with the company’s legal counsel because of the ongoing legal proceedings. As a result, Mr. Trudeau was well aware of the legal proceedings, but did not instruct his senior staff to stand down.
To the contrary, the evidence indicated that discussions between the Prime Minister’s Office and SNC-Lavalin intensified in number and in tenor following the commencement of legal proceedings. Legal counsel for SNC-Lavalin became the primary points of contact in discussions with the Prime Minister’s Office in November and December 2018. During that time, various settlement mechanisms were discussed without regard to the Prosecution Service’s role, as the delegated representative of the Attorney General, in the proceedings.
The principles of prosecutorial independence and sub judice make it clearly improper for one branch of the Government of Canada to be communicating with applicants to a judicial review challenging a decision made by another branch of the Government of Canada, without the knowledge or involvement of the Attorney General or their delegated representative.
Given the above, the Ethics Commissioner determined that the Prime Minister breached the Conflict of Interest Act:
I find that Mr. Trudeau used his position of authority over Ms. Wilson-Raybould to seek to influence her 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.
For these reasons, I find that Mr. Trudeau contravened section 9 of the Act.
As this case study illustrates, the failure to establish clear and effective internal governance frameworks, with clearly defined roles, responsibilities, and protections against the improper politicization of government decisions, can result in significant unintended consequences. In this case, while the government rushed through a legislative amendment aimed at enabling a deferred prosecution agreement, it failed to implement clear protocols to ensure that any deferred prosecution decision was protected from inappropriate political interference. As a result, the Prime Minister was exposed to significant reputational risk. As the Ethics Commissioner concluded, even if the attempted interventions were well-intentioned attempts to avoid job losses for a large Canadian contractor, they still constituted breaches of the Conflict of Interest Act. This case serves as a useful reminder of the need to shield both government procurement decisions and prosecutorial decisions from political interference through the creation of appropriate internal governance protocols.