Jody Jody Jody

Star Cabinet Minister.  Early front-runner to be the eventual successor to Justin Trudeau as Liberal leader and potentially Prime Minister.  Jody Wilson-Raybould was not part of the party establishment, to be sure, but she was absolutely the party’s emerging voice. 

So how did she manage to screw this up so fast?

[Outrage!  How did SHE screw it up?  No, how did THEY screw her?  Don’t waste time with your angry tweets just yet.  See below.]

Let’s recapitulate.

JWR – A Star is Born

Wilson-Raybould was appointed Justice Minister and Attorney-General in 2015, part of Justin Trudeau’s historic 50/50 gender-balanced cabinet.  She brought more than just her extra X chromosome to the table.  A Crown prosecutor early in her law career, she went to the B.C. Treaty Commission as advisor, commissioner, and for a time acting chief commissioner.  Then, for six years, until she moved into federal politics, she was a highly popular Regional Chief of the B.C. Assembly of First Nations. 

Fluently bilingual, she nonetheless represents a Vancouver riding, and is becoming more and more influential with B.C. voters as time goes on.  At 47, her star has been getting brighter and brighter.

Sounds like a future Prime Minister, what? 

(Her father in fact told Justin’s father at a public hearing in 1983 that Jody, then 10, planned to be Prime Minister one day.)

It’s much more than that, though.  Throughout her career to date, two things have been apparent. 

First, don’t try to mess with her principles.  She doesn’t see the humour in it, and she has a steel will to go with her normative thinking.  She’ll be pragmatic when necessary, but there are lines she will not cross.

Second, and probably more important, she gets shit done. 

Without going through the whole list of her accomplishments, some of them more than a little surprising, it is clear that when you have something tough that has to get done, call Jody. 

People who are able to get things done come in all shapes and sizes.  In this case, all evidence is that Wilson-Raybould’s technique – aside from often being the smartest and/or toughest person in the room – is to empower the people around her, and then have their backs.  In short, don’t make it all about Jody.  When infighting amongst B.C. Chiefs was getting in the way of real progress, she listened to each of their concerns (their real concerns, not just what they said), and responded constructively with solutions that could work. The squabbling didn’t go away entirely (seriously, did you think that?), but there was a lot more cohesion and common ground. She did that.

That doesn’t mean sucking up.  She has a history of bluntness in private conversations where people are being silly.  For example, as B.C. Regional Chief she famously told then Prime Minister Stephen Harper that he had screwed up indigenous peoples’ policy.  (Then she accepted a pitch to run for the Liberals.  That’ll teach him.)

In one sense, she doesn’t sound a whole lot like a normal politician, and maybe she isn’t.  On the other hand, more than a few people think that a little less politics and a little more action is what we need anyway. 

All good for JWR (catchy, right?; if they can have AOC, why can’t we have JWR?), except for SNC-Lavalin.

SNC-Lavalin – A Canadian Success (?) Story

Now, if JWR is all good, some would say that SNC-Lavalin is all bad.  Not really – they employ 50,000 people, after all, and are one of the most successful engineering firms in the world – but no-one would accuse SNC-Lavalin of being the most principled company ever.  Unless the only principle that matters is profit.

The more than 100 year history of Montreal-based SNC, and its merger partner Lavalin (Quebec City based), is replete with some of the most iconic engineering projects in Quebec, Canadian and even world history.  The James Bay hydroelectric project, the new roof for the Montreal Olympic Stadium, 407 ETR, the Bennett Bridge in B.C.  It is a long list.

Along the way, though, SNC-Lavalin has been dogged with accusations that it regularly used an “end justifies the means” approach to winning and implementing big projects.  As it grew, particularly internationally, SNC-Lavalin was often suspected of using less than legal methods.

Who knows whether all of that was true?  Maybe some of it was just competitors jealous of the success SNC-Lavalin was able to achieve, time after time.  Maybe some of it was SNC-Lavalin just driving the same way as all the other companies on the same road, breaking the same rules but no worse than anyone else.  (“Hey, officer, I was just keeping up with the traffic.”)

