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The SNC-Lavalin Affair: Justin Trudeau, Ministerial Resignations and Party Discipline

L'affaire SNC-Lavalin : Justin Trudeau, démissions ministérielles et discipline de parti
Alex Marland
p. 151-177

Résumés

L’affaire SNC-Lavalin figure parmi les cas les plus spéculaires de démissions ministérielles et de discipline de parti de l’histoire canadienne. En 2019, des désaccords ont plongé le gouvernement libéral de Justin Trudeau dans la tourmente, où se sont mêlés reportages explosifs, remaniements au sein du Cabinet, témoignages devant les commissions parlementaires, enquête sur l’éthique et discipline de parti. Menacée de poursuites pénales, SNC-Lavalin, entreprise basée au Québec, a fait pression sur le gouvernement pour négocier un accord de poursuite suspendue qui éviterait la perte de milliers d’emplois. Le Cabinet du Premier Ministre, le greffier du Conseil privé et le Ministre des Finances se sont opposés à la procureure générale Jody Wilson-Raybould, hostile à un tel accord. Cette chronique compare cet évènement politique avec les crises précédentes au sein du Cabinet, telles que la question des écoles du Manitoba en 1896, la crise de la conscription en 1944 et le désaccord sur les armements nucléaires en 1963. L’épisode de 2019 a été le premier à impliquer des femmes ministres et les réseaux sociaux, et le seul à émerger à propos d’une question politique relativement obscure. Tous ces épisodes ont mené à une perte de sièges parlementaires pour le parti au pouvoir lors des élections suivantes.

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1Secrecy about political executives is an almost impenetrable research barrier that impedes our ability to understand them (e.g., O’MALLEY 2007). Occasionally, how heads of government, ministers, their political staff and high-ranking public servants interact becomes a little less mysterious when information spills into the public domain. The drama of a policy stalemate between the prime minister and a headstrong minister can offer a rare peek into executive-level interactions.

2The chain reaction of events known as the SNC-Lavalin affair caused serious problems for the Liberal government led by Justin Trudeau. The episode was only the fourth time in Canadian history that more than one minister resigned from the federal cabinet over a single policy dispute (LEWIS 2019), the first case involving women ministers and likely the first to spur the resignation of senior members of the Prime Minister’s Office (PMO) and the Privy Council Office (PCO). It is also one of the most significant instances of a Canadian prime minister expelling Members of Parliament (MPs) from a parliamentary caucus.

  • 1 This is a revised version of chapter 11 in MARLAND (2020), which focuses on party discipline and fe (...)

3This article documents the main political happenings1. The story stemmed from SNC-Lavalin’s lobbying of government of Canada officials to negotiate an alternative to criminal charges against the company. In February 2019, the Globe and Mail reported that Attorney General Jody Wilson-Raybould had refused a barrage of requests from the Trudeau PMO to authorize a deferred prosecution agreement. The allegations prompted two months of public debate about ministerial independence, lobbying and political interference, the rule of law, party discipline and the parliamentary system itself. To situate the case, the article begins with some context about executive power, ministerial resignations and caucus evictions in Canada. The three antecedent cases of ministers resigning bring to light noteworthy aspects of the events of 2019, including that past disputes involved high-profile topics that were so polarizing that prime ministers tried to maintain the status quo for as long as possible, whereas the SNC-Lavalin case involved the prime minister and his agents urging action on a topic that did not penetrate the national consciousness until the private disagreement became public. A commonality is that in the ensuing general election each time the governing party has won fewer seats.

