Mr Coyne disingenuously claims that “There’s a reason no attorney general has ever overridden a DPP’s decision in a specific prosecution.” Highly doubtful Coyne ever did a search on that, but more importantly, the previous AG did encroach on the authority of the DPP to tell her how to prosecute HIV cases.
Speaking to “limit unjust prosecutions” against HIV patients, JWR said: “In our democracy advocacy matters”! Apparently, the lawful advocacy of her colleagues who were concerned about collateral damage to innocent Canadians without a DPA for SNC is not advocacy, but “pressure”!
Coyne needs to remove his Keyboard Lawyer hat: the Judge did not endorse the former Attorney General’s (AG) refusal to overrule the Director of Public Prosecution (DPP), Kathleen Roussel’s decision not to use a DPA (deferred prosecution agreement) for SNC-Lavalin. Overruling a DPP is outside the jurisdiction of the federal court so SNC’s gambit was always a long shot. Furthermore, the current AG, is authorized to direct the DPP to negotiate a DPA right up to the end of the trial.
Coyne’s interpretation of the Criminal Code: “…SNC-Lavalin was ineligible for a remediation agreement on multiple grounds: because of the severity of the crimes of which it is accused; because it has not admitted corporate responsibility; because it did not voluntarily disclose its alleged wrongdoing; because the chief argument for waving all these away, WHAT ABOUT THE JOBZ, is expressly precluded from consideration.” Wrong Mr Coyne!
1) We don’t know that SNC is ineligible due to the “severity of the crimes” committed! Neither the DPP, nor the AG have spelled this out.
2) Putting my critical thinking cap on: if SNC admits guilt before the invitation to negotiate a DPA is issued, Canada doesn’t need an expensive criminal trial and can proceed straight to sentencing. Right, Mr Coyne?
With a DPA, admitting to “corporate responsibility” and “wrongdoing” is one of the negotiated terms, in addition to waiving the Statute of Limitations so that the DPP can prosecute even if allowed time has elapsed if the Corporation breaks its contract. A prosecution is then a slam-dunk! Make sense Mr Coyne?
3) “JOBZ” (i.e., economic factors) are only excluded if it affects the autonomy of our DPP, or if our country’s economic interests with a DPA benefits us over that of other OECD countries. If no other OECD countries are involved and they are not in this case, why would any Corporation be granted a DPA if the possible collateral damage of thousands of jobs on the economy is not factored in? Make sense, Mr Coyne?
Duty to Consult & the Shawcross Principle
The Shawcross Principle contains within it a duty to consult. The former AG was an experienced junior prosecutor dealing with drug cases, but she had no expertise with corporate crime! Moreover, the DPA law was just given Royal Assent, in Sept 2018. By not doing wide consultations including legal expertise more experienced than herself on whether to over-ride the DPP, JWR abrogated her duty when she ignored the Finance Minster’s request to consider jobs before making a final decision.
In public testimony, JWR claimed she did due diligence and gave “careful consideration and study” about possibly over-riding the DPP’s intended prosecution with a directive that she negotiate a DPA! Despite the fact JWR claims she takes copious notes, the paper trail of her due diligence is mysteriously missing, and most especially given her DMOJ timeline below. Why?
JWR’s final decision not to over-ride the DPP was also allegedly made in just 12 days, 8 of which were spent overseas, and 1-2 may have been preparing and giving a speech at the University of Saskatchewan on Sept 13th. However, given the timeline below it appears that JWR’s decision was made in a short span of just a few days so where is this due diligence? A timeline:
- On Sept 4, according to Nathalie G. Drouin (DMOJ: Deputy Min of Justice), she became aware of the DPP’s decision to prosecute
- Sept 6-7: During a conversation with the AG’s staff, Emma Carver, the DMOJ learned that “…the Attorney General was not keen on the idea of exercising her authorities under the DPP Act” to over-ride the DPP’s decision to prosecute and instead negotiate a DPA.
- On Sept 8th, Drouin provided her draft opinion to the former AG’s office entitled: “The power of the Attorney General to issue directives and to assume conduct of proceedings.” One of the options covered “…the possibility of seeking outside advice with respect to the AG’s powers under the Act and the Criminal Code in order to assess whether the conditions for a remediation agreement are met.”
- On Sept 11, the AG’s Chief of Staff informed the DMOJ by email “… that the AG was not intending to intervene in the case….” However, JWR spent part of the week on vacation in Fiji suntanning so when did the due diligence happen exactly? When did she overcome 17 hrs of jetlag?