Whatever the reason for the accusations, it is a fact that SNC-Lavalin has had more than its share of charges, executives indicted, and things like that. For some time, SNC-Lavalin has been blacklisted by the World Bank for projects they finance, expressly because of bad behaviour.  When you look at all of those charges, etc., you can see a pattern.  Bribery, corruption, competing based on under the table payments rather than based on merit, and that kind of thing seem to be demonstrated, at least in some cases, as far back as 1995. Some people would say there’s no reason to believe they started then.  They may go back much earlier.

No point in going through the whole list of accusations and charges.  Two of the many scandals are of most importance today:  the Arthur Porter kickbacks, and the Libyan bribery charges.

The sensational Arthur Porter scandal involved more than $20 million of “consulting fees” paid by SNC-Lavalin to the CEO of the McGill University Health Centre at the time that SNC-Lavalin was bidding to get, and ultimately won, the $1.3 billion contract to build the new MUHC hospital.  Porter resigned, and was later arrested in Panama on fraud charges related to the contract, but died in Panama before being extradited or tried.  SNC-Lavalin CEO Pierre Duhaime was charged, and ultimately pled guilty a month ago.  Two others have also been charged and convicted in the case.

The case arose largely because of the Charbonneau Commission looking into bid-rigging and bribery in the Quebec construction business.  As it unfolded, it appeared the leader of that scheme was – you guessed it – SNC Lavalin.

The reason the Porter scandal is particularly important is that, in 2012, Duhaime was replaced as SNC-Lavalin CEO by Robert Card, whose marching orders appeared to be to clean up the SNC-Lavalin corporate culture, i.e. instill for the first time a sense of right and wrong.  Several top executives were persuaded to leave, and SNC-Lavalin claims today to be a singularly honest and ethical company that will never have scandals like the Porter affair again. It had put its sorry past behind it.

SNC’s Gadaffi Problems

There is no point in getting into any great detail about Libya, because the matter is right now before the courts.  After a tip from the Swiss, the RCMP investigated SNC-Lavalin’s activities in Libya from 2001 to 2011, and as a result in 2015 charged SNC-Lavalin with fraud and corruption relating to bribes paid to members of the Gadaffi family, and other corrupt practices (contrary to the Corruption of Foreign Public Officials Act here in Canada).  Conviction would result in SNC-Lavalin being excluded from federal government contracts for ten years.  The company is already in the middle of a similar ten year ban by the World Bank. 

They were, as they say, in deep do-do.

One other piece of background is important.  In the summer of 2018, after more than a year of public consultation, the current government enacted a Remediation Agreement Regime that would allow those charged with certain offences to avoid conviction (and a ten year ban) if they accepted punishment, admitted what they did was wrong, and did certain things to clean up their act.  This is called a deferred prosecution agreement, or DPA.  It is entirely in the discretion of the prosecutor whether to offer it, or to prosecute the crimes alleged.  Even before the new rules were passed, SNC-Lavalin pounced on it, first in line, seeking its application to their Libya situation.

Now back to Jody.  Remember JWR?  This piece is about JWR.

SNC-Lavalin is being prosecuted by the Director of Public Prosecutions, an independent federal prosecution arm that reports to the Attorney-General, i.e. Jody Wilson-Raybould.  JWR is a noted hawk in opposition to political interference in prosecutions (and all other aspects of the criminal justice system), so when Kathleen Roussel, the Director of Public Prosecutions, was faced with whether it was appropriate to offer SNC-Lavalin a DPA, JWR left it up to her. 

Roussel has spent almost twenty years with the federal government, primarily as a prosecutor with increasing levels of responsibility.  She is widely respected.

No-one knows why Roussel decided not to offer a DPA to SNC-Lavalin as part of a plea deal.  She is actually not allowed to talk about it and, given her history, she won’t.

