On SNC-Lavalin, we may never know why we may not know what we may not know

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Will we ever really get to the bottom of the SNC-Lavalin affair? Will the Prime Minister, or any of the officials acting at his behest, ever be properly held to account?

No, of course not. This is Canada, after all, and if there is anything this affair should have taught us – as if it were not already abundantly clear before – it is that we lack either the means or the will to seriously investigate charges of wrongdoing in the country’s highest office.

From the start – from the day, in February, 2019, that The Globe and Mail reported the Prime Minister and his advisers had engaged in a months-long campaign to pressure the then-attorney-general, Jody Wilson-Raybould, into sidelining the prosecution of SNC-Lavalin (now AtkinsRéalis), a large Quebec engineering firm with a long history of contributions to the Liberal Party and an even longer history of corruption – the government has warded off all attempts to inquire further with a smokescreen of evasions, deflections and outright lies.

Worse, none of the institutions of accountability that, in a functioning democracy, might be relied upon to pierce the fog have proved willing or able to do so. Two parliamentary committees failed to make much headway, shut down by their Liberal majorities before they had heard from all of the relevant witnesses or seen all of the relevant documents.

The federal ethics commissioner did better, issuing a scathing report that found the Prime Minister had violated the Conflict of Interest Act, but acknowledged in the end that his findings were incomplete, barred as he was from hearing from nine witnesses who, though they had by their own account information relevant to his inquiries, were nevertheless prevented from testifying by cabinet confidence orders.

And now we find that the RCMP, though it opened an investigation, of sorts, into whether what was clearly improper interference with a prosecution crossed the line into obstruction of justice, wound it up four years later without telling anyone, and without interviewing more than a handful of witnesses or even attempting to obtain the evidence covered by that expansive cabinet confidence edict.

Oh, and just to close the loop: Though Conservatives on the Commons Ethics committee invited RCMP Commissioner Mike Duheme to explain the force’s reasoning this week, he was prevented from testifying, thanks to a timely motion to adjourn supported by the committee’s Liberal and NDP members. You may not know why you may not know why you may not know whether your Prime Minister and senior members of his government were engaged in a criminal conspiracy.

The only reason we even know there was an RCMP pseudo-inquiry is because Democracy Watch, the ethics-in-government gadflies, made a request for documents under the federal Access to Information Act. Again, this is Canada, so most of the documents requested were withheld pending further review; several of the documents that were released, including the ones containing the legal opinion that presumably guided the force’s decision, were wholly or partly redacted.

But what was released paints a picture of an investigating force that was curiously incurious about the whole affair, inclined at every point to accept the government’s assurances or to put the most favourable interpretation on events, or at any rate not especially inclined to dig further.

Admittedly, obstruction of justice – defined, under Section 139.2 of the Criminal Code, as a deliberate attempt “to obstruct, pervert or defeat the course of justice” – is hard to prove. It is not enough to show that justice was obstructed: It has to have been done with a corrupt intent.

But no one is suggesting that the known facts, damning as they are, are sufficient to convict anyone, or even to charge them. The question is why the force did not even feel obliged to properly investigate – a question that seems even more pertinent after you’ve read its explanation.

The key document is an “Assessment Report,” from February, 2021, prepared by the RCMP’s Sensitive and International Investigations unit. In the main, it offers three reasons for its reluctance. One, Ms. Wilson-Raybould herself did not think a crime was committed: She testified before the Commons justice committee that, while the attempts by the Prime Minister and others to pressure her to order federal prosecutors to offer SNC-Lavalin a “remediation agreement” – essentially, a kind of plea bargain – were inappropriate and unethical, they were not criminal.

Two, though the ethics commissioner’s terms of reference required him to shut down his inquiry if he discovered evidence of a crime having been committed, he did not do so – from which the force inferred no crime had been committed. As Commissioner Duheme told the CBC this week, “he had access to more information than we had,” a fact that did not seem to trouble him as much as it might.

And three, well, it would be hard. To get at the documents the government had refused to release would require either a production order or a search warrant, and to get these would require the force to collect further supporting evidence, beyond the survey of the public record and the interviews with four witnesses they had conducted to date. So, that was that. They couldn’t investigate because they wouldn’t investigate because they hadn’t investigated.

