A political Rubik’s cube if ever there was one ~ Hugh Holland

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For decades, Prime Ministers of every stripe have been trying to reconcile differences with Canada’s First Nations that many believe flow from the Indian Act of 1876. That was, perhaps more than anything else, Justin Trudeau’s primary goal. To that end, he appointed Ms. Jody Wilson-Raybould, a prominent indigenous lawyer, to be Minister of Justice and Attorney General, one of the highest offices in the land.

Enter journalist Robert Fife, who relishes making governments squirm. Fife plays no favourites with either Liberals or Conservatives. Fife’s article in the Globe and Mail alleged that the Trudeau government put un-due pressure on the Minister of Justice to accept a non-prosecution agreement for SNC-Lavalin, one of Canada’s biggest and most internationally important companies. Apparently, the Minister refused and was reassigned ostensibly for that and perhaps other reasons. The Minister could be technically right.

But Canada does not have many companies with over 50,000 employees and several (Nortel, Stelco) have already been lost. The proposed type of agreement is used in the UK, Australia and USA. Such agreements enable courts to punish individuals who engaged in corrupt behaviour, without risking severe damage to the company itself. For several days, the debate has been about who said what to whom and with what tone, but Canada’s top civil servant who has served both parties for over 37 years, says that was all legitimate advocacy. The experienced Chief Civil Servant could be right.

Next came an article from a legal scholar who said Ms. Wilson-Raybould had a job that can be impossible. The job of the Minister of Justice is to advise and ensure the legality of proposed legislation. The job of the Attorney General is to act as the government’s defense lawyer. To avoid a conflict between these two roles, such as exists in the SNC case, those jobs are occupied by two individuals in the UK justice system that Canada’s system was patterned after. The legal scholar could be right.

Coincidentally, a CBC report outlined that Minister Wilson-Raybould disagreed with some parts of the legislation being developed by Minister Caroline Bennet that would replace the 1876 Indian Act with a new modern structure for indigenous government. PM Trudeau had split the very challenging indigenous file between two competent ministers to try to accelerate progress that had alluded many past governments. While the 634 First Nations chiefs like to complain about the Indian Act, it does protect their jobs and gives them leverage by making it almost impossible to get consensus on anything. For example, past AFN chief Shawn Atleo resigned in frustration, after months of negotiations, when he could not get the 634 chiefs to agree to the reasonable terms of a multi-billion-dollar education package offered by the Harper government. Ms. Wilson-Raybould could indeed be torn between loyalties.

Looming in the background is the possibility that the Minister of Justice/Attorney General may soon have to decide on who has jurisdiction to approve the Trans-Mountain pipeline and Canada’s biggest ever natural gas project in northern BC. The elected chiefs want the gas project built, but some hereditary chiefs object and have been blocking construction sites. Ms. Wilson Raybould’s father is a hereditary chief. Was she reassigned to relieve her of having a conflict of interest? That reassignment could have been the right and humane thing to do.

There are times to stand on principle and times to be pragmatic. A head office is much easier to move than a plant. But along with head offices go high-value jobs and tax revenue from financial, legal and consulting services, and contributions to universities, research institutions, etc.

More questions come to mind:

  1. Why would the prosecution service and the Minister of Justice be so opposed to extending the same non-prosecution agreement SNC-Lavalin could get if their head office were re-located to their existing branch office 350 kilometers down the road in Albany New York or in Cambridge England?
  2. On the eve of an election, is it possible to set aside partisan politics for the good of one of Canada’s few flagship companies? What will the Conservatives say if the next company to be charged with corruption is in Calgary? What will the NDP say if the next company to be charged is in Vancouver?

This is indeed a Rubik’s cube-grade dilemma for voters. But it will be up to the voters to determine what is in the best long-term interest for Canada.

Hugh Holland is a retired engineering and manufacturing executive now living in Huntsville, Ontario.

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19 Comments

  1. Michael Petropulos on

    Your “political Rubik’s cube argument and the extenuating circumstances that you allude to are just a whole lot more of the smoke and mirrors that people are fed up with. Exactly how many employees does a blatantly corrupt corporation need to have before we turn a blind eye? How corrupt do they need to be and who gets to decide? You seem to have missed the point. The Prime Minister’s Office has interfered with the judiciary, PERIOD.