Executive Power, Ministerial Resignations and Caucus Evictions in Canada

4Observers of Canadian politics recognize certain norms about how the parliamentary system of government works. This includes a belief that Pierre Elliot Trudeau becoming prime minister in 1968 set in motion structural changes resulting in government power being concentrated in central agencies and the prime minister’s inner circle (CBC NEWS 2015; MUNROE 2011). When influence over public policy depends on “who do you know in the PMO,” a democratic deficit results, as Paul Martin put it after Prime Minister Jean Chrétien fired the star finance minister from cabinet for insubordination (MARTIN 2003). Another widely held view is that the leaders of Canadian political parties have been accruing power from backbench MPs who must toe the party line or else face disciplinary consequences (MARLAND 2020). These twin forces result in a pyramid of power with ministers occupying the middle tier and lowly backbenchers at the bottom. Sitting at the apex is the prime minister and a group of courtiers, including PMO staff (HOCKIN 1977; SAVOIE 1999).

5Few politicians depart cabinet voluntarily between elections. The guiding constitutional conventions are that they must have confidence in the government and they bear individual responsibility for their portfolios. Because the remarks and actions of a minister must reflect those of the government, particularly with respect to a collective decision of cabinet, ministers may step down for reasons ranging from policy disagreement to misconduct (SUTHERLAND 1991). Others exit to pursue another opportunity or due to ill health; sometimes the public reason given obscures the political reasons. A small number of Canadian ministers voluntary quit because they can no longer abide by the prime minister’s leadership or policy directions; by one count, between 1945 and 2006 just 11 ministers did so (KERBY 2014, 279). Those who remain in cabinet the longest tend to have extensive prior service as a Member of Parliament (KERBY 2011, 602), perhaps because they are more likely to accept the team player aspects of party discipline, such as policy logrolling and a public image of unity. More than one minister resigning is highly unusual as it constitutes a direct challenge to the prime minister continuing to head the government.

6The largest mass exodus of federal ministers occurred over the Manitoba schools question that arose out of the province’s founding in 1890. Prime Minister Mackenzie Bowell demurred on division within the cabinet and caucus about whether to overrule the provincial government’s decision to cease funding French language denominational schools. In 1895, three Francophone ministers tendered their resignation, but two were convinced to stay on. Then in January 1896, with a general election looming, seven Anglophone ministers—Arthur Dickey (militia and defence), George Foster (finance), John Haggart (railways and canals), William Ives (trade and commerce), Walter Montague (agriculture), Charles Tupper (justice and attorney general), John Wood (customs)—resigned in an effort to force Bowell out and install Tupper as prime minister. Governor General Lord Aberdeen and his wife, Lady Aberdeen, were deeply involved in discussions and fielded visitors over several days as they convinced Bowell to remain while power informally transferred to Tupper (SAYWELL 1956). The cabal of ministers was reappointed after ten days of turmoil and deal-making. That April, Prime Minister Bowell relinquished the post, unable to cope with what he had referred to as “living in a nest of traitors” (quoted in THE GLOBE 1896). Tupper became prime minister but the Conservative party was defeated in the ensuing June election.

7A pair of ministerial resignations occurred during World War II on opposite sides of whether to draft soldiers for compulsory service. In 1942, a national plebiscite exposed divisions between English and French Canada, leading to Prime Minister Mackenzie King’s famous decree of “not necessarily conscription but conscription if necessary” (KING 1942). As King resisted pressure to conscript, distressed ministers remained in cabinet including James Ralston, the pro-conscription minister of national defence. Ralston submitted a letter of resignation, but the prime minister persuaded him to stay with a promise that the government would pursue conscription when it became essential to do so. In Fall 1944, a split formed in the cabinet as its war committee engaged in heated conversations about the urgent need for reinforcements. Ralston and his supporters wanted a time limit on voluntary recruiting. In an early November cabinet meeting, with a replacement already in mind, the prime minister announced that he would now accept the defence minister’s offer to resign (HENDERSON 1997; HUTCHISON 2011). However, voluntary recruitment soon proved inadequate, causing a faction of English ministers to urge the necessity of conscription. Anti-conscription Charles “Chubby” Power, an associate minister of national defence, was loyal to King but unable to support the prime minister’s reluctant decision to advance an order in council to conscript 16,000 draftees. Power quietly resigned from the cabinet and caucus in late November. The June 1945 election reduced the Liberals to a minority government.

