One of the hallmarks of a country in which the rule of law is important is that politicians do not comment publicly or involve themselves in criminal matters.
The tradition of not commenting on matters before the courts is a long one known as the ‘sub judice’ convention. Lorne Sossin (as he was before his recent appointment to the Bench) discusses the matter extensively in this article and notes the long history of resignations when politicians violate the convention.
This is one of the reasons that I was surprised to see Steven MacKInnon, MP for Gatineau and a Parliamentary Secretary, appear on Power and Politics and say that SNC-Lavalin is “entitled to a deferred prosecution arrangement….” It is obvious that this matter is before the court in two ways:
- SNC-Lavalin has applied to Federal Court for an order compelling the Director of Public Prosecutions to enter into negotiations regarding a DPA.
- SNC-Lavalin is the subject of criminal proceedings which could lead to negotiation of a DPA. Then, pursuant to s. 715.37 of the Criminal Code, the trial court would have to determine whether the agreement should be approved.
I cannot think of a clearer violation of the sub judice convention.
Mr. MacKinnon’s comments come on top of an ongoing pattern of government involvement in this proceeding. It is apparent that SNC-Lavalin, the defendant, has met with staff members and politicians in the government to discuss these matters. I draw this conclusion based upon the evidence of Ms. Wilson-Raybould and SNC-Lavalin’s filings in the lobbyist registry.
In 1985 Minister Elmer MacKay was removed from the post of Solicitor General after he met with Richard Hatfield, while he was the target of an RCMP investigation into his possession of Marijuana. Mr. Hatfield was tried and acquitted of the charges.
In addition to these meetings, if Ms. Wilson-Raybould’s testimony is accurate, a legal advisor in the Prime Minister’s Office, Mathieu Bouchard apparently contacted the Crown Prosecutor on the SNC-Lavalin file. This despite the clear prohibition on contact with the Director of Public Prosecutions in the Director of Public Prosecutions Act.
The interaction with Ms. Wilson-Raybould between September 4th and her removal from the position of Attorney General is one matter. I will circle back to the propriety of those interactions and whether a remediation agreement was appropriate at a later date. The willingness of member’s of this government to involve themselves directly in the criminal proceeding is another matter that needs to be addressed and condemned separately.