Op-ed: No heroes in SNC-Lavalin saga
The following is an op-ed written by Paul G. Thomas, professor emeritus of political studies. It was originally published in the Winnipeg Free Press on Apr. 11, 2019.
The SNC-Lavalin scandal has done serious damage to the image of the prime minister and to the Liberal party brand. In my view, the scandal is more a failure of leadership and political management than it is an actual constitutional crisis.
What happened in the SNC-Lavalin case was a breakdown in communication between the prime minister and the attorney general (AG), a breakdown that eventually led to the resignation of two ministers, the chief policy adviser to the prime minister and Canada’s top public servant.
Failure to anticipate, forestall and then to deal decisively with an emerging crisis led to the eventual loss from the Liberal caucus of two talented MPs, Jody Wilson-Raybould and Jane Philpott, and the sorry SNC-Lavalin saga has yet to end. There are no heroes involved.
The prime minister is clearly the single most important actor in the national governing process. Justin Trudeau had promised that he would not rely on the centralized, controlling and secretive approach to governing that began under his father in the late 1960s and intensified under subsequent prime ministers.
During his first term in office, the younger Trudeau has changed structures and procedures to achieve a better balance between centralization and decentralization. However, the SNC-Lavalin affair represented a distinctive case of policy-making that involved the independence of the AG and her relationships with the prime minister, his office, the Privy Council Office (in effect the PM’s department), the cabinet and the Liberal caucus.
The case highlights the complex interactive process of social psychology that is involved with governing. Ministers and backbenchers regard themselves as part of a team that values loyalty. Confidential cabinet and caucus meetings, where disagreements can be discussed, are intended to promote an external image of unity. Prime ministers have important prerogatives, such as appointments to cabinet and signing nomination papers, but these types of “hard” power are usually seen as a last resort.
Much to be preferred is reliance on “soft” power techniques, such as inclusion, respect, empathy, communication, persuasion, negotiation and principled compromises. Egos, ambitions and rivalries must be managed. The personalities and aspirations of certain ministers and MPs demand more attention and cajoling from the prime minister than others.
Bonds of loyalty and trust take time to develop but can be broken quickly when an issue is poorly managed. Dissent can become contagious; just ask British Prime Minister Theresa May or former Manitoba premier Greg Selinger, both of whom saw multiple ministers resign in protest over policy and leadership problems.
In contrast, former prime minister Brian Mulroney was an unpopular leader and his party was in the teens in the polls, yet there were almost no signs of unrest because he appointed two senior political staff to monitor caucus relationships and committed to meeting his MPs on a regular basis.
Successful prime ministers possess contextual intelligence, by which I mean the capacity to read situations and the people on different sides of an issue. The SNC-Lavalin case required contextual awareness and close attention.
The company had in the past been a reliable corporate donor to the Liberal party. It had been accused of domestic and overseas corruption. It had lobbied intensely for legislation that would provide for a remediation agreement rather than a criminal conviction for its alleged bribery activities in Libya.
Clearly the file represented serious political risks for the government. It required that the prime minister keep track of where things were going on the file, including being in personal contact with the AG.
The law allowing for remediation agreements was tucked away in the Liberal government’s omnibus budget bill for 2018 and did not receive adequate parliamentary debate. The first use of the law involved SNC-Lavalin. This meant there were no precedents to guide the behaviour of all the actors involved.
There is considerable ambiguity in the law. For instance, it is unclear what constitutes undue pressure that might compromise the independence of the AG. Granting a remediation agreement to SNC-Lavlin would have been lawful, but it required convincing a court this was in “the public interest,” a vague phrase that would seem to require consultation.
Wilson-Raybould did not seek advice and did not share the document containing the reasons for refusing an RA. Secretly recording a conversation with the clerk of the Privy Council diminished her credibility
In the end, no law was broken, although a constitutional convention regarding the independence of the AG to initiate a prosecution might have been threatened. The principles and practices for how future corporate wrongdoing cases will be handled at the centre of government need to be clarified. In this instance, the norms of team play and loyalty protected the prime minister, but he needs to commit more time and resources to the delicate task of managing cabinet and caucus.