8The third case of mass resignations erupted after a few years of political debate over American defence officials’ request, as part of the North American Air Defence (NORAD) agreement, to install anti-aircraft nuclear missiles on Canadian soil. The 1962 Cuban missile crisis exposed the downside of Prime Minister John Diefenbaker’s anti-nuclear policy and added to frustrations with his leadership when he delayed acting on the recommendation of Doug Harkness, the minister of national defence, to put Canadian defence personnel on high alert. Pro-nuclear ministers began strategizing about how to oust the PM. In February 1963, at a heated cabinet meeting, Harkness said that he was not alone in lacking confidence in Diefenbaker. The prime minister evoked Bowell by declaring the cabinet agitators “a nest of traitors” and demanded that loyal ministers stand up; nine did not (NEWMAN 1973: 363). The next day Harkness provided the media with his resignation letter which exposed irreconcilable disagreement on the nuclear weapons issue. A flurry of backroom activity resulted as reports swirled of other pending resignations and a coalition conspiring to force Diefenbaker out (GLOBE AND MAIL 1963). The prime minister managed to shore up the caucus with passionate campaign-style oratory, thereby thwarting the cabal of ministers; however the government proceeded to lose a non-confidence vote in the House of Commons. With the election campaign underway, George Hees (trade and commerce) and Pierre Sevigny (associate minister of national defence) abruptly resigned, citing frustration over the nuclear armament policy and Diefenbaker’s anti-Americanism (GRAY 1963). The Progressive Conservatives (PCs) lost the April election.

9Sometimes a disgruntled MP leaving a parliamentary caucus can have the same dramatic effect as a minister leaving cabinet and rare cases of multiple exits can similarly threaten a leader’s station. Between 1945 and 2011, of the 95 MPs who left their party, 27 were “booted” by the leader, with the rest exiting of their own volition (SNAGOVSKY and KERBY 2018, 432). Whether in government or opposition, kicking out an MP for dissent rattles the caucus while simultaneously reinforcing party discipline, but leaders must tread carefully: those who practice swift justice are criticized for being a dictator and those who are patient are portrayed as weak. The basis for expulsion can be clear-cut, notably when a governing party MP votes against the government on a confidence matter, as occurred in 1990 when Prime Minister Brian Mulroney expelled two PC MPs for voting against the Goods and Service Tax (GST) bill. Otherwise, the leader needs to be assured of caucus support because a decision to banish their colleagues could spark a revolt.

The SNC-Lavalin Affair: Events Prior to Internal Disagreement Becoming Public

10The SNC-Lavalin affair exposed the internal politicking and personality conflicts among senior members of a Canadian government. The main public actors were:

  • SNC-Lavalin Group, a Montreal-based international engineering and construction company;

  • Prime Minister Justin Trudeau, a Montreal MP since 2008 and Liberal leader since 2013;

  • Minister Jody Wilson-Raybould, a first-time Vancouver Liberal MP, a former Crown prosecutor and a member of the We Wai Kai Nation;

  • Minister Jane Philpott, a first-time Ontario Liberal MP and family physician;

  • Gerald Butts, the prime minister’s principal secretary and personal friend; and

  • Michael Wernick, the clerk of the Privy Council and longtime member of the executive ranks of the non-partisan public service.

11All of them endured significant political repercussions when their private disagreements were aired in public.

12The locus of the conflict resides in the dual role of the cabinet’s senior legal officer. In Canada, an attorney general is simultaneously the minister of justice. The latter is partisan and political; the former ought not to be. An attorney general is “the person responsible for defending the rule of law” who puts the public interest first (MCLELLAN 2019, 6 and 10; see also BEZANSON 2019; DEVLIN and FRAME 2019). A minister of justice participates in developing public policy, provides legal advice to the cabinet, and is not required to have any legal training. The Minister of Justice and Attorney General of Canada is therefore an officeholder whose two roles sometimes conflict.

