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Politics No. 1 question in SNC-Lavalin affair is whether Trudeau tainted rule of law

We now know, according to the country’s top civil servant, that former attorney-general Jody Wilson-Raybould was under pressure in the SNC-Lavalin affair, but Michael Wernick insisted last week it was not “inappropriate pressure.”

This week, justice committee hearings on the matter turn on when pressure is inappropriate.

Ms. Wilson-Raybould is expected to testify Tuesday or Wednesday. Justin Trudeau’s aides may be called later. And it is important to get answers to a few key questions.

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The real question is whether the Prime Minister or the people around him did something wrong. Not criminal – there’s a high bar for willful obstruction of justice – but wrong. Did they meddle in a prosecution?

Politically, that may not be the question that matters. The public might be less concerned with the fine points of prosecutorial independence and more concerned with the government’s intentions. Many, certainly many in Quebec, think it’s important to save SNC-Lavalin’s jobs and keep its head office in Quebec. Mr. Trudeau keeps saying that’s what was on his mind – that he was trying to balance concern for jobs with the rule of law.

But the important question is whether he tainted the rule of the law.

In our system, prosecutions are the responsibility of the attorney-general, not the PM or ministers.

There is room for the Attorney-General to talk about prosecutions with cabinet ministers. The Shawcross doctrine, which establishes the line between legitimate discussion and interference, says the Attorney-General can consult ministers (or the PM) to inform their decision, but those ministers must not urge her, or put pressure on her, to take a particular decision.

Certainly, there were conversations: Mr. Trudeau spoke to Ms. Wilson-Raybould about the prosecution at a Sept. 17 meeting. The PM’s two top aides at the time, Gerald Butts and Katie Telford, met her chief of staff on Dec. 18. And Mr. Wernick said he told Ms. Wilson-Raybould in a Dec. 19 telephone call that the PM and her cabinet colleagues were concerned about the economic effects of a prosecution on SNC-Lavalin – but that was “context” for her decision.

Ms. Wilson-Raybould was under pressure to get it right, he said, but not subjected to “inappropriate pressure.”

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Under the the Shawcross doctrine, putting pressure on the attorney-general to make a particular decision is inappropriate. So what constitutes pressure? The thesaurus lists a lot of synonyms, such as coerce, press, influence, squeeze, hound, harass, nag, badger and browbeat.

The answers to a few questions would help determine if Mr. Trudeau and his people crossed the line.

  • Who initiated the conversations? Mr. Wernick suggested that the Shawcross doctrine allowed the PM and aides to discuss prosecutions with the attorney-general. But former Ontario attorney-general Michael Bryant argues that’s a misreading; the Shawcross doctrine allows the attorney-general to consult cabinet colleagues, but does not open the door for others to raise prosecutions with her. “It is a one-way street,” Mr. Bryant said.
  • Did they raise it repeatedly? Even if you allow for a slip for “context,” it would turn to pressure – nagging or browbeating – if the PM and his most powerful aides and officials kept bringing up their concern about prosecuting SNC-Lavalin.
  • Was there a threat, direct or veiled? If Mr. Trudeau or any of his influential inner circle warned Ms. Wilson-Raybould she could face consequences for the “wrong” decision, that would be coercion that clearly crosses the line.
  • Did Ms. Wilson-Raybould ever indicate her decision was final? Mr. Wernick testified Thursday that she did not believe it would be good for prosecutors to settle the SNC-Lavalin case, and she had no intention of intervening. Did she indicate that she considered her decision final? If so, initiating new conversations in December suggests pressure.
  • Did Ms. Wilson-Raybould complain? Both Mr. Trudeau and Mr. Wernick stressed that the former attorney-general could have complained or quit if she felt she was under pressure. Maybe it might not have been realistic to complain – but if she felt subjective pressure, raising it would have made that clear to others.
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