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‘A little baloney’ in PM’s claim about solicitor-client privilege on SNC-Lavalin

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OTTAWA — “In the matter of solicitor-client privilege, the member opposite must know that there are real dangers of unintended consequences, particularly on the two court cases currently wending their way through the courts.”

– Prime Minister Justin Trudeau, Feb. 19, 2019

Federal opposition parties resumed their demands this week that Trudeau let former cabinet minister Jody Wilson-Raybould speak to allegations that she felt pressured to avert a criminal trial for Quebec engineering giant SNC-Lavalin.

Wilson-Raybould, who resigned from cabinet last week, has said she cannot comment because she is bound by solicitor-client privilege, which still applies even though she’s no longer the justice minister and attorney general.

The Conservatives and NDP want Trudeau to waive that privilege so Wilson-Raybould can offer her side of the story.

But in response to such a demand from Conservative Leader Andrew Scheer during question period on Tuesday, the prime minister said doing so could harm two court proceedings involving SNC-Lavalin.

Those involve the fraud and bribery case against SNC-Lavalin in connection with its work in Libya nearly a decade ago, and the company’s appeal of the decision by federal prosecutors not to negotiate an agreement that would let it avoid a criminal trial in that case.

So is it true that revealing the discussions between Wilson-Raybould and the prime minister or members of his staff and cabinet have “unintended consequences” on the two cases?

Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of “no baloney” to “full of baloney” (complete methodology below).

Trudeau’s remark earns a rating of “a little baloney.”

THE FACTS

SNC-Lavalin is facing fraud and bribery charges in relation to business ties between it and Moammar Gadhafi’s regime in Libya and could be excluded from future government contracts here and elsewhere if convicted.

The federal justice minister is unique in that whoever holds the position is also the attorney general, the government’s top lawyer. In that vein, the government can consult the attorney general for legal advice and those discussions can be protected from disclosure.

But the Globe and Mail first reported this month, citing unnamed sources, that Wilson-Raybould felt pressured last fall to intervene and get federal prosecutors to offer the company a deal that would see it pay a fine rather than face a criminal trial. She refused.

Federal prosecutors in October rejected SNC-Lavalin’s request to negotiate a deferred prosecution agreement and pay for the criminal case to be dropped. The company has since appealed that decision and is waiting to find out whether a court will hear its request for a review.

These are the two cases Trudeau mentioned in response to Scheer.

The Liberals have admitted to numerous private discussions about SNC-Lavalin, including a meeting that Wilson-Raybould had with Trudeau in September and another between her and Gerald Butts, Trudeau’s former principal secretary, in December.

Trudeau and Butts have denied directing or otherwise pressuring Wilson-Raybould, who was shuffled out as justice minister and attorney general to veterans affairs last month in a move widely seen as a demotion. She resigned from cabinet Feb. 12.

While Wilson-Raybould has refused to talk about those discussions publicly, citing solicitor-client privilege, she says she has hired former Supreme Court judge Thomas Cromwell to advise her on what she can say.

Trudeau has similarly said that he is consulting Wilson-Raybould’s replacement, Justice Minister David Lametti, on what parts of their conversation can be safely revealed.

WHAT THE EXPERTS SAY

Whether solicitor-client privilege applies to interactions between the attorney general and other officials depends on the circumstances — and when it is invoked, the circumstances that give rise to the claim of privilege should be spelled out, says Toronto lawyer Lee Akazaki of Gilbertson Davis LLP.

That hasn’t happened in this case, aside from Trudeau saying that he told Wilson-Raybould that the decision whether to stop SNC-Lavalin’s prosecution was up to her and that the potential economic ramifications of a guilty verdict for a major company were raised.

That makes it hard to asses the degree to which waiving solicitor-client privilege could affect the criminal case and judicial review.

Assuming the attorney general was asked for advice about the ongoing prosecution, Akazaki says that advice “should be kept confidential in order to prevent any appearance of interference by the executive branch of government in an ongoing judicial proceeding.”

That is particularly relevant in a criminal case or judicial review such as those facing SNC-Lavalin, said Andrew Martin, an expert on legal ethics at the University of British Columbia, who added that once privilege has been waived it can’t be restored.

