Jordan Peterson to Justin Trudeau "You weasel"

Trudeau has support of remaining 33 members of cabinet, survey shows

Bloggers note : The Liberal caucus has 40 Lawyers as MPs ..40 Lawyers better be on the right side of the "Can You pressure the AG" issue or their career after politics will be in jeopardy...

'My confidence in the prime minister remains untouched,' says Patricia Hajdu

CBC News · Posted: Mar 04, 2019 8:04 PM ET | Last Updated: 4 hours ago

https://www.cbc.ca/news/politics/federal-cabinet-behind-trudeau-1.5042887?fbclid=IwAR1C-0nM1FP1rUM5GjRbrswzwoq8QtL_9qwRsWM6BYKdZmkVul0kZah30A8

In the wake of Jane Philpott's sudden resignation from the federal cabinet over what she said was her "lack of confidence" in the way the Liberal government has handled the SNC Lavalin affair, CBC News reached out to the remaining 33 members of cabinet to ask if they still support Prime Minister Justin Trudeau.
As of Monday evening, all remaining members of the federal cabinet were saying they continue to support Trudeau and the government. Some issued statements, others simply confirmed their support. Below is a list of statements from cabinet ministers who provided them to CBC News:
Minister of Indigenous Services Seamus O'Regan

"I have full confidence in this prime minister and am committed to continuing on with the important work ahead for Indigenous peoples and all Canadians."
Minister of Transport Marc Garneau
"Absolutely. I'm proud to work with a leader that is focused on jobs, growing the middle class and strengthening our economy."

• Jane Philpott resigns from cabinet, citing loss of 'confidence' over government's handling of SNC-Lavalin

Minister of the Environment Catherine McKenna
"Yes, Minister McKenna has full confidence in the PM and will remain in cabinet," said spokeswoman Caroline Thériault.
Minister of Employment, Workforce Development and Labour Patricia Hajdu
"My confidence in the prime minister remains untouched. I stand by him and believe in his ability to lead a government that delivers for all Canadians. I am sorry to see one of my Cabinet colleagues step down and I wish her the best."

Minister of Small Business and Export Promotion Mary Ng

The minister told CBC that she supports Trudeau "100 per cent."

• Jane Philpott's departure leaves Trudeau without one of his strongest performers

Minister of Crown-Indigenous Relations Carolyn Bennett
"I have absolute confidence in our government, and our prime minister, and will continue the vital work of advancing reconciliation and self-determination as the minister of Crown-Indigenous relations."
Minister of Canadian Heritage and Multiculturalism Pablo Rodriguez
The Quebec MP said he backs Trudeau "totally,"

Minister of National Revenue Diane Lebouthillier
"I support the prime minister and am proud of the work we have accomplished during the last three years to make life better for all Canadians."

• Timeline: Turmoil in the Trudeau cabinet

Minister of Democratic Institutions Karina Gould
"I have full confidence in the Prime Minister and this government."

Minister of Immigration, Refugees and Citizenship Ahmed Hussen
"Minister Hussen has full confidence in Prime Minister Justin Trudeau and his vision for Canada," said spokesperson, Mathieu Genest.
Minister of Intergovernmental and Northern Affairs and Internal Trade Dominic LeBlanc
"I have full confidence in the prime minister. We will continue to take action to make life easier for Canadians, and create good, middle class jobs across the country."

• Liberal MP Carla Qualtrough would have 'gone to the prime minister' if colleague faced pressure

Minister of International Trade Diversification Jim Carr
"The PM and this government as a whole has minister Carr's full confidence. He remains committed to his role as minister and to the important work the PM has given him to carry out on behalf of Canadians," said spokeswoman, Isabella Brisson.
Minister of Tourism, Official Languages and La Francophonie Mélanie Joly
''Of course, the Prime Minister has my full confidence.''
Minister of Infrastructure and Communities​ François-Philippe Champagne
"I absolutely have confidence in the prime minister and the plan he put in place for Canadians and I will continue to be a strong voice for rural Canada, for a strong and growing economy and for Quebec."

• Wilson-Raybould says she's running as a Liberal in fall federal election

Minister of Fisheries, Oceans and the Canadian Coast Guard Jonathan Wilkinson
"I am proud of the progressive accomplishments made under the leadership of the prime minister. I have full confidence in the prime minister and our government."
Minister of Natural Resources Amarjeet Sohi
"I have full confidence in our government. Canadians elected us to build a strong middle class and provide opportunities for those who work hard every day to join the middle class. That is what we have focused on since day one and this is what we will continue to do under the strong leadership of PM Trudeau."
Minister of Science and Sport Kirsty Duncan
"I fully support the prime minister and our government, and as minister of science and sport, will continue focusing on our important work for science and research, and on making sport safe for all."
Minister of Public Services and Procurement and Accessibility Carla Qualtrough
"I have full confidence in the prime minister and our government, and I look forward to continuing to serve Canadians.
"I'm sad to hear of Jane Philpott's departure from Cabinet. She was a valued member of the team around the table. I thank the Prime Minister for his faith in me as I take on the interim position of president of the Treasury Board and minister of digital government."
All remaining members of the federal cabinet have told CBC News that they continue to support Trudeau and his government.