13The role tensions are embodied in interpretation of a constitutional convention that originated from a statement in the United Kingdom’s House of Lords in 1951. Attorney General for England and Wales Hartley Shawcross stated that, when deciding whether or not to proceed with a criminal prosecution, it is up to an attorney general to weigh available information, including the broad public policy implications, and to be the one to make a final decision (STENNING 2009, 344). The Shawcross doctrine shields an attorney general from “pressure” of colleagues advocating for special treatment in criminal prosecutions yet acknowledges the need to acknowledge “political considerations” (BEZANSON 2019; DION 2019, 13-14, 51-53; MCLELLAN 2019). An attorney general must therefore contemplate the political aspects of a criminal case, but must not be pressured to render a decision.

14Historically, a Canadian attorney general who opted to interfere with a decision to prosecute could evade public scrutiny. To reconcile that, the Conservative government led by Stephen Harper introduced the Director of Public Prosecutions Act (2006), which created the Public Prosecution Service of Canada. The Act assigns prosecutorial decisions to the director of public prosecutions (a public servant), unless the attorney general (a politician) overrules the director. If so, then the attorney general’s decision must appear in the Canada Gazette, the government’s official newspaper (CANADA 2006a).

15Enter SNC-Lavalin. The company employed approximately 9,000 people in Canada in 2019, including 3,400 in Quebec. One of its largest shareholders is the Caisse de dépôt et placement du Québec, which manages the Quebec Pension Plan. From 2001 to 2011, SNC-Lavalin Construction placed $127 million in two shell companies, and millions of dollars were given to the son of Libyan dictator Moammar Gadhafi on top of paying for an assortment of luxury personal expenses (LA PRESSE CANADIENNE 2019a). In return, the Libyan government awarded the company dozens of contracts for designing and building public infrastructure. This is exactly the type of corporate behaviour that the Organization for Economic Cooperation and Development (OECD) wants to stop. In 1999, an OECD convention took effect for member nation-states, including Canada, to combat the bribery of foreign public officials in international business transactions. The Chrétien Liberal government passed the Corruption of Foreign Public Officials Act in response to these concerns. It was under this Act that in February 2015 the Royal Canadian Mounted Police (RCMP) laid criminal charges of fraud and corruption against SNC-Lavalin Group and two of its entities.

16If convicted, the company and its subsidiaries would be subject to a multi-million-dollar fine and be ineligible to bid on government of Canada contracts for up to a decade, as per procurement rules introduced by the Harper government, as well as Quebec government contracts. A criminal conviction would also be a major stain on the company’s global brand. SNC-Lavalin’s public stance was that it no longer employed the executives involved with the alleged crimes and warned that it might be purchased by a foreign multinational that would relocate the Montreal headquarters outside Canada (BLACKWELL 2014). If so, thousands of Canadian jobs would be lost, particularly in Quebec. It was therefore a regionalized issue of growing political concern in that province whereas the rest of Canada had little to no awareness or economic stake.

17During the Fall 2015 federal election campaign, Justin Trudeau pledged to do politics differently in Ottawa, a purposeful contrast with the hyper-control of the Harper PMO. A Liberal government would feature a greater role for women, a renewed relationship with Indigenous peoples, policy decisions based on evidence, more transparency, stronger parliamentary committees and an end to the abuse of omnibus bills. In a campaign interview, Trudeau raised concern about “the trend towards more control from the Prime Minister’s Office” that originated with his father and stated that he “actually quite like[s] the symmetry of me being the one who’d end that” (quoted in CBC NEWS 2015).

18In November, the Liberals formed a majority government. The party held 40 seats in Quebec, of which 25 were in the Montreal region, including one held by the new prime minister. After the swearing-in ceremony, Trudeau announced that “government by cabinet is back,” thereby pronouncing that his ministers would have more say in contrast with Stephen Harper’s style of governing (VAN DUSEN 2015). Two of the rookie MPs appointed to cabinet were Minister of Justice and Attorney General Jody Wilson-Raybould and Minister of Health Jane Philpott. The PMO later issued a behind-the-scenes photograph of the moment that Wilson-Raybould was offered the position, adding to early impressions that she and Trudeau were simpatico (Figure 1).

