Testifying in front of a parliamentary committee Wednesday, former attorney general Jody Wilson-Raybould described the alleged attempts by the prime minister’s office to interfere in the prosecution of SNC-Lavalin as “inappropriate but not illegal.”
In the wake of Wilson-Raybould’s remarks, Conservative leader Andrew Scheer called for an RCMP investigation into “numerous examples” of obstruction of justice.
But is what allegedly happened truly obstruction of justice? Obstructing justice is defined under s. 139 of the Criminal Code as, “Everyone who willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding.”
The most important part of that provision is the word “attempt” — the obstruction does not have to be successful, says Peter MacKay, who was attorney general in Stephen Harper’s Conservative government from 2013 until 2015 and is now a partner at Baker McKenzie LLP in Toronto.
“It seems to me quite obvious what was being attempted here,” he says. “Did obstruction occur? It’s not ‘Did it occur?’ it’s’ Were there attempts? And the attempts, in my opinion and these are my words, were persistent and pernicious and wilful.”
MacKay says his government put the director of public prosecutions out of the attorney general’s immediate purview, to avoid situations like the one unfolding in Ottawa now.
“Everybody seems to understand that politicians don’t phone judges, but I would strenuously suggest the same is true of politicians phoning prosecutors,” he says.
In Wilson-Raybould’s testimony, she told a story of a relentless PMO, pressing her to find a way around the decision by the director of public prosecutions not to allow SNC-Lavalin a remediation agreement, often citing partisan political considerations for the move and persisting after the then attorney general repeatedly refused.
While being questioned by NDP MP Nathan Cullen, Wilson-Raybould said that an attorney general has never issued a directive on a specific case and that for her to do so would have been illegal. But as far as the interference that took place with the independence of the country’s highest-ranking law enforcement official, that was inappropriate but not illegal, Wilson Raybould testified.
The fact that she, as attorney general at the time, did not view the conduct by the PMO as illegal is important, says Chris Murphy, a criminal lawyer in Toronto.
“I did not see anything yesterday that would lead to a reasonable prospect of conviction on obstruction of justice. This is more of a political issue than it is a criminal issue, he says.
After the testimony Wednesday, joining Scheer’s chorus of opposition condemnation, NDP leader Jagmeet Singh said, “The only way to get to the bottom of this” would be a public inquiry.
The problem with a public inquiry into activity that may have violated a Criminal Code provision is that inquiry has the potential of interfering with the criminal investigation, says Lee Akazaki, a partner at Gilbertson Davis LLP in Toronto.
“For the same reason that you would not want political interference with the judicial proceedings that are taking place in the SNC-Lavalin case, you don't want a public inquiry to compel people to say things that might prejudice a police investigation,” he says.
Whether it is an inquiry or a police investigation into possible obstruction of justice in the alleged political interference by the PMO, Andrew Flavelle Martin, assistant professor at the Peter A. Allard School of Law at the University of British Columbia, says that either of these exercises are unlikely to uncover anything that the parliamentary committee isn’t uncovering. But Martin, who is the OBA Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Research, says that what happened was “clearly” a violation of constitutional law. The attorney general has to be “completely free” to decide on criminal prosecutions and, while she can consult with her cabinet colleagues, they cannot pressure or direct her, he says.
“Given the violation, the appropriate fallout is a constitutional crisis in which the prime minister resigns. That’s the textbook answer. That's obviously not going to happen,” Martin says.
Normally, the attorney general is required to resign, but Martin says he is sympathetic to the fact that Wilson-Raybould said she thought her successor would simply follow the orders she was resisting.
She felt that “the best way she could protect prosecutorial independence was to stay attorney general. But the classic answer is that the attorney general should resign, disassociate herself from what happened and to inform the public that something serious has happened,” Martin says.
Wilson-Raybould’s testimony included a text message from Jessica Prince, Wilson-Raybould’s chief of staff, in which Prince alleges the prime minister’s principal secretary, Gerald Butts said to her: “There is no solution here that doesn't involve some interference.” This is evidence that the PMO had a solid understanding of the rules and chose to defy them, Murphy says.
“That to me is really the smoking gun,” he says.
“It just portrays an enormous amount of arrogance to believe that you can say that to the chief of staff of the attorney general of Canada and not worry about the consequences.”
Correction, March 10, 2019: An earlier version of this story incorrectly attributed to Gerald Butts, a text message which said, "There is no solution here that doesn't involve some interference," when the text message was actually from Jessica Prince, who was saying Butts had made that statement to her verbally.