Was watchdog out of line on SNC-Lavalin?

Opinion

Hey there, time traveller!
This article was published 26/08/2019 (2234 days ago), so information in it may no longer be current.

On Aug. 13, Canada’s conflict of interest and ethics commissioner, Mario Dion, issued what the media described as a damning report that concluded Prime Minister Justin Trudeau had inappropriately sought to influence the decision of former attorney general Jody Wilson-Raybould in order to further the interests of SNC-Lavalin in its lobbying efforts to minimize the negative effects of past criminal misconduct.

The report covers important issues and contains information that was not previously available. It has significant educational value; however, there are reasons to question how the commissioner approached his mandate, his interpretation of the facts and his ultimate judgment that Trudeau violated a law or a constitutional convention.

After receiving complaints from two opposition MPs that Trudeau had violated conflict of interest law, Dion agreed to investigate. Discovering that the complaints were filed under the wrong section, he took it upon himself to investigate under Section 9, which prohibits attempts by politicians to influence decisions that will benefit themselves, their families or their friends. He concluded that Trudeau’s actions did not violate this usual understanding of a conflict of interest.

Not stopping there, however, Dion argued that Section 9 also applies to interactions in which the prime minister and others sought to protect the interests of SNC-Lavalin by lobbying the AG. Some legal experts claim that this extension of Section 9 means the commissioner could potentially question a sweeping range of government decision-making.

Dion then turned his attention to the Shawcross doctrine that originated decades ago in the U.K. Shawcross is a statement of principles and practices intended to uphold the independence of the AG in her role to protect the rule of law. It is a doctrine, far from comprehensive or definitive, of how interactions between the AG and other ministers must occur under varied circumstances.

The Shawcross doctrine makes clear that the government cannot order the AG to grant a remediation agreement. In fact, no such order was given. The doctrine clearly allows prime ministers and others to communicate broader considerations of public policy to the AG, which she is obliged to consider.

In this instance, Dion concluded there was undue pressure applied to the AG on behalf of SNC-Lavalin. There is inevitable subjectivity involved with drawing this conclusion, which required interpretation of complicated facts and a balancing of a conflicting set of values and public policy concerns. The law respecting remediation agreements is new and there are few, if any, precedents to guide the commissioner. In short, what constitutes undue pressure is at least partly in the eye of the beholder.

This case highlights the increasingly influential role of agents of Parliament in the national policy process. Their rise as significant actors reflects a decline of trust and confidence in politicians and Parliament to act in an objective, informed manner to promote and protect such cherished democratic values as the rule of law, fair elections, integrity in government, freedom of information and privacy.

Agents serve both Parliament and citizens; they are meant to be independent of both the political executive and the bureaucracy.

Agents perform important functions, but they are not infallible — especially when they move beyond the letter of the law into the more ill-defined domain of unwritten, informal constitutional conventions such as the Shawcross doctrine, and the room for controversy increases. Because most agents can make recommendations but not order actions or impose penalties — beyond bad publicity — they tend to minimize their influence.

Their reports, however, enter into the adversarial world of Parliament, where competitive political parties engage in a “fire alarm” approach to accountability. When smoke of a presumed scandal rises, opposition parties rush in to fan the flames while the governing party seeks to douse the fire. Media coverage of these parliamentary clashes serves to simplify, distort and amplify the issues involved. On less contentious issues, Parliament tends to neglect reports from agents.

Prior to the SNC-Lavalin affair, the opposition parties had chastised Dion as a timid watchdog who refused to bark, let alone bite. Now the same parties, and many media commentators, are portraying him as a superhero who is single-handedly protecting the rule of law. For his part, Dion has reiterated his previous insistence that his office needs more investigative powers and the authority to impose penalties, such as fines.

Before Parliament grants his wish, we need to debate whether a public official, even one who serves a Parliament, will always have the wisdom to judge correctly and can be held meaningfully accountable for the quality and consequences, intended and unintended, of those judgments.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba. He has written extensively on finding the right balance between independence and accountability for agents of Parliament.