“I imagine it would inform SNC-Lavalin’s arguments on the judicial review, depending on what was said,” Martin said, “and they could probably use what was said as part of their application for judicial review.”

University of Ottawa law expert Elizabeth Sanderson, who previously served for many years as a federal-government lawyer, echoed the view that SNC-Lavalin’s lawyers could turn around and use any disclosed conversations between Wilson-Raybould and others in their defence.

All of which assumes, she said, that the discussions did touch on the details of the case and were not simply an attempt by Trudeau or his staff to get the former attorney-general to use her powers to intervene.

“There’s a real distinction between talking about the evidence or the legal opinion they developed to say why they think they have to pursue this case, which may reveal some of their strategy in litigation, versus a flat-out: ‘Don’t pursue this case.’ Which has nothing to do with the case.”

THE VERDICT

Any analysis of the prime minister’s assertion about the impact of waiving solicitor-client privilege is muddied by the fact neither Wilson-Raybould nor Trudeau have elaborated on the nature and context of the discussions that took place around the SNC-Lavalin case.

Still, the fact the case was discussed at the highest levels of government does raise the very real prospect that the contents of those discussions could have an impact on the proceedings and thus any waiver should be carefully considered.

“I think what he said is quite fair,” said Martin. “Don’t get me wrong, it’s politically convenient. I don’t know that he’s unhappy with this answer. But it is the correct answer.”

Akazaki said it is imperative the government provide more information about the nature of the discussions between Trudeau and Wilson-Raybould, but that when it comes to the prime minister’s comment: “Based on what we know at the present time, it is accurate.”

The statement is correct based on what the prime minister has said, but he’s keeping crucial details to himself. For that reason, Trudeau’s comment ranks as “a little baloney.”

METHODOLOGY

The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:

No baloney — the statement is completely accurate

A little baloney — the statement is mostly accurate but more information is required

Some baloney — the statement is partly accurate but important details are missing

A lot of baloney — the statement is mostly inaccurate but contains elements of truth

Full of baloney — the statement is completely inaccurate

Lee Berthiaume, The Canadian Press

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Trudeau to push trade pact in EU leaders’ summit as France moves ahead on CETA

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MONTREAL — Lawmakers in France begin their ratification of the comprehensive trade agreement between the European Union and Canada as Prime Minister Justin Trudeau welcomes the leaders of the 28-country bloc to Montreal today.

Trudeau has been pushing hard for a win on trade and foreign policy after two difficult years marked by a rough renegotiation of the North American Free Trade Agreement with the Trump administration and the deterioration of political and trade relations with China.

Trudeau will talk up the merits of the Comprehensive Economic and Trade Agreement, or CETA, with European Council President Donald Tusk and European Commission President Jean-Claude Juncker in a series of events in Montreal over the next two days.

But Wednesday’s legal development when the French National Assembly begins its consideration of France’s ratification bill is also a prime focus for Canada’s Liberal prime minister, who will be fighting a federal election this fall.

Sources in France and Canada, who were not authorized to speak publicly about the talks, say Trudeau lobbied French President Emmanuel Macron for more than a year to introduce the bill, and that those efforts finally paid off last month in Paris during their most recent face-to-face meeting.

Almost all of CETA — in excess of 90 per cent — went into force in September 2017 under what is known as provisional application, but individual ratifications by EU member countries will bring it fully into effect.

That would mean a win for the international trading order that has been under assault by U.S. President Donald Trump.

“It’s an essential step. We’re very pleased with our co-operation with the French government,” International Trade Minister Jim Carr said in an interview.

Carr will be meeting his EU counterpart Cecilia Malmstrom in Montreal. He said the French move towards ratification is a significant step in Canada’s broader goal of diversifying Canada’s export markets.

Trudeau was in Paris in early June after attending the 75th anniversary commemorations of D-Day in France and Britain, and he and Macron emerged with news that France would move forward with CETA’s ratification. The introduction of the bill in the National Assembly is a first step in a process that the French government hopes will lead to full ratification by the end of 2019.

