For over two months now the Trudeau government has come under heavy scrutiny under suspicion of pressuring Jody Wilson-Raybould, ex-attorney general, to invoke a deferred prosecution agreement that would act as a corporate plea deal for Montreal-based engineering giant, SNC-Lavalin.
Many are throwing vitriol at either of the two principal actors in the debacle, Justin Trudeau and Wilson-Raybould on fairly obvious partisan lines, but what many have not taken into consideration is the institutional system that allowed the scandal to spiral out of control to the size it has now.
Craig Jones is a law professor at TRU who has previously worked in the British Columbia Ministry of Justice and Attorney General. Jones sat down with The Omega to talk about some of the back-end features that ultimately facilitated the mess the Liberals currently find themselves in.
“Over the last 30 or 40 years, attorney generals offices have gone from basically a handful of lawyers to being massive government agencies as they’ve taken on more and more ministerial roles and that makes them inherently more political then they have been previously,” Jones explained. “When I was at the British Columbian AG’s office there were around 500 people. They’ve become huge institutions and as a consequence of that because there’s a concern that, one of the roles of the attorney general is overseeing prosecutions. The concern is that prosecutions might then become political fodder.”
The attorney general, at the end of the day fundamentally has the say as to what cases are prosecuted by the Crown.
“I was doing a polygamy trial and that came as a consequence of the attorney general of the time, Wally Oppal, overriding the decisions of the prosecutors who decided not to prosecute anyone and Wally said, ‘I don’t like that, so I want you to appoint a special prosecutor’,” Jones said as to how that manual override works in actuality.
Problems arise in the case of how the system is organized in Canada federally when the attorney general’s office operates, not independently of the government, but in accordance with the Ministry of Justice. The Ministry’s function is essentially to act as legal counsel for the Canadian government. But Jones points out that having the attorney general’s office completely severed from the Canadian government can also be problematic.
“The difficulty with a fully independent prosecutorial service is that it’s not accountable and do you really want some prosecutor that no one’s voted for deciding on a whim who to prosecute and who not to prosecute,” he said.
“The complication, in this case, is no one has ever really examined since we’ve had this new model how much politics is appropriate in that attorney general’s override decision.” Jones added, “I think it’s completely appropriate for the Prime Minister or anyone else to say, ‘Look this is a powerful company, there might be jobs on the line. It’s important for us to look at it economically.’ Where it probably crosses the line, at least into very distasteful territory if not ethically and maybe even legally questionable, is if the Prime Minister says, ‘We’re going to lose an election if you don’t override this prosecutorial decision’.”