#iAmJodywr WATCH LIVE: The National for March 3, 2019 — Wilson-Raybould, Facebook ...

L'Affaire SNC-Lavalin: The Public Law Principles

L'Affaire SNC-Lavalin: The Public Law Principles

Saturday, February 9, 2019 At 9:15AM

http://craigforcese.squarespace.com/public_law_blog/2019/2/9/laffaire-snc-lavalin-the-public-law-principles.html?fbclid=IwAR2E4Ho_uSePiuH-aMEzzNoksbQ4dUgqfMfTlCnYLSly8WsiWHS2HDaC9rE

By Craig Forcese

I have not posted to this blog branch of my website for years, but shall do so this morning on the issue of: the role of the Attorney General in criminal prosecutions. The context: the Globe and Mail reported on Thursday, February 7:

Prime Minister Justin Trudeau’s office attempted to pressJody Wilson-Raybould when she was justice minister to intervene in the corruption and fraud prosecution of Montreal engineering and construction giant SNC-Lavalin Group Inc., sources say, but she refused to ask federal prosecutors to make a deal with the company that could prevent a costly trial. [emphasis added]

The article uses even stronger language later:

Sources say Ms. Wilson-Raybould, who was justice minister and attorney-general until she was shuffled to Veterans Affairs early this year, came under heavy pressure to persuade the Public Prosecution Service of Canada to change its mind [in relation to seeking a remediation agreement in lieu of prosecution]. [emphasis added]

The Prime Minister’s office asserted the “Prime Minister’s Office did not direct the attorney-general to draw any conclusions on this matter,” a position repeated by the Prime Minister himself the next day: "At no time did I or my office direct the current or previous attorney-general to make any particular decision in this matter”. The Prime Minister also stated: “The allegations reported in the story are false.”

The matter is now a matter of political controversy, and partisan preoccupations will drive the narrative. My concern here are the public law issues. I cannot resolve the contested facts, but I will try to suggest the legal standards that apply in assessing them.

1. Starting Observation

I shall, throughout this note, assume that the Globe’s sources are being truthful in recounting what they believe happened, and likewise that the PMO and the Prime Minister are honest. From a public law perspective, this is the line in the Globe story which galvanizes this post: the Attorney General “came under heavy pressure [from the PMO] to persuade the Public Prosecution Service of Canada to change its mind.”

I note right away the story is inconsistent on the degree of this pressure. In its opening line it says “attempted to press”. Later, it says “Sources say officials from Mr. Trudeau’s office, whom they did not identify, had urged Ms. Wilson-Raybould, Canada’s first Indigenous justice minister, to press the public prosecution office to abandon the court proceedings.” The story then variously uses "pressure" and "political pressure".

These are all different degrees of influence – and as I shall note below, that matters. The first point, however, is that the reporting is ambiguous, even if you accept the anonymous sources as credible. No judgment can be made, in the end, about the propriety of the relationship between the PMO and the AG on this matter without much more specificity.

That is because the rules in this area are nuanced.

2. What Does the AG Do?

The AG is not a minister like all others. In our system, he or she does have a more classic ministerial administrative or political function, as “Minister of Justice”. As “Minister of Justice”, the minister manages and directs Justice Canada. The minister is also the “official legal advisor to the Governor General and the legal member of the Queen’s Privy Council for Canada”, which makes the minister the chief law officer to Cabinet. Among other things, the minister must “see that the administration of public affairs is in accordance with law”.^[1]

In her or his role as AG, however, the minister has very different functions. Here, the minister inherits the traditional powers and duties belonging to the office of the AG of England “by law and usage, to the extent applicable to Canada”.[2]  Most critically, the attorney-general oversees federal prosecutions in Canada’s criminal justice system. By long-standing constitutional tradition, the attorney general is expected to be above partisan concerns in supervising prosecutions, creating an independence within executive government not shared by other members of Cabinet.^[3]

3. What is AG/Prosecutorial “Independence”?

The most famous recognition of the “constitutional convention” of AG independence came from the Supreme Court of Canada in Krieger: “It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.”[4] The Court also noted: “The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government.”[5]

In the United Kingdom, this AG independence is preserved by leaving the AG out of Cabinet. Because Canada “double-hats” the AG and Minister of Justice function, we do not have this structural safeguard. Thus, as the Supreme Court noted, “Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the UK”[6]