Macron and Trudeau have talked about the agreement repeatedly — in Paris in April 2018, in a telephone conversation a year later, and other face-to-face meetings. Macron is a staunch Europhile and open supporter of CETA, but he has had to tread cautiously because of populist opposition to trade deals in France and across Europe.

Canada has lobbied French lawmakers, businesspeople and farmers, an effort that included more than two dozen visits to various regions of France by Isabelle Hudon, the Canadian ambassador.

Trudeau also made a direct appeal to French lawmakers in an April 2018 speech to the National Assembly, the first time a Canadian prime minister addressed that body.

“Let us ask ourselves this question: If France cannot ratify a free-trade agreement with Canada, what country can you imagine doing it with?” Trudeau asked.

CETA gives Canadian businesses preferred access to 500 million European consumers, and a $24 trillion market. In 2018, Canada’s exports to the EU increased by seven per cent to more than $44 billion.

Mike Blanchfield, The Canadian Press


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National

Uncompetitive nomination races weaken parties and Canadian democracy, study warns

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OTTAWA — Nominations for federal elections are strikingly uncompetitive and opaque, according to a new study, which says that has profound consequences for Canadian democracy.

New research by the Toronto-based Samara Centre for Democracy shows only 17 per cent of more than 6,600 federal candidates from 2003 to 2015 faced competitive nomination races, while 2,700 candidates were directly appointed by parties.

“If you see the nomination as a moment in a chain of democratic moments” leading to the election of a member of Parliament, said Michael Morden, the director of research at Samara, “I think it’s notable that, in an overwhelming majority of cases, there’s no real decision being made by local people.”

Morden said through exit interviews with MPs Samara has found there is “broad, quiet understanding” in political circles of the deficiencies of the nomination process. 

But he said most Canadians have little access to or ability to scrutinize the “black box” of party nominations, despite the stake they have in how parties run their internal elections.

Political parties are private organizations, the Samara study says, but they’re also “public utilities” that have a profound effect on Canadian democracy.

And a lack of competition might signal a worrying disconnect with the Canadian public, the study suggests.

There are several reasons the study proposes for why races are so often uncompetitive. Snap elections account for some of it, while rules that benefit incumbents are also a factor. Then’s there’s the reality that many local party associations are just too disorganized or small to attract multiple candidates.

But the trend extends even to larger parties that are competitive across the country, Morden said.

“In our mind, that is still a stunning lack of competition,” he said.

Beyond the lack of competition, the study also found nominations rules also have significant effects on the diversity of nomination candidates and, consequently, the diversity of members elected to the House of Commons.

Morden noted parties occasionally justify appointing candidates on the basis of diversity, but this was not borne out in the data.

In particular, the study suggests appointed candidates were less likely to be from visible-minority or Indigenous backgrounds.

The issue of female representation in the nomination processes was even more stark.

In line with findings that women win elections at around the same rate as men, the study suggests female nomination candidates are just as likely to win internal races as men are.

But just 28 per cent of nomination contestants covered by the study were women.

“That shifts the focus right back to recruiting, to the general openness of the process, to the intangible factors that cause some people to find their way in and others to self-select out or to never have the option,” Morden said.

The study found that longer nomination races and races that didn’t require monetary investment were correlated with higher female participation.

Morden said parties essentially close themselves off from a majority of Canadians through rules that make it more difficult to participate in nomination processes: short races, monetary costs, lack of information and protections for incumbents.

The study recommends corresponding changes in party policies: standard opening and closing dates for races, the obligation to report the number of votes candidates receive, and holding contests even where there are incumbent MPs.

These changes are in the best interests of parties that want to stay internally strong and remain connected with the Canadian public, Morden argued.

The study also considers a potentially expanded role for Elections Canada in administering or regulating the races, something Morden acknowledges is not popular among the parties.

Parties can also be reticent to even provide information about their nomination processes, Morden said. For example, only the Green party provided information about how many candidates it screened out of its nominations in 2015.

“There’s just not a culture of openness,” Morden said. “The nomination process is still seen as a very internal one, rather than a vehicle for mass political engagement.”

The first step in a reform process is convincing Canadians to care, Morden said, because otherwise “you’re not going to convince parties to do much.

“It’s hard to regulate parties, because parties make the law.”

Christian Paas-Lang, The Canadian Press

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