- On Sept 13, the former AG traveled to Saskatoon to give a speech at the University of Sask (my note, not included with the DMOJ’s testimony)
- On Sept 17, or thereabouts, the DMOJ met for the 1st time with the former AG on the file.
- On Sept 17, the former AG met with Michael Wernick (PCO: Privy Council Office) and PM Justin Trudeau.
- On Sept 18, the DMOJ met with the former AG to debrief on her Sept 17 meeting. and stated that JWR was “not comfortable” with the content of yesterday’s meeting.
- On Sept 19, JWR orders her DMOJ not to have any further discussion about SNC.
- On Oct 19, JWR ordered her DMOJ not to provide the PCO with the draft legal advice on what would happen if SNC were not given a DPA.
Coyne’s gaslighting is odorous: “We have heard much of the many entreaties [20] to the AG to lean on the DPP, by the prime minister, his principal secretary, his chief of staff, the clerk of the Privy Council, the finance minister, and his chief of staff, among others.”
Let’s put to rest once and for all, what the subjective term “pressure” meant to a rookie Prosecutor appointed as AG. According to JWR’s testimony, it amounted to:
- 20 communications over 107 days: emails, calls, meetings
- 107/20 = 1 contact every 5.35 days
Most communications were internal between staff stressing the importance of finding a solution for SNC that didn’t involve collateral damage to innocent Canadians. JWR only took a few personal meetings with a few of those meetings initiated by herself.
Two calls involved the DMOJ and the PCO who wanted advice on what the possible outcome could be if a DPA is not sought and SNC is found guilty. Our former AG ordered her DMOJ not to send Mr Wernick the report even though it was prepared. Why?
Where exactly is JWR’s pressure? Is that how we run Government? On subjective feelings?
Former deputy prime minister Sheila Copps said recently, “For heavens’ sake, on one issue when in government, I was lobbied 150 times.”
The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence
“Prosecutorial independence should not be an excuse for prosecutors not providing reasons for important decisions.”
See Part Two – Shawcross Doctrine, DPAs, SNC – for more information on Prosecutorial Independence and the Shawcross Principle.
GASLIGHTING ON STEROIDS: breathless speculation!
Let’s talk about Mr Coyne’s feelings shall we as they are almost as breathtaking as our former AG’s feelings of “pressure”! Moreover, his article represents what the media has shamefully done since the issue surfaced with the Globe and Mail’s 1st article describing how the AG was allegedly pressured, according to an unnamed Deep Throat. Was JWR Deep Throat?
The “scandal” media constructed resembles the Clinton E-mail controversy in the U.S.: endless, obsessive coverage that borders on Obsessive Compulsive Disorder!
Out of those 20 points of contact JWR had over 107 days, several people suggested that the AG reach out to the DPP to make sure she understood the possible collateral damage and financial effects without a DPA for SNC. Where is that paper trail?
Mr Coyne was so breathless that he perceived future contacts could look like “…a mass swarming of the attorney general’s office and that of the PPSC [Emphasis mine].” Apparently it would resemble the intense lobbying SNC did of government officials.
Coyne further asserts that “…the company’s response to being charged with serious crimes was not to fight the charges in court, but to fight them in government: to lobby the politicians, to attempt to intimidate the prosecutors, to arrange calls between old civil service chums. “
Mr Coyne incomprehensibly doesn’t get or doesn’t care that corporations have a duty to their employees and shareholders to fight for the company so the many points of contact (Lobbying) with the Liberal Party, the Opposition Parties, and many government officials is completely normal. It’s certainly not a “swarming”!
As a long time media pundit and columnist, Mr Coyne, like most of the Canadian media covering this issue have completely blown “pressure” out of proportion and are acting like immature teenagers on the prowl for their next hot tip to do more breathless gossiping.
If Jody Wilson-Raybould couldn’t take 20 points of contact that represented lawful advocacy on behalf of thousands of innocent Canadians, and which most of her staff took, she needs to quit because she isn’t fit to be an MP and hasn’t a clue what real pressure is.
Did Jody Wilson-Raybould understand her role as attorney-general?
“Advocacy in the adversarial process does not undermine independence. In fact, the public interest is best served by ensuring that the decision-maker has meaningfully examined the conflicting positions and has been exposed to a comprehensive review of all relevant considerations.
… rather than address, assess or weigh the competing positions, the attorney-general appears to have reflexively deferred to the DPP and abdicated her responsibility for vigorous and independent oversight.”
