Law Matters | Spring 2019

Political Governance



As Amy Kishek aptly tweeted: is “[a]nyone else struggling with work/life/political scandal balance?”

Recent months have been dominated by discussion of the SNC-Lavalin scandal, and its fall out. As background, SNC-Lavalin was charged with corruption and fraud. The Liberals won the federal election, shortly after which Prime Minister Justin Trudeau named Jody Wilson-Raybould as the first Indigenous Attorney General of Canada. The Liberals proposed Criminal Code revisions permitting remediation agreements, which SNC-Lavalin lobbied for. The public prosecution service declined to negotiate a remediation agreement with SNC-Lavalin. Contested discussions amongst various actors ensued regarding the merits of negotiating such an agreement, which Wilson-Raybould could influence as Attorney General. Trudeau shuffled his cabinet, including moving Wilson-Raybould to Veterans Affairs (widely seen as a demotion). And then, the tipping point: the Globe and Mail reported that the Prime Minister’s Office interfered with Wilson-Raybould regarding the prosecution of SNC-Lavalin; Trudeau cited Wilson-Raybould’s continued presence in cabinet as demonstrating the absence of any such interference; the next day, Wilson-Raybould resigned from cabinet; Trudeau retorted that, if Wilson-Raybould felt undue pressure, she had a duty to report it; Gerald Butts — Trudeau’s principal secretary — resigned from the Prime Minister’s Office days later; the Liberal Party voted down an opposition motion calling for a public inquiry; various leaks, suspected to originate with the Prime Minister’s Office, sought to discredit Wilson-Raybould; Wilson-Raybould released a secret recording of her conversation with the country’s top bureaucrat to corroborate her perspective; Wilson-Raybould and Dr. Jane Philpott — who was critical of Trudeau — were both ejected from the Liberal caucus; Andrew Scheer — the leader of the opposition Conservative Party — called the scandal “corruption on top of corruption on top of corruption”; and, most recently, Trudeau provided Scheer with a letter notifying him of a potential libel claim, raising concerns about silencing political discourse. *Gasps for air*

It’s been a wild ride, and it’s far from over.

The polarization has been palpable; everything seems contested. The appropriate considerations for a remediation agreement; the relevance of identity (e.g., Trudeau being a white man and Wilson-Raybould being an Indigenous woman); the ethics and legality of Wilson-Raybould’s private recording — both sides are advanced repeatedly, and passionately, in the battlegrounds of duelling op-eds and Twitter threads. This edition of Law Matters joins the fray.

We are delighted with the contributions in this edition on Canadian political governance. Leonid Sirota and Mark Mancini detail how the SNC-Lavalin scandal shows both the strengths, and weaknesses, of the Canadian model of responsible government. David Slavick interrogates how, while the SNC-Lavalin scandal is legally interesting, it is not legally scandalous, but rather, an unavoidable by-product of the grey areas inherent in law and politics. Christina Gray interviews Joshua Nichols to discuss fundamental questions about Canada’s assumed constitutional architecture and its relationship with Indigenous sovereignty — a fascinating exercise of, in my view, Critical Aboriginal Theory, which questions the foundational legitimacy of Canada’s current legal relationship with Indigenous people. Further, I sat down with Mike Morrison and Emma Stevens — the founder and manager of Mike’s Bloggity Blog — to discuss the interplay of journalism, social media, and government accountability. Lastly, Nancy Carruthers explores the ethical questions raised by judicial return to practice, yet another dilemma implicated in the SNC-Lavalin scandal by virtue of Wilson-Raybould retaining former Supreme Court Justice Thomas Cromwell to advise her on the scope of privilege.

This scandal is not dying down. Indeed, many view Trudeau’s handling as playing an aggravating role in the scandal’s seeming immortality. No matter your instinct, however, it is indisputable that the SNC-Lavalin scandal raises complex questions about governance, ethics, and identity. We hope that these contributions trigger further reflection on these many fascinating issues.

Joshua Sealy-Harrington
Editor, CBA Alberta Law Matters