Perhaps it was simply SNC-Lavalin’s long history of sordid allegations, and some sense that DPA’s are not supposed to be for the true “bad guys”.  That would certainly be consistent with the spirit of the legislation.  Somebody has to be bad enough to go to jail.

Perhaps, as CBC has alleged in a recent story, this has something to do with the federal government’s poor history in getting convictions in corruption cases, particularly those related to SNC-Lavalin and its executives.  As reported by CBC journalist Dave Seglins, the federal prosecution service has been chasing SNC-Lavalin for years, spending millions of dollars on the various corruption cases relating to the company, yet has zero convictions.

This is speculation, of course.  

What we do know, though, is that Roussel said no to a DPA for SNC-Lavalin, and JWR backed her up.  That was in September of last year.

The Public Interest Rears its Ugly Head

SNC-Lavalin may have cleaned up their contracting practices, but they are still zealous lobbyists.  They had literally everyone they know talking to everyone they knew in government, including the Finance Minister and the Prime Minister’s Office.   

The SNC-Lavalin pitch is two-fold.

First, this is a company that, whatever its past history, has cleaned up its act.  Now model citizens, they are exactly the kind of company that should be allowed to walk away from a past transgression, chastened but not completely destroyed.

Second, SNC-Lavalin is a major company that employs a lot of people, especially in Quebec.  While they are not in the “too big to fail” category, they are strategically important to Canada and Quebec.  A conviction and ten year ban would be a significant blow, and there is no guarantee the company would survive that blow, at least in its current form.  It might even – perish the thought – be the target of a foreign takeover.

Oh, and there is an implicit third part to the pitch:  who knows what Quebec voters will do to the Liberals in the next election if a federal government prosecution seriously injures this important Quebec company.

If you listen to the JWR testimony before the House of Commons Justice Committee (it’s long, but worth the time spent), a pretty clear picture emerges.  In a series of in-person and telephone meetings with JWR and her staff, the Finance Department, the PMO, and the Privy Council Office debated how to deal with the prosecution of SNC-Lavalin, while at the same time avoiding any collateral damage – whether to the Quebec economy or to the Liberal party – as a result of a conviction.

Leave aside the political considerations for a moment, because that’s more complicated.  The job of the PMO and the Department of Finance is to look after the public interest.  If any event has the potential to harm the public interest, they have to look for ways to either prevent it from happening, avoid the harm it will cause, or mitigate it.  A death blow to SNC-Lavalin – at the hands of the federal government, no less – might well qualify in that category.

When you look at it that way, they really had no choice.  They had to approach JWR and seek solutions, actively and with all the strength they could muster.  They couldn’t just ignore the problem.  Logically, that would mean considering whether the use of the newly-allowed DPA technique could achieve the right balance between punishing a wrongdoer and protecting the public interest.  (It would also have to include things like amending the ten year ban legislation to exempt SNC-Lavalin, a much more difficult way forward.  Or, supporting SNC-Lavalin’s Quebec competitors to ameliorate the fallout from SNC-Lavalin’s demise.  And so on.)

Just as the U.S. government bailed out Wall Street banks that were really quite obvious bad actors, but had to be saved in order to achieve an overall public interest, so too the Canadian government had to consider how to act in the public interest in this case.  As the Cabinet Minister responsible, JWR was a key part of those discussions.  That was a given.

There is also nothing wrong with those discussions being vigorous, even to the point of being – what’s a nice word? – animated.  You would expect a group of high level officials, sitting around JWR’s office trying to figure this problem out, to engage in a debate that is somewhat less than genteel.  Pat-a-cake this is not.  You solve problems by aggressively testing people’s positions, seeing whether there is more common ground than first appears.

It is not like this was JWR’s first rodeo.  She had been part of tough discussions before (medically assisted dying, cannabis legalization, etc.), and there is no allegation that she is a shrinking violet in those situations.  By all accounts, including her own, she didn’t have any problem handling the pressure of the debate.

But, what you can’t do with the Attorney-General, when discussing a prosecution, is either of two things.  Directly or indirectly.