The reliance on Ms. Wilson-Raybould’s opinion – is the force in the habit of outsourcing investigatory decisions to non-investigators? – is especially astonishing, in context. Asked in committee whether she thought it was obstruction of justice, she replied: “It wasn’t interference, because I never let it happen.” (Emphasis added.) The RCMP report takes up the refrain: “no obstruction took place because she did not let it happen.”

It is true that to make a case for obstruction of justice requires that it be deliberate. It does not require that it be successful. It is enough that it was “attempted.” Moreover, as the report notes, Ms. Wilson-Raybould later told the RCMP that “while she had no evidence of criminal wrongdoing when she testified before the Committee, information she read from [the Ethics Commissioner’s] report has given her cause for concern.”

No kidding. Consider what was already known before then-ethics commissioner Mario Dion’s 2019 report. Prosecutors had already ruled the company ineligible for a remediation agreement, for a host of valid reasons. Ms. Wilson-Raybould, as attorney-general, was obliged by convention to overrule her prosecutors only in the most extraordinary circumstances; indeed it had never been done. Having carefully reviewed the prosecutors’ decision, she saw no reason to set the precedent.

And, by an even stronger convention, that should have been that: If an attorney-general may only rarely overrule her prosecutors, she may never be directed in such matters, or even pressured, by her cabinet colleagues, the prime minister included. Our whole system of justice is founded on the idea that elected officials should not take part in decisions about whom to arrest, or whom to prosecute, or whom to convict, lest they be tempted to reward their friends or punish their enemies. The attorney-general is a very limited exception, and the limits are themselves telling: She may only direct a prosecutor in a case after putting it in writing, and after making it public. And it is strictly her decision.

Yet what in fact happened? The legislation providing for remediation agreements had only just been passed, after a furious lobbying campaign by – you guessed it – SNC-Lavalin. There was even a provision making it retroactively applicable to companies that, like SNC-Lavalin, had already been charged. The prosecutor’s decision not to apply it was the subject of another furious lobbying campaign. And Ms. Wilson-Raybould’s decision not to overrule the prosecutor, yet a third.

But that was nothing compared with the pressure campaign brought to bear on Ms. Wilson-Raybould. No fewer than 11 different officials, from the Prime Minister on down, in a series of meetings, memos and telephone conversations, attempted by means of varying degrees of subtlety to change her mind. In some of these discussions, explicitly political considerations were raised: the impact, if SNC-Lavalin were convicted, on upcoming elections, provincial and federal. In the last, a telephone conversation with the then-clerk of the Privy Council, Michael Wernick, strong hints were dropped that her job was at stake. As indeed it proved to be, scant weeks later.

All this, as I say, was known before the ethics commissioner’s report. What was not known, and what his report revealed, was the surreptitious campaign, again involving multiple government officials, not just to pressure the Attorney-General, but to go around her: in the commissioner’s words, to “circumvent, undermine and ultimately attempt to discredit” her lawful authority, even as the matter was before a federal court.

In some cases information was withheld from her. In others, she was given misleading information. That government officials would have conspired to keep the country’s chief law enforcement officer in the dark on a matter of law enforcement is bad enough. But, the commissioner’s report showed, they did so in collaboration with officials from SNC-Lavalin – the object of a pending criminal prosecution!

Does all of this add up to obstruction of justice? That is not for me to say. But it sure seems like the sort of thing one might want to follow up on. Yet here we are, five years after the events in question, barely the wiser: unable to find out why we cannot find out what we cannot find out. Democracy Watch is calling for a public inquiry, and they are right to do so.

The RCMP’s conduct is one subject that cries out for examination. It may be that, in the presence of all the facts, their presumptive judgment would be retroactively vindicated, but it is far from clear that we should just accept it in their absence. Certainly the force is not entitled to the benefit of the doubt. The question of whether it is truly independent of the Prime Minister’s Office long predates this government, and has only been reinforced by such episodes as the alleged political interference in the investigation of the 2020 mass murder in Nova Scotia, or the investigation and (ultimately dropped) prosecution of now-retired vice-admiral Mark Norman.

But the issues raised go far beyond the RCMP. When neither the police, nor the ethics commissioner, nor parliamentary committees have access to the evidence they need to investigate allegations of wrongdoing by those in high office – an insufficiency that has been demonstrated time and time again – it is long since time for a more wide-ranging inquiry: an inquiry into why we may not inquire.