Brian Greenspan is past president of the Criminal Lawyers’ Association, founding chair of the Canadian Council of Criminal Defence Lawyers and the recipient of an honorary doctor of laws from the Law Society of Ontario.
https://www.theglobeandmail.com/opinion/article-did-jody-wilson-raybould-understand-her-role-as-attorney-general/
Details cont. in 2nd blog post on Shawcross Doctrine, DPAs, SNC
CAT ARMAGEDDON
While media gaslighting has taken over #cdnpoli on the Twitterverse, the opposition keep throwing dead cats on that table after each Justice committee meeting concluded. Media dutifully laps it up (pun intended) and runs with it.
Instead of dealing with facts more fulsomely that several witnesses have countered JWR’s breathless claim of being under “pressure”, media reports that the liberal-dominated Justice Committee over-ruled opposition members’ motion to re-call JWR as a witness! Not True! The Justice committee never discusses which witnesses to call in a public setting. It’s always done in-camera so that will be done on March 19th, as previously scheduled. After each meeting, Media fail to call opposition members out for throwing dead cats on the table. Alternative Facts thus thrive in our post-truth world, courtesy of the media.
The last dead cat Lisa Raitt threw after the PCO’s testimony in the Justice Committee was questioning Mr Wernick’s role within another Parliamentary committee that will monitor whether outside interference in our election is occurring. Rait doesn’t believe Mr Wernick “is capable of being non-partisan when it comes to assessing whether or not something is harming one party versus another….”!
Apparently, Conservative and NDP members didn’t like Wernick’s testimony so both want him removed from his position. Sigh… losing critical thinking skills is not a good look for our politicians. If the “something” are Russians, does Rait believe it won’t benefit the Conservatives like it was intended to and did in the U.S.?
One reason Hillary Clinton lost to Trump was because McConnell wouldn’t let Barack Obama tell the Americans that the Russians were interfering in the election & favoring Trump. Does Rait honestly believe Wernick wouldn’t blow the whistle? Oh right, she doesn’t want him to blow the whistle on interference. Sigh…
The JWR “pressure” narrative the media is obsessed with is Gaslighting on steroids. 6 months to go before the election and Canada’s Cat Armageddon is coming. One of the biggest dead cats on the table in the 2015 election was the Barbaric Cultural Practices policy the Conservatives trotted out together with the snitch line for reporting it.
RESOURCES / REFERENCES
Andrew Coyne:
Why fight criminal charges in court when you can lobby?
Was SNC-Lavalin denied a deal all because of three simple but misunderstood words?
Opinion: The origin of the phrase ‘national economic interest’ had nothing to with protecting jobs
It looks like many of us got this wrong about “national economic interest” including the DPP and the AG. While I may have been originally wrong on this blog in the way I interpreted it, I called it that jobs (“JOBZ”, as defined by Andrew Coyne were not “expressly precluded from consideration”) and were critical to include in determining DPA eligibility!
Further, it reinforces my opinion that JWR abrogated her duty in not consulting widely before deciding not to over-rule the DPP on not granting a DPA for SNC!
HTML: Shawcross Doctine by Anthony Lemke:
A question for constitutional scholars. Twitter below:
DPA: Criminal Code Link: What is a Deferred Prosecution Agreement
Power of the Attorney General to intervene in proceedings
A deferred prosecution agreement is not what you think it is
“A DPA is not a way to get a crooked company off the hook: It is a way to make sure it is rehabilitated, watched, and financially punished….
All of that must be judicially approved and monitored. Should one of the long list of conditions be not respected, then criminal prosecution would continue, since it is only deferred as long as the terms are complied with. Individuals involved in any scheme, too, are personally prosecuted in a criminal court. In other words, DPAs aren’t soft on corruption – they’re ways to ensure a company has cleaned up and pays the public for its misdeeds.”
NOTE: DPA is a sure thing. A prosecution is not!
Twitter thread: Wilson-Raybould “systematically” refused repeated invitations to testify….
Wilson-Raybould snubbed Senate committee on corporate corruption bill
“The committee held extensive hearings last May and heard from an array of expert witnesses, including Justice Department officials, who suggested that some questions were best put to the minister of justice. The committee invited Wilson-Raybould but she did not show up. In her stead, the government sent her parliamentary secretary, Liberal MP Marco Mendicino, and Public Services Minister Carla Qualtrough.”
“It’s very unusual to study a bill, especially in the criminal domain, and to not have the minister responsible appear before the committee,” Conservative Sen. Pierre-Hugues Boisvenu observed at the time. “I would like to know why the minister of justice is not here herself.”