You can’t say “This prosecution has to be stopped, because we’ll lose too many votes in Quebec if you convict them.”  Politics may be the art of the possible and all that, but if you equate the public interest with your own electoral success, you have crossed a line.  Maybe this happens all the time, in government (“maybe?”, you say), but in relation to the application of the Criminal Code, it is not OK.

And, you can’t say “The Prime Minister wants this prosecution to stop, and if you want to stay on as AG, you have to do what he wants.”  The Prime Minister has many powers, but directly determining whether anyone is prosecuted for a crime is not one of them.  Nor should it be.

It is alleged that the “pressure” on JWR to overrule Roussel and order a DPA may have breached both of these boundaries. 

Clearly some political staff raised votes and elections in discussions with JWR and her staff, and she characterized some of the discussions as political interference.  It happens all the time in government, of course, but it was probably ill-advised here.  Thankfully, there is no suggestion that either the Prime Minister or the Finance Minister themselves crossed this particular line (except for one comment by the PM that he retracted right away).  That would be a bigger problem.

It is also alleged that JWR was shifted to Veterans Affairs because she was insensitive to the imprecations of the PMO on the SNC-Lavalin case.  We’ll probably never know for sure, but what we do know is that no-one made an explicit or implicit threat to remove her if she didn’t do what the PM wanted.  In fact, what we know is that the PM specifically and personally told JWR that the ultimate decision was up to her, not him.

Bottom line, whatever pressure was applied, SNC-Lavalin is being prosecuted.  If there was undue pressure, it was not effective enough to get JWR to change her mind. 

Did anything improper happen?  Likely not.  A little too much political analysis for the situation, but not egregiously so. And undue pressure?  Given the power of the PMO in Canadian government, if there had been actual undue pressure the result would have been different.  Further evidence of that is the Prime Minister’s willingness to let JWR testify, waiving most of the privilege restrictions that would have limited that testimony.

Trudeau and his government may pay a political price for this incident, but it is unlikely that they did anything seriously wrong.  They looked for a solution to a public interest concern.  Did they look too aggressively?  Perhaps, but in the end everyone was still trying to do the right thing.

JWR’s Strategy

For JWR, though, this is a bit of a disaster, and you have to ask what her strategy was in taking this approach.

Until this hit, JWR was undoubtedly one of the most effective members of the Trudeau cabinet.  With her strong CV, and good public presence, she had to wait another 3-7 years, and she would be one of the front-runners to replace Justin when he leaves.  If Justin is happy with two electoral victories, he resigns in 2022 and there is a leadership convention. Alternatively, if he wants a third term – ten years or more at the helm, a psychological hurdle – then he resigns in 2025 or 2026. 

If JWR had maintained her strong role as a member of the Liberal team, and not screwed up along the way, she would have been a front runner in either case, at the age of either 51 or 55. 

To do that, she would have had to engage with the PMO and other government officials, and help them find a solution that accomplished their public interest goals while respecting the independence of the prosecutorial role.  She’s smart, and she has a history of being able to do exactly that kind of thing.  It didn’t have to involve a DPA.  Creative minds can find other solutions.

So why didn’t she?

There are four main possibilities.

First, she may have tried to do that, but just screwed it up.  She may have misread the importance of the issue to the rest of the government, or she may have gotten her back up at some point when she should have been more constructive.  At some points in the process it appears that she saw the problem as “their problem” to deal with, not hers, which is a mistake for someone in Cabinet. There are lots of ways that, pursuing the right strategy, you can simply get it wrong, particularly in a situation as sensitive as this one.

If that’s the case, it’s sad in a way.  It may show that she is less of a star than we all thought, or it may just be evidence that we are none of us perfect.  Her road to the PMO has still suffered a big setback.

Second, she may have sensed that Justin Trudeau is vulnerable right now, and decided that her opportunity is now, not later.  Justin will lose the 2019 election and leave federal politics.  JWR, the one who left Cabinet in order to stand up for her principles, will be there in the 2021 leadership convention, the same strong CV supporting the claim that she is the next great thing.

