To the editor:
The SNC Lavalin affair is a highly emotional crisis marking the collision of important legal and ethical issues.
But these issues may be misunderstood.
The legal issues are simple—(former justice minister) Jody Wilson-Raybould acknowledged early on that the Prime Minister’s Office did nothing illegal.
The “pressure” that she found “inappropriate” did not prevent her from exercising her legal authority as attorney-general.
In short, no one tried to override her decision to prosecute SNC. When she was replaced as attorney general, the decision to replace her was legal because all cabinet ministers serve at the discretion of the prime minister.
When replaced, she surmised that the PMO wanted a new attorney-general who would reverse her SNC decision. If the new attorney general were to reverse her decision, that action would also be legal.
In short, Wilson-Raybould was 100 per cent correct in stating that nothing illegal was done.
Ethical issues are more complex. The great ethical issues typically involve the collision of two highly important ethical values.
One such value is the independence of prosecutorial decision-making. Another is the nation’s economic well-being.
Raybould has said, “This goes far beyond saving jobs.” She implies that the issue of job loss is somehow minor and illegitimate because it is political.
But Wilson-Raybould had the dual role of attorney general and minister of justice. In the latter role, she was an active member of a political team dedicated to considering public-affairs (i.e. political) issues.
As one law professor put it, the SNC affair is not a scandal but an ethical dilemma.
Prosecutorial independence is very important—thank God the PMO made no attempt to override it. And Canada’s economic well-being is also very important.
We now know that Trudeau was not fabricating his concern about job losses. SNC Lavalin had written to the government predicting big job losses and threatening to move its head office out of Canada.
It would be outrageous had the prime minister chosen to ignore the economic consequences of prosecution.
Trudeau wanted not a violation of the law but “a solution” to a politico-legal dilemma.
One such solution might be to reduce the moratorium on federal contracts from 10 years to two or three years. This would be a politico-legal solution that would prevent not only SNC but any Canadian company from being crippled by criminal prosecution.
Wilson-Raybould has consistently and persistently elevated a single ethical value to superordinate importance.
Trudeau has acted as though he has an obligation to balance priorities in a way that is both legally and politically legitimate.
In my view, Trudeau’s actions have been badly misconstrued.