The Need to Know

Anthony Housefather holds the chair of the Standing Committee on Justice and Human Rights, which is the parliamentary committee that heard testimony from former Attorney General and Justice Minister, Jody Wilson-Raybould and others in the SNC Lavalin affair (SNC).

Now that the committee has concluded its investigation, Mr. Housefather wants to tell Canadians what he thinks they need to know about SNC.

Housefather takes some pains to remind us that the Justice Committee is not a court and that his conclusions about what Canadians need to know about the findings of the Committee are his own opinion. Most Canadians I think recognize all of that and can therefore decide for themselves what they need to know.

The Need to Know

Mr. Housefather’s opinion can be summarized in two points. First, he doesn’t think that the so-called Remediation Agreements are something “slipped into the Criminal Code” just to help SNC Lavalin. He says they’ve been used “successfully” in the United States for 20 years and are now being used in other countries as well. In his view the provisions for Remediation Agreements in the Criminal Code are “entirely appropriate“.

This is not a ringing defense of Remediation Agreements, in my opinion. That other jurisdictions use them and that the Department of Justice considered them for years before introducing them into the Criminal Code in 2017 doesn’t make it a part of objective law. This argument amounts to: “it’s used in other countries and now Canada has it too, therefore good”.

Where Mr. Housefather tries to provide some justification for the Remediation Agreement is in his statement that:

 . . . a main purpose of remediation agreements is to reduce the harm that a criminal conviction of an organization could have for employees, shareholders and other third parties who did not take part in the offence.

This sets up his argument that the Attorney General has an ongoing duty to consider such information and that it was entirely appropriate for, apparently, he and others from the Prime Minister’s Office to continue relentlessly “offering important information” on a public policy issue.

When you can’t justify, let alone define the political concept you’re trying to defend there’s always the “public interest,” that non-existent entity to which “public policy” issues allegedly apply. What it really means is that some private interests are being served above those of some others. In this case, it would have been the interests of SNC Lavalin above those of any competing interest. Regrettably in this case it was the cause of justice that was to be sacrificed to the “public interest”.

The second point may be paraphrased as “there was no criminal activity but it’s difficult to follow ethical conduct when the rules are ambiguous, therefore, Canadians should be concerned about clarification for the future”. He was referring mainly to rules for interaction with the Attorney General’s office, as in the following:

We need to formulate clear rules as to appropriate interactions with the attorney-general as relates to prosecutions and remediation agreement considerations. Then everyone (Parliamentarians, staff and officials) needs to be educated on these rules.

With respect, if anybody thinks that the same “we” that made up the current rules can create any more clarity, then they’re mistaken. No rules for “appropriate interactions with the attorney-general” can ever be made clear enough unless the role of Justice is clearly separated from the political sphere.

It may be prudent to separate the roles of Attorney General and Justice Minister as Mr. Housefather even suggests. However, as to clarity, all laws ought to be so clear that even ordinary Canadians, not just “Parliamentarians, staff and officials” know in advance of the laws and consequences for breaking them. This is really what all Canadians “need to know”.

Edward’s Post

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