Great twitter thread below. Also available as HTML
MUHC superhospital: SNC-Lavalin sues former CEO for millions
“The lawsuit accuses Pierre Duhaime of “tarnishing the excellent reputation” SNC-Lavalin “enjoyed in Quebec and throughout the world.”
The lawsuit is seeking that all parties reimburse their share of the $22.5 million that was embezzled, and pay $12.5 million in compensation for tarnishing the company’s reputation and $5 million in punitive damages.”
DPP is Katherine Roussel:
Top prosecutor defends independence and decision to prosecute SNC-Lavalin
This is why the AG abrogated her duty to consult: the DPP was wrong about SNC not qualifying for a DPA because “The prosecutor must not consider the national economic interest….” That only applies if Canada would benefit economically over other OECD countries and they are not in the picture.
DMOJ, Nathalie G. Drouin:
Deputy Minister of Justice – Opening Remarks at the House of Commons Committee on Justice and Human Rights
“My opening remarks will address my role and responsibilities as Deputy Minister of Justice and Deputy Attorney General of Canada, my professional relationship with the Honourable Jody Wilson-Raybould and my chronology of events.
JWR’s Testimony: What Jody Wilson-Raybould said
JWR’s Chief of Staff in conversation with Mathieu Bouchard and Elder Marques from the Prime Minister’s Office.
“They said that they understood the individual Crown prosecutor wants to negotiate an agreement, but the director (of public prosecutions) does not …They hear that our deputy of justice thinks we can get the (Public Prosecution Service of Canada) we should get some outside advice on this.” [Emphasis mine]
Why SNC-Lavalin deserves to avoid prosecution
“The decision [to grant a DPA] is an extraordinary one, requiring the delicate balancing of the legal, social, and economic impacts of forcing a trial and, potentially, a conviction against a company that provides jobs, benefits and pensions to thousands.”
The what-ifs of SNC-Lavalin
“If SNC-Lavalin were to leave, what would it mean to infrastructure development in Canada? It would reduce competition for major projects in Canada….”
Michael Wernick’s part in the SNC-Lavalin affair means he shouldn’t be trusted to sound alarm on election meddling, opposition MPs say
This Dead cat example is a Strawman and non sequitur. It doesn’t follow from the testimony just because partisans claim the PCO is partisan. It’s irrelevant to his position on this committee: “Michael Wernick is the most senior member of a five-person panel tasked with alerting Canadians to the kind of foreign meddling seen in recent elections in the United States, the United Kingdom, France and Germany.”
It’s the Canada’s security and intelligence community’s duty to detect interference while “Wernick’s panel would be responsible for assessing the intelligence and deciding whether or not to notify the public.”
Canada’s no-sex, no-money scandal could topple Trudeau
“Many countries would be jealous of a scandal that went no further than a prime minster asking another minister to do something she is legally entitled to do, Goldenberg said. “
OECD Anti-bribery treaty with Canada
Some talking heads (pundits), including NDP, CPC, etc., claim OECD is “monitoring Canada” because of JWR’s testimony. The opposition and pundits need to get a grip – it’s a dead cat on the table – Canada reports to the Committee! Moreover, it’s Orwellian: we are a sovereign nation.
Below is the 2nd twitter thread of Ishat Reza, a former OECD Public Sector Integrity official, ex civil servant and Canadian lawyer. Her 1st Twitter thread here.
Ishat Reza 2nd Tweet thread in HTML
Ishat Reza’s 1st Tweet thread in HTML
Dead cat strategy: How Lynton Crosby (and a dead cat) won the election
“There is one thing that is absolutely certain about throwing a dead cat on the dining room table – and I don’t mean that people will be outraged, alarmed, disgusted. That is true, but irrelevant. The key point, says my Australian friend, is that everyone will shout, ‘Jeez, mate, there’s a dead cat on the table!’ In other words, they will be talking about the dead cat – the thing you want them to talk about – and they will not be talking about the issue that has been causing you so much grief.”
Gaslighting
““That never happened; you must be imagining it.” “Everyone agrees with me—you’re overreacting.” “You know no one else thinks that way, right?” If these sound like a familiar refrain, you may have been the target of “gaslighting,” a term blowing up like, well, a lighter thrown into a puddle of gas. A form of emotional abuse, gaslighting is dominating the headlines and social media, having been thrown around by everyone from pundits to columnists to late-night comics. “
The chief Gaslighter in the U.S. is Donald Trump. However, here in Canada, the media tells us what’s important and how to think about it.
Lie Tracker 
Excellent article and outline. We need more of these. Keep up the good work.
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Great work Elke!
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