    • Hugh Holland on

      • Yes, the old law is the law until it is changed, but perhaps in a more normal environment without such a dizzying number of other difficult issues to deal with, JWR and the prosecutor could have suggested a way to slow down until the new law was sorted out. Timing is everything. Certainly, SNC has been troublesome, but now it looks like we have a prosecutor on a vindictive path to be the one to get SNC, and an AJ who feels compelled to back her up.

      • What is the greater good, taking a hard line on one case, or protecting a treasure with over 50,000 good employees? We can all speculate about the ultimate impact on SNC and Canada, but the truth is that in this volatile world, nobody knows for sure, not even SNC. Are you willing to bet money that there is zero risk of losing another flagship company? I am not.

      • Michael Petropulos on

        “The greater good”? Have you forgotten that a convoy of transport trucks arrived in Ottawa just last week? Have you conveniently forgotten that the number of jobs that may or may not be lost in “QUEBEC”, pales in comparison to the jobs that your Trudeau has actually eliminated in Alberta? Again, you have either missed the point or you are just evading it? Our Prime Minister has broken the “Rule of Law”. His cabinet is rife with corruption. But I suppose that is okay if it means saving a relative handful of jobs in Quebec? Sorry, my mistake. I thought that the Rule of Law was really the only thing separating us from the banana republics that a corrupt company like SNC chooses to do business with. That’s no “slippery slope”. It’s a water slide in the middle of January.

        • Hugh Holland on

          Michael, all jobs are important, including the Alberta oil jobs as well as SNC. But right now we are talking SNC. I am still waiting to hear what the Conservatives would do to hasten approval of the TM pipeline, while upholding the latest Federal Court’s ruling. If you believe the rule of law must be upheld, it must be upheld in all cases, not just the ones you want. As required by the Federal Court, the National Energy Board has now made recommendations regarding the impact on marine areas that was missing in their first submission. The proponents are almost finished another round of First Nations consultations as required by the court. What would the Conservatives have done differently?

          • Michael Petropulos on

            As a result of the Liberal sponsorship scandal, the Conservatives, under Harper, introduced tougher legislation needed to stop government corruption; “corruption” being the operative word. I’m still waiting for you to tell us “how many employees does a blatantly corrupt corporation like SNC need to have” before we ignore the fact that Liberal politicians still think that it is o.k. to play judge and jury in their ongoing game of corporate welfare and pork barrel politics. Two wrongs do not make a right but it looks like people are just flogging a dead horse trying to get you to understand that message.

  2. ANYTHING IS BETTER THAN A HARPER CLONE. THE N.D.P. SHOT THEMSELVES IN THE FOOT WHEN THEY CHOSE A LEADER. THE GREEN PARTY IS OBSESSED WITH DOING THE IMPOSSIBLE IMMEDIATELY AND ARE NOT VERY REALISTIC REGARDING OUR ECONOMIC NEEDS TO REMAIN PROSPEROUS. THE CONSERVATIVES WILL ALWAYS BE JUST CONSERVATIVE AND CONTINUE TO SAVE MONEY AT ALL COST. MAXIME BERNIER MAY HAVE THE ANSWER. LETS WAIT AND SEE. THE LIBERALS HAVE A LEADER WHO HAS TOO MANY UNPROVEN IDEAS THAT CAN BE DISASTEROUS IN THE FUTURE. THROWING MONEY AT OUR ECONOMY WILLY NILLY MAY NOT BALANCE THE BUDGET.

