Constitutional or Political Crisis? Prosecutorial Independence, the Public Interest, and Gender in the SNC-Lavalin Affair

This paper attends to a central question: was the SNC-Lavalin affair a constitutional or a political crisis? It assesses this question via an examination of three main considerations: (i) an analysis of the principle of prosecutorial independence and related constitutional conventions; (ii) an analysis of competing interpretations of the public interest; and (iii) an analysis of the particular confluence of identity factors that significantly inflected this particular case. This paper suggests that the SNC-Lavalin affair was principally a political rather than a constitutional crisis. Despite this, greater clarity is urgently required regarding the boundaries of politics and prosecutorial independence in the relationship between an attorney general and Cabinet colleagues generally, and in relation to the newly introduced DPA regime specifically. The paper finds that this crisis was one borne of competing legitimate interpretations of key provisions of the DPA regime, of what constitutes the public interest, and of what comprises appropriate and inappropriate political pressure. The crisis was compounded by a communications breakdown between government colleagues and the Attorney General. Further, it was exacerbated by competing understandings of when, if at all, an attorney general’s decision can be said to be final. A gendered and at times intersectingly racist invocation of “pressure” drawn from discourse used predominantly in relation to feminist elucidations of consent and sexual violence infused and confused the constitutional conversation about political pressure and prosecutorial independence. The principle of prosecutorial independence was further muddied in this case by the Attorney General not resigning from her position, and by a lingering question of whether, in her capacity as Minister of Justice, Ms. Wilson-Raybould supported the criminal code provision introducing the DPA. The political, rather than constitutional, character of the crisis was underlined by both former Ministers (Ms. Wilson-Raybould and Dr. Philpott) suggesting that the lengthy public turmoil might have been assuaged or averted if the Prime Minister had apologized. The credibility of the claim of damage to the constitutional principle of prosecutorial independence was undermined, perhaps lethally so, by the assertion that its substance was so meagre that its remedy was an apology. This paper proceeds in five parts. First, it provides a contextual framework for the issues surrounding the SNC-Lavalin affair. Second, it reviews the legislative framework of the newly introduced deferred prosecution regime in Canada. It does so in concert with an analysis of the distinct roles of the Director of Public Prosecutions and the Attorney General, outlining the scope of their roles vis-a-vis their consultation mechanisms, independence, and the processes for consent and intervention on the part of the Attorney General. Third, it examines the constitutional issues that arise in relation to prosecutorial discretion in this case, with particular attention to the constitutional principle of prosecutorial independence and to conventions such as the Shawcross Doctrine (the leading framework governing the relationship between the Attorney General and government colleagues regarding the boundaries of the former’s prosecutorial independence). It additionally considers the remedies of apology versus resignation. Fourth, it asks: what constitutes pressure? Here, it weighs the competing legitimate interpretations of what constitutes the public interest, lawful advocacy and context giving, and the boundaries of the Shawcross doctrine that encircled the developments in SNC-Lavalin affair. Fifth, it examines the confluence of gender and other identity issues that are specific to the case. It does so in relation to social/other media and public discourses that deployed the language of “pressure” (among others) evocative of male violence against women (that at times also tokenized Indigenous culture), and to a claim by Ms. Wilson-Raybould that misogyny was part of the sustained political interference she alleged in her exercise of prosecutorial discretion. It concludes by querying whether the potential remedy, currently under review, of separating the roles of Minister of Justice and Attorney General, is merited, or if other direction or structural reform might better serve to bolster prosecutorial independence in Canada. The paper concludes that the Shawcross line was not crossed, but that greater clarity is urgently required on its boundaries and application. The SNC-Lavalin affair was thus principally a political, rather than a constitutional crisis.

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