The principle of AG independence is nicely summarized by Justice Rosenberg of the Ontario Court of Appeal as follows:

The most important of these constitutional conventions is that although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis. The resignation of the Attorney General would expose any attempted interference by the premier or the cabinet both to the public and especially to the press, and would further entrench the convention of institutional independence.[7]

More generally, prosecutorial independence from the rest of executive government, Parliament and, to a considerable degree, judicial supervision, is a carefully protected expectation in Canadian law.^[8] At the federal level, it is reinforced within the Justice portfolio by a statute that separates Justice Canada and the Public Prosecution Service of Canada (PPSC). Under the supervision of a director of public prosecutions, the PPSC conducts most federal prosecutions and its law imposes transparency requirements where the AG her- or himself assumes the conduct of a prosecution, or directs its initiation or conduct.^[9] Put another way, we have added a layer of additional buffers between Cabinet and prosecutors. If an AG were to compromise and surrender his or her independence, the PPSC structure makes it more difficult to act on that surrendered independence, at least not without considerable risk of exposure.

To be sure, this does not mean that PPSC/prosecutors operate with impunity. There is such a thing as lawsuits for malicious prosecution – though the threshold for winning such lawsuits is high.[10] And prosecutor discretion can be structured through general policy, such as the PPSC’s manual.[11]

4. Why AG/Prosecutorial Independence?

The reason for this AG/prosecutorial independence is straightforward: the role of the AG and prosecutors is to act in the public interest, not in the interest of whoever is in the PMO. They must, therefore, not be under the thumb of the political executive, and indeed must be insulated from political pressures that would, for instance, leave some people favoured in the criminal justice system, and others targeted. A core ingredient of the “rule of law” is that “there is, in short, one law for all”.[12]We do not have one criminal law for the powerful and influential, and another one for everyone else.

                 

5. Where would AG/Prosecutorial Independence be Violated?

The key issue is: what degree of “interference” would trammel AG independence. Justice Rosenberg summarizes the standards in what is called the “Shawcross” doctrine, now practiced throughout Canadian jurisdictions:

First, the Attorney General must take into account all relevant facts, including the effect of a successful or unsuccessful prosecution on public morale and order — we would probably now call this the public interest. Second, the Attorney General is not obliged to consult with cabinet colleagues but is entitled to do so. Third, any assistance from cabinet colleagues is confined to giving advice, not directions. Fourth, responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her. Fifth, and equally, the Attorney General cannot shift responsibility for the decision to the cabinet.[13]

Sir Hartley Shawcross’s statement itself reads:

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.

Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.[14]

From these standards, it is clear political advice is one thing, but a political executive “direction” to the AG in a criminal justice matter would exceed the Shawcross standard. In response to such a direction, the AG should refuse – and resign. [Addendum Sun Feb 10: on AG resignations, see the addendum below the footnotes in this post.]

The murk lies where discussions fall short of “direction”. To use the language from the Globe article “heavy pressure” would raise, in my view, serious Shawcross standard problems – indeed, I do not see how “heavy pressure” could be consistent with those standards. As Justice Rosenberg notes, “responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her.”

I am less certain what to make of the Globe’s other statements: “attempted to press” and “urged”. Without knowing what was said and in what context, it is essentially impossible to know if these were discussions of the sort the Shawcross principle do allow; or whether the line between discussion and pressure was crossed. “Urged” is clearly gauche and the sort of thing a carefully organized Cabinet office would avoid at all costs (for appearance sake at least). Applying Shawcross, it sounds like “telling [the AG] what that decision ought to be”. Meanwhile, I simply have no idea what to make of “attempted to press” – the universe of things that might fall in that category is so broad it is impossible to apply the Shawcross standard to the allegation.

In sum, without clarity on the specific statements made and their context, it is simply impossible to measure “heavy pressure”, “urged”, or “attempted to press”. These descriptors all encapsulate the judgment of either the Globe’s sources or the Globe reporters themselves. And I have no idea what criteria they have applied to arrive at that judgment.

At risk of being very wrong, one might infer that people in the AGs office thought a line had been crossed – someone was, after all, the Globe’s source. But if a clear Shawcross line was crossed, the expectation would then be that the AG would resign. That did not happen.

The Prime Minister’s rejection in the Globe story suggests that, at the very least, whatever happened did not cross the unquestionable redline of “direct”. (There is now a lot of Kremlinology-like speculation about this wording. My assumption when I heard it was just “oh, in using that ‘direct’ language, he has been responding to legal advice that has focused on this clear Shawcross redline.”) His further statement that “the allegations reported in the story are false” might also be a denial of the “attempted to press” and “urged” standards. If so, a clear statement might be useful -- because if none of what is reported happened, then we are all wasting a lot of time while the sea rises.

