Slaw.ca Legal Ethics Column, April 10, 2019.
Twice in the last six months, Canadian Attorneys-General have been encouraged to resist the first ministers of their respective governments. Today, federal AG Jody Wilson-Raybould is widely commended for resisting repeated requests from the PM’s office to change tack on the prosecution of SNC-Lavalin (See Patricia Hughes’ comprehensive Slaw post on the affair).
In September of 2018, Ontario AG Caroline Mulroney was called upon to vote against, or resign from, Premier Doug Ford’s government after Ford proposed to invoke section 33 of the Charter. The Superior Court of Justice had found Ford’s plan to reduce the size of Toronto City Council to violate freedom of expression, and Ford announced that he would use the “notwithstanding clause,” if necessary, to override this decision. (The SCJ ruling was quickly overturned on appeal, making section 33 unnecessary).
What do these two cases have in common, and what sets them apart?
First, the Rule of Law is the principle that both Premier Ford and Prime Minister Trudeau are said to have trod upon. It is also the principle that the two Attorneys-General allegedly had a special responsibility to uphold, by making independent decisions in defiance of their First Ministers.
Second, both cases show the tension between the rule of law on one hand, and decision-making by democratically elected leaders on the other. Both Ford and Trudeau had the confidence of majorities in their respective legislatures. They were both able to claim democratic mandates to make public policy decisions, and they are both accountable to the electorate for the decisions of their governments. Canada’s tradition of strong party discipline, under the firm leadership of a PM or Premier, gives voters clear choices and stable government.
Mulroney and Wilson-Raybould also, of course, won elections in their ridings. However, the reality is that most voters vote for the party platform or leader, not for local candidates. When the ability of Premiers and Prime Ministers to influence legal decisions with broad policy ramifications within their governments is curtailed, the rule of law is arguably augmented at the expense of democracy.
Three Important Differences between the Two Cases
- There is no law constraining or structuring a government’s invocation of the Charter’s notwithstanding clause. By contrast, section 715 of the Criminal Code explicitly lays out a process for deciding whether to offer Remediation Agreements to defendants like SNC-Lavalin. This process clearly involves the Director of Public Prosecutions and the Attorney-General, and clearly does not involve the Prime Minister. Moreover, the Prime Minister’s primary stated basis for intervening — the protection of jobs — is difficult to reconcile with section 715’s direction that “the prosecutor must not consider the national economic interest” in deciding how to proceed in cases like this.
- Judges are the most important guardians of the rule of law in our system. A decision to not prosecute (as in the case of SNC-Lavalin) will not be substantively reviewed by any court absent an abuse of process (as SNC-Lavalin recently learned at the Federal Court). Thus, the Attorney-General is arguably the “only line of defence” if such decisions are to be made according to law. By contrast, had the Ford Government invoked the notwithstanding clause, that decision would certainly have come before the courts. Because AG Mulroney’s office was not the only opportunity for legal scrutiny, the necessity for independent scrutiny on her part is arguably not as strong.
- Premier Ford’s council restructuring was not a criminal prosecution; SNC-Lavalin was. When an AG is “exercising their delegated sovereign authority to initiate, continue or terminate prosecutions,” the Supreme Court has said it is constitutionally necessary that they “act independently of partisan concerns.” The “Shawcross Doctrine,” regarding the AG’s independence from cabinet, likewise applies only to prosecutions. (Craig Forcese’s post explains the principles very well, and Adam Dodek makes a persuasive argument that conjoining the Attorney-General and Minister of Justice roles is a mistake).
The appropriate relationship between the AG and the Premier/PM is ultimately about balancing the rule of law and democracy. The policy merits of Ford’s council restructuring, and Wilson-Raybould’s SNC-Lavalin prosecution, are irrelevant to the question. To me, the differences between these two superficially similar episodes in our constitutional history suggest that Mulroney cannot be faulted for staying quiet in September, while Wilson-Raybould was right to speak out in February.