Canada: Prosecutorial Independence Questioned

Note:  Since this post was first written, new criticisms of Canada’s Prime Minister have emerged.  

Many of us work in countries that are trying to improve the integrity of their judges and prosecutors.  Recent events in Canada show that integrity is a concern everywhere – not just in developing or transitioning countries.

Canada’s Conflict of Interest and Ethics Commissioner has found that the Prime Minister of Canada contravened Canada’s Conflict of Interest Act by interfering in a criminal prosecution. The story begins with allegations of fraud and corruption brought against Canada’s engineering giant, SNC Lavalin, for paying bribes to Libyan officials between 2001 and 2015. At first, only individual executives of the company were charged.

Then, in 2015, prosecutors in Canada brought charges against the company itself, alleging payment of $48 million in bribes. These charges are pending. Allegations that in 2018 the Prime Minister improperly interfered in the prosecution by seeking leniency for the company resulted in a complaint to Canada’s Conflict of Interest and Ethics Commissioner.

The Commissioner’s report, just released on August 14, sheds a very bright light on events that might have otherwise slipped quietly into the shadows. You could say that Canada’s justice system worked. The Attorney General and the prosecutors were not in fact deterred from their prosecution. The charges against SNC Lavalin will proceed. The Commissioner’s finding that the Prime Minister acted improperly in trying to influence the prosecutors was prompt, impartial, tightly reasoned and abundantly documented. Transparency prevailed.

Or did it? The Commissioner’s report does not make for reassuring reading. The least critical conclusion to be drawn from the actions of the Prime Minister, Ministers and officials, is that they showed a deep void of understanding of a basic principle of the rule of law. Prosecutors, like judges, are expected to be above partisan concerns. As one our Canada’s great criminal lawyers, Justice Marc Rosenberg once put it, “We do not have one criminal law for the powerful and influential and another for everyone else.”

Or do we? The more damning takeaway from the Commissioner’s report might be that government’s disregard for this most basic principle of impartiality was so flagrant that it raises questions about the sincerity of the Government’s commitment to it.

In the meantime, there are calls for a criminal investigation.

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