Bottom line: right now, no one beyond those in the know can presently make a definitive judgment on whether this is a public law nothing-burger, or a rule of law train-wreck. (And I would like to know what lines the people in the know are using in arriving at their conclusions.)

6. Does it matter that this was a remediation agreement issue?

A final point relates to the fact that at issue was the prosecutors’ unwillingness to enter into a remediation agreement negotiation. Some on Twitter Law School have suggested this fact relaxes the traditional strictures on AG/prosecutorial independence.

I do not see how that could be. First, a remediation agreement is, essentially, an off-ramp from a prosecution for corporate economic crimes. It is simply impossible to imagine that use of the off-ramp may be a politicized exercise, while only driving down the highway is protected by independence. That would mean, in effect, there is no independence: the off-ramp would available to the politically-favoured companies, who never take a ride down Highway Prosecution if they had friends in high places. We would have, in effect, two Criminal Codes: the Code for corporate friends, and the Code for everyone else. That would do considerable violence to the rule of law. (I would note, also, that the Supreme Court in Krieger was clear that the AG’s independence extended to the “authority to initiate, continue or terminate prosecutions”. By extension, so too would prosecutorial independence extend to these matters.)

I would resist, therefore, any assertion that prosecutorial independence is unavailable where a prosecutor acts under Part XXII.1 of the Criminal Code.[15] At any rate: the Code itself does not anticipate politicking. Section 715.32 places the discretionary decision on whether to enter into a remediation agreement negotiations in the hands of the prosecutor, whose decision to negotiate would be approved by the AG. In this context, because of the Director of Public Prosecutions Act, the AG should be read as the “director of public prosecutions”.[16](Put another way, unless the AG proactively intervenes under the express powers to do so in that Director of Public Prosecutions Act, noted above, he or she is not personally involved in this decision.)

The Code sets out (in considerable detail) the factors the prosecutor is to consider in exercising their discretion. This is a fettered discretion. And even if there were no constitutional conventions of independence applicable here, prosecutors would still err if they were to depart from the language of the Code and contemplate political variables like “heavy pressure”, “urge” or “attempts to press” from the PMO. Specifically, if they did not enjoy prosecutorial independence, they would be fully subject to administrative law discipline. And that discipline would preclude abuses of discretion. While administrative law “standards of review” are a muddled mess, it would still be an unreasonable exercise of discretion to act based on improper considerations not anticipated by the statute. In sum, even if the prosecutor were stripped of independence for Part XXII.1 purposes, we are still talking about a legal error, were he or she responsive to political pressure.

---

^[1]                Department of Justice Act, s.4, online: https://laws-lois.justice.gc.ca/eng/acts/J-2/page-1.html#h-4.

[2]           Ibid, s.5.

^[3]                Krieger v. Law Society of Alberta, 2002 SCC 65, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2007/index.do.

[4]           Ibid at para. 3.

[5]           Ibid at para. 29.

[6]           Ibid.

[7]           Marc Rosenberg, “The Attorney General and the Prosecution Function in the Twenty-First Century,” (2009) 43(2) of Queen's Law Journal 813, online: http://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm

^[8]                See Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 40, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15406/index.do.

^[9]                Director of Public Prosecutions Act, S.C. 2006, c. 9, s.121 at ss. 10 and 15.

[10]         See Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 40, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15406/index.do

[11]         See https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/index.html.

[12]         Reference re Secession of Quebec, [1998] 2 SCR 217 at para. 71, online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do

[13]         Marc Rosenberg, “The Attorney General and the Prosecution Function in the Twenty-First Century,” (2009) 43(2) of Queen's Law Journal 813, online: http://www.ontariocourts.ca/coa/en/ps/publications/attorney_general_prosecution_function.htm(emphasis added).

[14]         UK, H.C. Debates, vol 483, cols 683-84, (29 January 1951), reproduced at https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p1/ch01.html#section_1.

[15]         Criminal Code, RSC, 1985, c. C-46, online: https://laws-lois.justice.gc.ca/eng/acts/C-46/page-179.html#h-263 .

[16]         SC 2006, c.9, s.121, at ss. 3(3).

Update on Sunday, February 10, 2019 at 11:32AM by craigforcese

I am receiving quite a few queries about this posting over Twitter.  I fear I cannot respond to all, for which I apologize, especially the ones involving hypothetical facts. In relation to the question of when an AG should resign, perhaps the best consideration of that question I can point to, as a matter of past practice is the speech given by BR Smith, upon his resignation as Attorney General in BC in 1988 (hat tip to one of my colleagues who wishes to go unnamed for the hyperlink).