SNC-Lavalin & the need for fresh thinking around independence and interference

In the SNC-Lavalin case, it’s correctly been noted that the decision to prosecute would have an impact not only the company but also those who were affected by its alleged actions.. (Tma5e / Shutterstock.com)

Was former attorney general Jody Wilson-Raybould’s decision-making on Quebec’s SNC-Lavalin subjected to inappropriate interference?

Gerald Butts, Prime Minister Justin Trudeau’s former principal secretary, was insistent the Prime Minister’s Office did not exert any undue pressure on Wilson-Raybould during his testimony to a House of Commons justice committee. The prime minister, meantime, says he was unaware she ever felt pressured.

“…what exactly constitutes pressure?” Gerald Butts, testifying at the House of Commons justice committee

That is the question at the heart of the SNC-Lavalin controversy. And it illuminates a greater, even more powerful set of issues related to identifying and preventing inappropriate interference in a variety of government contexts.

Administrative actors is the legal term used to cover the wide swath of decision-makers that emanate principally from the executive branch of government.

Administrative actors include tribunals responsible for a broad array of matters that affect almost every aspect of the social and economic well-being of everyday Canadians. That includes work and employment, health, social benefits and human rights, as well as regulatory areas such as natural resources and broadcasting.

Cabinet ministers often get involved

There are administrative actors all over Canada at the federal, provincial, territorial and municipal levels. They generally operate at arm’s length from cabinet and government departments, but nonetheless, cabinet ministers are often required by statute to make individualized decisions as part of their mandate.

An example of how ministerial decision-making affects the lives of individuals can be found in the Immigration and Refugee Protection Act (IRPA). Under provisions of the Act, the minister of Citizenship and Immigration has the authority to stay the enforcement of a removal order on humanitarian and compassionate grounds such as to protect the best interests of a child.

The minister also has the discretion to permit an individual to stay in Canada by granting an exemption from applicable criteria or requiring that alternative obligations be met, and may do so as a public policy consideration.

But warding off political interference is important across the spectrum of administrative actors.

The reasons are twofold. Firstly, decisions should be made in a manner that doesn’t place any weight on extraneous, irrelevant factors.

An example of a decision based on irrelevant factors is contained in the landmark 1959 Roncarelli versus Duplessis ruling, the first Supreme Court of Canada decision to address political interference. The case involved the cancellation of a prominent Montreal restauranteur’s liquor licence “and his application for renewal rejected, to which was added a declaration by the respondent that no future licence would ever issue to him.”

In finding in favour of Frank Roncarelli, the Supreme Court determined that he’d lost his liquor licence as a form of punishment because of his support of the Jehovah’s Witnesses, whose religious existence was seen as a threat in 1950s Quebec.

‘Disintegration of rule of law’

Justice Ivan Rand held that permitting public officers to act for purposes not within the scope of their discretion under the governing statute would signal the disintegration of the rule of law.

The Roncarelli ruling is a celebrated decision for its early definition and support of the rule of law. But its comments on political interference leave something to be desired.

The court recognized that the liquor licence commissioner was acting on the orders of Maurice Duplessis, who held the dual role of attorney-general and premier of the province of Quebec.

But the court determined that it didn’t need to analyze the arguments presented that Duplessis’s interference was also at fault since it had already found that the law backed Roncarelli.

The Roncarelli case was therefore not only the first significant case to examine political interference, it was also the first to illustrate the weak decisions that have occurred when political interference on administrative decision-making has been brought to court.

In the SNC-Lavalin case, it’s correctly been noted that the decision to prosecute would have an impact not only the company but also those who were affected by its alleged actions.

But it’s also raised questions about respecting the rule of law. Even if the law has political dimensions, when it comes to its interpretation and application, the public should have confidence that the decision-maker will be working from their own moral conscience and understanding of the applicable law. They must not be swayed by those who haven’t been mandated to make the decision.

Wilson-Raybould touched on this in her recent testimony to the House of Commons committee, but it’s also one that has deep roots in Canadian administrative law as seen in both the Roncarelli ruling and the

2009 case Keen versus Canada (Attorney General).

Some would argue the Keen case is among the clearest examples of political interference of our time.

Linda Keen was removed from her position as president of the Canadian Nuclear Safety Commission following a decision that had plainly displeased Canada’s natural resources minister at the time, Gary Lunn.

The Canadian Nuclear Safety Commission regulates all nuclear facilities and activities in Canada. In 2007, the commission decided to keep closed a nuclear power plant that had been temporarily shut down for routine maintenance because of its failure to meet safety standards.

Lunn engaged in a weekend conference call with Keen and members of the commission in which he requested an immediate hearing in order to approve the restart of the reactor.

This followed a prior conference call between Lunn, commission officials and the operators of the reactor during which the Conservative cabinet minister urged them to work together to resolve the issue.

Overall, Lunn’s interactions with Keen appeared to reveal a misperception of the relationship between his office and the commission. While the minister is responsible for reporting to Parliament on behalf of the commission, the Canadian Nuclear Safety Commission, as an arm’s-length independent body, was not responsible for accounting to Lunn for the decisions it made.

Keen took the case to Federal Court

After being unceremoniously removed from the position of president and demoted, Keen brought an application for judicial review in the Federal Court of Canada.

But the court held only that the circumstances of her termination were sufficient to satisfy the requirements of fairness since she was serving “at the pleasure” of the Crown.

It’s time for some fresh new thinking, and political and social leadership, on the issue of political interference.

We need to determine genuine and accurate criteria when it comes to the situations that affect independence. It’s only then that we can advocate for appropriate political leadership through legislation, and the development of good governance values to counteract such interference.

The Jody Wilson-Raybould controversy provides a useful example from which we can learn, and her reference to Indigenous principles may offer yet another valuable resource from which to draw.

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