The PMO Has Discovered the Presumption of Innocence

February 7, 2019

Michael Bryant
Executive Director and General Counsel
mbryant@ccla.org

 

 

 

 

SNC-Gate might be the way the Kremlin works, wherein Putin officials manipulate the justice system to benefit his friends, but not Canada. Nobody is above the law in this country. Nobody.

So if PMO crackerjacks made legal changes to the Criminal Code to accommodate a Quebec conglomerate, then lobbied the Justice Minister to politicize a criminal prosecution, then this government is about to learn the hard way that messing with the administration of justice is not just bad politics. It may be a crime.

The Globe investigation may have already triggered a criminal investigation into allegations that PMO officials committed obstruction of justice and breach of trust under the Criminal Code. This story has all the hallmarks of a corrupt police state. If true, it confirms the public’s worst fears about the justice system. That it’s about who you know, in the PMO, not what you did.   

That said, the Prime Minister has flatly denied the allegations. Maybe now he and his office will feel what it’s like to have their presumption of innocence steamrolled, as Canadians feel when faced with the Liberal DUI law debacle. A reckoning has descended upon their constant disregard for due process rights under the Charter; their refusal to repeal mandatory minimum sentencing laws; their resistance of justice reforms to benefit the most vulnerable; and their bizarre insistence on solitary confinement of mentally ill people.

Back to SNC-gate. In my experience as Attorney General of Ontario, if anyone from the Premier’s Office tried that out, either the Deputy Attorney General or I would have picked up the phone and dialled 911. The new federal Attorney General should consider whether he’s best serving Parliament and the administration of justice from outside Cabinet, following the convention in the UK that the A.-G. not sit in Cabinet.

As such, the legal scholar turned MP David Lametti could fulfil his juridic aspirations if not his political ones. The Cabinet needs his excellent legal mind now more than ever. But he ought to do so only as Chief Legal Officer to the Crown and not as a member of the Cabinet. At the least, he should recuse himself from Cabinet when not advising them on legal ramifications. The A-G in UK does not traditionally sit in Cabinet because s/he must be independent on criminal matters and directly responsible to Parliament

Of course, that’s exactly why Lametti was put there by the PM – they could not have Jodi Wilson-Raybould referred questions by the PM during Question Period because she needs to refer questions to someone else. That someone else is Lametti, Scholar-In-Chief in today’s parliament, not unlike Irwin Cotler was under PM Martin.

The standard operating procedure on such a scandal would be to call an inquiry headed by a retired judge. But in this case, no such inquiry could proceed without the inquiry itself interfering with a criminal investigation. That was the order of things in Ontario when the Ipperwash Commission (on the fatal shooting of Dudley George by an OPP officer, amid unproven allegations of political interference) needed criminal prosecutions to complete before it could commence. Only after they were finished could I appoint former Chief Justice Sid Linden as the commissioner.

But again Canada could take a page from the UK, appointing an inquiry to report back within 6 weeks about how best to manage this from Parliament’s perspective. Meanwhile, the police investigations, if any, could continue.

But for goodness sake, I hope the RCMP (or whatever police agency is dispatched) and an independent prosecutor do not drag this out and play peek-a-boo during the upcoming fall election. They should do their job and make a decision about laying charges and then announce the decision publicly, in a reasonable time period. Everyone implicated is innocent, after all. Innocent until proven guilty. The PM denies the allegations; so let’s not delay getting some independent verification, even as the Globe and other journalists chase this story down to its essence.

Which is that the PM is accountable to the House of Commons and the electorate for the actions of his office. There is no plausible deniability that applies politically, even if it shields him from criminal liability. The principle of Ministerial responsibility may be observed in the breach in parliamentary democracies. But Canada’s constitution still stands for the principle that the buck stops with the First Minister.

 

Michael Bryant was the 35th Attorney General of Ontario from 2003-2007.