As a political strategy, that’s very high risk, as John Turner found out years ago.  Political memories are longer than they first appear, and right now there are many Liberals who think JWR has stabbed their darling Justin in the back.

Third, JWR realizes that she is not a lifelong Liberal, and her next leadership opportunity is to replace Andrew Scheer, not Justin Trudeau.  If she crosses the floor to run for the Conservatives, she can probably deliver Vancouver Granville to them.  As long as Justin still wins overall, that leaves the Conservatives ready to replace Scheer (and tack back towards the centre), and JWR as a rising star to replace him. 

Lots of people have switched sides, but how many federal leaders have come to that role, and then become Prime Minister, after switching sides?   Are there any in the last fifty years?

Fourth, not everyone wants the brass ring.  It is always possible that JWR is completely satisfied with the many accomplishments she’s already achieved, and realizes that she doesn’t need to be Prime Minister (despite her father’s famous statement to Pierre) – or even be in the politics game – to continue to make meaningful change in society.  On this scenario, she decides not to run in the 2019 election, and fades off the front pages despite the wistful tears of her fans. 

This is actually the scenario that most favours JWR’s future.  She may end up as National Chief of the AFN, if she wants the job.  Down the line, what government would not want to appoint her to a court of appeal or, eventually, the Supreme Court of Canada?  Maybe she would rather be Chief Justice than Prime Minister.

Conclusion

The SNC/JWR scandal that is enveloping the Trudeau government is fascinating first and foremost for its potential to cost Justin and the BoysTM the next election.  Whether it will or it won’t is certainly beyond the capabilities of my current model crystal ball.  I would need the new, AI-inspired crystal ball to deal with that question.

The future of JWR, though, is just as fascinating, yet perhaps more susceptible to analysis.

I have no ultimate answer, of course.  She remains one to watch.  Her star, though, is less vibrant than it was.

  • Jay Shepherd, March 3, 2019

About Jay Shepherd

Jay Shepherd is a Toronto lawyer and writer. This site includes a series on energy issues, plus some random non-fiction on matters of interest. More important, it includes the Lives series, which bridge the gap between fiction and non-fiction, and now some short stories. Fiction is where I'm going, but not everything you want to say fits one form. I am not spending any time actively marketing what I write, but by all means feel free to share if you think others would enjoy reading this stuff.
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3 Responses to Jody Jody Jody

  1. Sharron Curley says:

    Thanks for the balanced, informative synopsis. Clarity over hype any day!

    Liked by 1 person

  2. quistian says:

    Thanks Jay for a well written and informative article. As usual!
    I was however confused as I read the paragraph stating:

    “Perhaps, as CBC has alleged in a recent story, this has something to do with the federal government’s poor history in getting convictions in corruption cases, particularly those related to SNC-Lavalin and its executives. ”

    That for me would be a good reason to offer a DPA rather than not.

    The whole affair seems to me like JWR is a person who can handle facts and even proper guarderd persuasive arguments but who wants to have her own mind and especially given her job as AG. I am sure she is smart enough to have already known that SNC Lavalin is a big employer (with as you know about half the jobs outside of Quebec). She knew the issues at state and the lose-lose potential of not going with a DPA. And who knows, perhaps she never liked the whole DPA legislation. I am assuming that she is just principled and stubborn and will stand up for herself and for the hard line of the law (i.e. no political pressure please from the PMO). If she was using this as a manoeuvring tool for her future political career, in my opinion she’s lost most of my respect.

    Liked by 1 person

    • Jay Shepherd says:

      The problem with a DPA may be that it doesn’t get a conviction, and the only penalty is a fine. No-one goes to jail. For some, it might appear that the Director of Public Prosecution is letting a bad guy off with a light slap. However, my guess is that the real reason was that SNC-Lavalin is not considered a good company that made a mistake. The likely reason for no DPA is that sometimes the real bad guys just have to be convicted, otherwise the law is toothless. DPAs are not supposed to be for serial offenders.

      Like

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