  3. While your articles promoting forgiveness for SNCL for breaking the law do make a certain degree of sense from an economic point of view, Hugh, I for one just cannot abide 2 things about this whole mess.
    1. The law was broken. We ran our own business for a time, and I can guarantee you that if we had broken ANY law forgiveness would not be given to us or to any of the other thousands of people who own or work for small businesses. The fact SNCL is big carries absolutely no weight with me. Using the argument that Britain, the US, and Australia have this dispensation law on the books is one reason why Canada put that law in place as well – to even the playing field. It is there to be used under strict circumstances, which do not necessarily apply to SNCL for a variety of reasons (they are multiple offenders, etc.). Also, since even in those countries it is not “mandatory” but “optional” whether to grant a DPA, there certainly is no guarantee that if they were headquartered in one of those other countries, they would qualify for a DPA anyhow – they very well could be rejected there as well.
    2. One has to decide whether to believe Wilson-Raybould or Trudeau. While any government, business, or individual can obviously argue their case to any minister, if one believes Wilson-Raybould’s version, this went well beyond that into the realm of politics to interfere with the justice system for more than 4 months after she told them her decision. If you believe Trudeau, he just did his job and neither he nor any of his staff did anything wrong. And before you once again accuse me of being biased against Trudeau, please remember they are both Liberals and members of the Liberal caucus.
    You are definitely right about one thing – it is a Rubik’s Cube and very confusing to the average person. We will likely never know the full story as judging intent is so hard to do. However no matter whether pressure or suggestion, interference in our justice system by elected officials should never be condoned, and neither should knowingly breaking of the law by corporations.

    • Hugh Holland on

      John, there are many ways to play the game. Lots of (but not all) little guys avoid taxes by taking cash under the table. Lots of (but not all) big guys avoid taxes by hiding their money in offshore accounts. Middle income people who work for a salary can’t do either of those. I was told by a provincial tax auditor that if everyone paid the tax they should pay, the government would be awash in money.

  4. Amazing … how Hugh and other folks in this comment section think it is OK for this Liberal behavior and scandal! … WOW amazing! It’s OK for Liberals to ignore “rule of law”? .. not just one ..but all of them in highest positions of our government? Hypocrites come to mind! A RCMP ‘Crime’ Investigation is required to remove this HUGE cancer from Canada’s political government ASAP!

  5. As you point out, Hugh, the essential problem is that Justice is not separate from Government in our system: Ms. Wilson-Raybould was tasked with an impossible decision by virtue of her “two hats”. Perhaps, after the election, we can entertain splitting these two positions. As the situation existed, not only was she torn between loyalties in this post; but also as the daughter of a hereditary chief vis-a-vis the Trans-mountain pipeline. Could any of us withstood this immense pressure? Yet she held out for as long as humanly possible; seemingly to prevent exactly what happened anyway; the stain on the Liberal Party.
    .
    It is also a tad disingenuous to talk about moving SNCL’s head office to obtain a DPA; as this law was enacted specifically to handle the malfeasance in Libya. And, as you pointed out several months ago, choosing the Eagle Spirit pipeline alternative would have been more palatable to both the aboriginals and the environmentalists.
    .
    Regarding laying all the guilt on the PMO, we have 2 main facts to consider:
    .
    1) the Prime Minister’s Secretary’s resignation; and
    .
    2) Mr. Trudeau waiving Ms. Wilson-Raybould’s duty to Cabinet confidentiality (and tangentially, inviting her back to Caucus.
    .
    How do we reconcile these 2 disparate facts? Apparently, there were as many as 11 Liberals involved in applying pressure for a DPA. Can we intuit from that that the main individual was Trudeau’s Secretary under direct orders? No we can’t. Would prosecution of SNCL led to their bankruptcy? Possibly not, as their international contracts (especially in China) could have kept them afloat. But they would have been banned from bidding on federal contracts for 10 years. This would have resulted in layoffs for approximately 30,000 Canadians.
    .
    Looking at it from the ancient paradigm of “the greatest good for the greatest number” a DPA wins hands down. Encouraging corruption by large companies, however, when the same corruption would bankrupt a small company, opens up a whole new can of worms.

    • I would agree with almost everything you said Bob but would like to point out one thing. While barring SNCL from Canadian contracts would hurt SNCL employees, the construction projects and the resulting jobs will not go away. Whoever gets the contracts will need people to do the work, and many of those people will be the same ones who would have had the jobs if SNCL had won the bid. We would be shifting the jobs from one employer to the next in line.

