In recent weeks the news headlines have been occupied by the story of Canada’s former Attorney General and Justice Minister Jody Wilson-Raybould and the alleged interference by the Prime Minister’s office in the criminal prosecution of Montreal-based engineering and construction firm SNC-Lavalin. Ms. Wilson-Raybould has alleged that the PMO put inappropriate political pressure on her to review the decision whether to proceed with a traditional criminal prosecution against SNC-Lavalin or to proceed with a Deferred Prosecution Agreement, a form of alternative measures, rather than a traditional prosecution. Aside from whether or not these allegations are true and whether they amount to inappropriate political interference in the justice system, what I believe this affair really highlights is how well the Canadian justice system is set up to protect the rule of law and the independence of prosecutions in Canada.
The SNC-Lavalin affair illustrates that in Canada we have a system that is set up to prevent overt political interference with prosecutorial discretion. Further, when it looks like that line may have been crossed it is a front-page news story that can threaten to unravel the authority and confidence of the governing political party. This type of political interference and influence is so common in other countries that it is actually built into systems of governance. Perhaps surprisingly, this is not something that is solely built into the systems of dictatorships, countries with emerging democracies, or overt corruption issues. Political interference is built into the justice system of the United States of America.
In the U.S., most states and local jurisdictions’ head prosecutors are elected to office. They are at the whim of the electorate. Public perception of decisions they make in directing prosecutions – and even their ability to secure convictions – will determine whether they keep their job. U.S. prosecutors are politicians. The way that judges get appointed and stay appointed is more complicated but it involves elections. Some judges are appointed, others are elected, but often, even the appointed judges must seek to keep their appointments through retention elections. Thus, in the U.S., most judges - the ultimate decision makers - are at the mercy of the voting public. They, too, are effectively politicians.
What this means for the U.S. justice system is that overt involvement and interference of political considerations in prosecutions is an everyday reality. If a state-level prosecutor had a choice to defer a criminal prosecution against a domestic company that employs 9000 people – when the allegation did not involve loss of life and criminal negligence – any other choice would be political suicide. In the U.S. that decision would never have to reach the level of Congress, the Senate or the White House. I believe that the decision to defer the prosecution would be made, with little controversy, by a district attorney. If the decision ran contrary to public opinion that prosecutor might pay the price at the next election. The political accountability of prosecutors in the U.S. greatly reduces the likelihood of any interference from congress, the Senate or the president. I believe that something like the SNC-Lavalin affair would never be front-page news under the U.S. system.
However the SNC-Lavalin affair ends, I believe this matter is a good reminder of how balanced the Canadian justice system is. The affair points out the division of powers between the Prime Minister’s Office and the office of the Attorney General. It highlights that Canada’s Attorney General is meant to be independent, and is not to be unduly pressured, even by the Prime Minister. No system of justice is perfect, certainly including ours, but SNC-Lavalin illustrates that our justice system was designed to maintain prosecutorial independence. I believe that prosecutorial independence is key to the best chance of consistently fair and just outcomes of criminal investigations.