A few random thoughts following our Prime Minister’s content-free press conference this morning on the SNC-Lavalin affair.
We have the minority Conservative government led by Stephen Harper in 2006 to thank for the establishment of:
- the Public Prosecution Service of Canada (PPSC) which gave greater independence to, and provided further separation of, the prosecution service from the Minister of Justice;
- the office of the Conflict of Interest and Ethics Commissioner;
- the Commissioner of Lobbying;
- the Public Sector Integrity Commissioner to protect whistleblowers;
- the Parliamentary Budget Officer.
These offices and services, some of which were driven, in part, by the findings of the Gomery Commission that investigated the Liberal sponsorship scandal, were implemented as part of the Conservatives’ Federal Accountability Act in 2006.
So, Conservative efforts at making government more accountable are core to the mess the current government finds itself in. As a result of the Federal Accountability Act there is greater transparency with respect to who is lobbying the government, who they are meeting with and the purpose of their lobbying efforts. There is a very clear process that the Attorney General of Canada must follow if they wish to intervene in a public prosecution. There is also a clear process for investigation and resolution of (narrowly defined) breaches of ethics or conflicts of interest by parliamentarians – not without merit but clearly insufficient for addressing the current SNC-Lavalin issue.
The Liberals have made and continue to make changes, too. They introduced, in an omnibus budget bill, legislation that enables deferred prosecution agreements, a tool that can be used as an alternative to criminal prosecution by the PPSC at its discretion. This legislation does appear to have been brought in in response to SNC-Lavalin’s transparently reported lobbying efforts, albeit somewhat covertly in a budget bill. The Liberals are also contemplating changing the rules of the integrity regime by altering the debarment penalties companies convicted of serious crimes face. The current 10-year prohibition on bidding for federal contracts put in place by the Conservatives may be reduced or even eliminated in some cases by legislation being promoted by Carla Qualtrough the minister in charge of procurement. Such a change could potentially work in SNC-Lavalin’s favour if it is convicted of wrongdoing in the case currently being prosecuted against it by the PPSC.
That’s quite a contrast, both philosophically and in terms of potential effect. Which kind of begs the question when it comes to serving the public interest, should pragmatic concerns expressed by the current government as a focus on “jobs, jobs, jobs” (even if they really mean “votes, votes, votes”), override upholding the longstanding principles embodied by the rule of law and the prohibition against parliamentarians to interfere in the administration of justice, or vice versa? It’s worth noting that the Federal Accountability Act has been shown by this affair to have some real utility and effectiveness, although it possibly doesn’t go far enough. Recent events and the legislative track record of the former and current governments should, one would hope, put an end to the endlessly propagated absurdity that the latter is markedly more virtuous than its predecessor. Anyone who is still holding onto that notion hasn’t been paying attention.