  6. I have lots of thoughts about this whole mess, so I wrote a piece on it, now posted on the Doppler as well.
    Let me just add one other thing. It is no mystery that the new DPA law just passed last year was rushed through and buried in the Omnibus bill for one reason alone. To help SNC get out from facing more (imminent) criminal trials. The irony is that the conditions put into the new law that defines what situations would qualify for its application were too tight for SNC to actually meet! How inept is that?
    So, instead of passing new legislation to ‘get it right’ (and risk being caught this time doing so explicitly to give SNC a pass), Trudeau opted for traditional Liberal backroom political maneuvers. What he didn’t anticipate was that his highly competent and ethical AG would stand her ground and actually uphold the law as written, and not bow to political interference pressures!
    What a disaster… now everyone loses. Canada’s institutional reputation damaged, Justice dept weakened, JWR smeared and lost her job, SNC’s reputation further damaged, Trudeau’s brand image shattered, the Liberal brand damaged, and now more likely they will get the boot from power in the fall. Incompetence doesn’t do justice to how this was all handled. A sad time in Canadian politics.

  7. Lynn Crowder on

    Glad to read my fellow citizens comments….about missing the point. You know that old adage do good even when no one is watching? I am glad to see it is alive. I was starting to lose myself to despair that so many of my fellow human beings thought differently than I. It has seemed that it is “anything is okay, as long as you don’t get caught”. We have to walk our talk. If the company did wrong….they need to be held accountable. Perhaps we could work together and figure out solutions that might work for all. Redemption is possible. At this point I stand by her.

    • Hugh Holland on

      Lynn, we are not talking about avoiding punishment for SNC. We are talking about a way to appropriately punish the culprits involved without doing undue damage to the company itself and its thousands of other good employees. If a deferred prosecution agreement is good for their competitors in other advanced countries, why is it not also good in Canada. Lets be fair.

  8. All concerned with this issue of deferred prosecution need to read the ground rules for awarding a company with this arrangement for settling their legal problems.
    There are about 8 criteria none of which SNCL meets. Period. They are not eligible so there is no arguement. That is what the chief prosecutor relied upon and also what the AG relied upon.
    The rest is politics.
    That’s why SNCL lobbied so hard and so long. They knew that they were toast legally and needed political intervention to save them.
    The going out of business argument is rubbish. There are others to undertake the future work and other employees to do the jobs.
    SNCL has a very long history of corruption, facts which have been widely published. They deserve no further accommodation.
    Their Liberal and Quebec bedfellows are due for a public tar and feathering.
    If Canada lets this all pass we are all stupid dupes.

  9. Kathy Henderson on

    The PM doesn’t bother with laws or ethics or rules. He is like a kid. Anything he wants he does even when it is questionable or unethical. He has rushed his Bills through giving no one a chance to disagree or discuss. He has whatever he wants since he has been in office. He never did pay us back the $20,000 he used of our taxpayers money for his unethical vacation. He tripled our debt saying the budget will balance itself. Now when another party gets in and has to start cutting programs and making cut backs to try to get the budget back on track all we will hear is whining. No one is going to like what the next party brings to the table because there are some hard things to do. Is Conservative “conservative” with spending? Maybe that is not a bad thing looking at the blatant overspending Trudeau has done and is still doing.

    Should eleven members of parliament be able to get away with putting undue and unethical pressure on another member to get them to change their minds to what Trudeau wants? No. It is sneaky and underhanded and in line with how Trudeau runs the Country. He never answers any questions when asked about anything. Even when the answer is as simple as how many times did he meet with the ethics committee? Why not answer? Trudeau says he is all about Canadians rights and protecting them and then he does the opposite. Trudeau has done so many things that has embarrassed Canada and Canadians I just don’t understand how people can just let those things go and think that he has Canada and Canadians best interest at heart. I haven’t seen it yet and in fact I have seen the opposite.that I could go on but what’s the point. I THINK PEOPLE ARE MISSING THE POINT THAT MS. WILSON-RAYBOLD WAS HARASSED AND WAS BEING PRESSURED TO AGREE WITH SOMETHING SHE KNEW TO BE A CONFLICT WIITH THE LAWS. SHE IS A VERY SMART LADY AND CAN SPEAK A WHOLE SENTENCE WITHOUT AWWWWING IN BETWEEN EVERY WORD LIKE OUR PM DOES.

    • Kathy, your spot on with your assessment. The damage being done to Canada on so many fronts is going to take a decade or more to repair. It’s no laughing matter now.. So sad.

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