A curious thing happened on the way to the impasse between the Prime Minister’s Office and Jody Wilson-Raybould. Although the Department of Justice has lots of legal advice immediately at hand, the prime minister tried to persuade her to hire a lawyer to give her further legal advice in an attempt to find a solution to the standoff between them.
He proposed the most distinguished lawyer in Canada, the former chief justice of the Supreme Court of Canada, the Honourable Beverley McLachlin. Not a bad offer. She refused.
I think I know what advice she might have gotten from McLachlin. And that explains why she didn’t want, and never accepted, that offer of legal advice.
She would have been told that over the last number of years the courts of Canada, including the Supreme Court of Canada, have pretty consistently been striking down mandatory minimum penalties in criminal sentencing because they give a judge no choice about the sentence. The law under which anyone is punished must allow sufficient discretion by the trial judge to give justice to minor offenders.
The law that would apply to SNC-Lavalin if they were convicted provides little judicial discretion at all (and then only to cover cases where the impact on the public interest or the security of Canada would be extremely great), but it gives no discretion to lower the 10-year prohibition on bidding for government contracts in Canada for minor offenders whose culpability is less than that of the worst offender and the worst offence.
Thus, a small company offering a tiny bribe for a first-time foreign contract is subject to the same 10-year ban as someone like SNC-Lavalin, a large, well-funded, sophisticated corporation, experienced both in foreign governmental contracts and which bought Gaddafi’s son a $28 million dollar yacht.
For a small corporation, the penalty would be cruel and unusual and a violation of section 12 of the Canadian Charter of Rights and Freedoms as disproportionate.
Accordingly, she would be told, do not pick this hill to die on. The decision to require a 10-year bidding ban under the law, which you are insisting cannot be interfered with, is likely, itself, to be unconstitutional.
A trial judge who convicted SNC-Lavalin would declare it to be unconstitutional and impose a bidding ban on government contracts for no time at all or whatever time up to 10 years she thought just.
The government of Justin Trudeau came into office and sought to repeal a vast majority of these mandatory minimum penalties in every area of the Criminal Code. Harper passed these minimum penalties everywhere: he didn’t trust judges to do what’s right. Trudeau did.
The mystery is why he has not done so already. Wilson-Raybould blamed such minimum penalties for causing trial delays and said on Feb. 11, 2017, that “wholesale change” was coming “in the very near future.” Not true.
In the end, she preferred the principle of attorney general autonomy, protecting her ability to make decisions without pressure from a political office.
The solution to the problem is not complex. Fulfil the campaign promise to repeal minimum penalties, including this one. The justice system will be better for it. The world will see that we trust our judges to do what is right, after they have heard a case based on real evidence.
And the government would no longer be in this crisis.
Clayton Ruby, C.M. is lead author of Ruby on Sentencing, a legal text.
https://www.thestar.com/opinion/contributors/2019/04/12/the-legal-advice-wilson-raybould-should-have-taken.html
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