Canada must be, A Just Society

kelly harris

The World Justice Project 2019 Rule of Law index ranks Canada 9th in the world with high-scores for “no improper influence” and “no corruption.”

I wonder what next year’s rankings will find given the SNC-Lavalin Scandal and the ham-fisted way the government mishandled it and continues to do so. The amazing thing about this, if it was ever really about jobs, is that there was a way to do it properly.

When the Trudeau Government brought in the highly controversial Deferred Prosecution Agreement rules and amended Canada’s Criminal Code in September 2018, they should have examined the legislation with SNC-Lavalin as a test case. That way Former-Attorney General Judy Wilson-Raybould and the independent prosecution service would have been able to use the tool to allow the Quebec-based construction giant to avoid prosecution. Clearly this didn’t happen.

What is worse is the issue this strikes, cuts to the very core of why Canada is one of the best places in the world to live and, as former-Prime Minister Pierre Trudeau said, “a just society.”

The issue is the independence of the judiciary and the country’s prosecution services. The rule is, if you want to direct either, it must be done openly, publically allowing for scrutiny to insure the rules were followed and no undue pressure was exerted on independent criminal justice institutions.

I know, because I have actually gone through it in my career.

In February 2006, British Columbia Justice Ellen Gordon handed down a two-year sentence and two-years probation to 26-year-old Jenny Arlene Woloshyn following a conviction of criminal negligence causing death.

Ms. Woloshyn was driving her car drunk in January 2005 and killed a young artist, David Firenze. The Crown sought four-to-six years.

At the time I was the Issues Manager and Press Secretary to BC Attorney General Wallace T. Oppal – a former judge himself. My boss told me I had to go to the Legislature because the Attorney General was apoplectic about the ruling and wanted to do something. The worry was a former justice; turned politician was going to try to push around his former-colleagues on the bench.

So part of the reason I was called was so I could read chapter and verse of the British Columbia Crown Council Act to the Attorney General. Under Section 5 of the Act, the Attorney General may direct Crown Counsel to launch an appeal. The act requires that any direction to the criminal Justice branch from the Attorney General be in writing and published in the B.C. Gazette.

The process is similar to other processes followed across our country.

It’s  intended to preserve the independence of all parties and is transparent to the public whenever the government makes a specific request of the criminal justice branch. It is one of the most important caveats of law in Canada, of justice in Canada and if we lose it, the clear separation of the judiciary and the legislative powers, we are no better than a banana-republic.

A place where justice can be bought and lobbied for. A place where a conviction or a charge can be struck down or upheld depending on the pressure exerted on politicians. That is what is at stake if we continue to let the facts in the SNC-Lavalin Scandal be covered up.

This week’s news of the RCMP investigation being thwarted – for the time being – because of cabinet secrecy is an example of hiding the facts.

Former-Prime Ministers Brian Mulroney, Paul Martin and Stephen Harper have all waived cabinet privilege in the face of investigations. It is not a left or right debate, it is a right and wrong debate and if the Prime Minister did nothing wrong — then let the investigations prove that.

And if they do I will be one of the first people to apologize to him and his government.

Sadly, politics is playing a lousy game with a Canadian convention that is at the very centre of Peace-Order and Good-Government – the founding principle of our country.

So lost in the ongoing accusations of someone having a difference of opinion 15-years-ago, many of us did. Lost in the idea that we are destroying the planet and need a plan to save Mother Earth. Lost in the issues with health care, the debt and deficit, pipelines and foreign affairs, is what kind of a country do we want to live in.

I recall another story former-Attorney General Oppal once told me. This paraphrased as it has been 14 years, but it always stuck with me.

He was on a junket to South America when he was still Justice Oppal.

The junket was to discuss legal and judicial practices of various South American countries versus those of Canada and he was at a dinner. He told me that during a break one of the judges from a South American country – I will withhold the name of the place even though I was told it – asked then Justice Oppal; “How much does it cost in Canada for a not-guilty judgement?”

Mr. Oppal told me he discussed the cost of trials, good lawyers, bad lawyers and such. The other man continued, “No, that is not what I mean, to buy a not-guilty verdict?”

Gobsmacked as he told me, my former boss simply said, “In Canada you cannot buy a not-guilty verdict.”

Nothing more needs to be said.

Kelly Harris is Principal of Harris Public Affairs, former Press Secretary to two British Columbia Attorneys General, Former-Editor of Canadian Lawyer Inhouse Magazine, former-writer for Canadian Lawyer Magazine and the Law Times, and Director of Legislative Affairs for Tim Hudak, Leader of Her Majesty’s Official Opposition at Queen’s Park.

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