Figure 1: Justin Trudeau Offers Jody Wilson-Raybould the Position of Minister of Justice and Attorney General of Canada, as PMO Staff Look On

Figure 1: Justin Trudeau Offers Jody Wilson-Raybould the Position of Minister of Justice and Attorney General of Canada, as PMO Staff Look On

Pictured, left to right: Jody Wilson-Raybould, Katie Telford, Gerald Butts, Justin Trudeau
October 29, 2015

Source: SCOTTI (2016)

  • 2 SNC-Lavalin, the Business Council of Canada and Power Corporation helped fund the IRPP research.

19The formation of a Liberal government was a political opportunity for SNC-Lavalin to step up the public relations campaign that began earlier that year (VAILLES 2015). In December 2015, the company was approved to continue bidding on federal government contracts while facing the criminal charges, continuing a softening that the Harper Conservatives had recently rolled out in response to industry lobbying (SILCOFF 2015). In early 2016, a sustained advocacy campaign got under way. It was in a meeting with the CEO that Trudeau learned of the company’s interest in a negotiated agreement, whereupon the prime minister asked a senior adviser to look into the matter and monitor developments. Company representatives did not meet with Wilson-Raybould, presumably because of the Shawcross doctrine (DION 2019, 6; WILSON-RAYBOULD 2019a). Political staff and public servants across a swath of central agencies and departments were soon discussing the possibility that Canada would introduce rules to permit deferred prosecution agreements (DPAs), used in the United States and United Kingdom. A DPA suspends the criminal prosecution, as long as the accused follows the terms of the agreement. The charges are eventually withdrawn if the company is deemed to have complied with the agreement. A Montreal-based think tank published a report recommending that Canada adopt a DPA regime which would “ensure the Canadian firms compete on a level playing field with foreign competitors” (INSTITUTE FOR RESEARCH ON PUBLIC POLICY 2016, 15). This formed the crux of SNC-Lavalin’s position as well as that of other Canadian businesses with foreign interests.2

20The cabinet discussed the DPA idea on several occasions and the Department of Justice developed a proposal to amend the Criminal Code. Few details are available because such deliberations are shielded by cabinet confidence privileges and someone who breaks that covenant risks being charged with breach of trust, a crime punishable by up to five years. We do know that as a matter of process Minister Wilson-Raybould’s name would have to be on the memorandum to the cabinet.

21As the government was preparing a bill to amend the Criminal Code, an incident arose in February 2018 signalling that the prime minister and attorney general were open to politicizing the rule of law. In a controversial criminal case, a Saskatchewan jury found a white man not guilty of murder for fatally shooting a young Indigenous man who was part of a group causing mischief on the farmer’s property. The acquittal led to public protests by Indigenous peoples amid allegations of a discriminatory legal system. Calls on Twitter by Trudeau and Wilson-Raybould to “do better” were buttressed by Philpott tweeting a need to “improve justice & fairness.” The commentary alarmed some members of the legal community who voiced concern about politicians compromising the independence of the criminal justice system (CBC NEWS 2018).

22The next month, Minister of Finance Bill Morneau (a Toronto MP) presented the 2018 budget implementation bill. Under Harper, these omnibus bills became notorious for containing proposals that the government did not want to receive scrutiny, a practice that the Liberal platform deemed “undemocratic” (LIBERAL PARTY OF CANADA 2015, 30). Yet near the end of the 582-page document was a proposal to amend the Criminal Code “to establish a remediation agreement regime,” including a provision that such an agreement could be negotiated if an alleged offence occurred before the Act was granted royal assent (CANADA 2018). The amendment was included for reasons of expediency and because Minister Wilson-Raybould was unwilling to be the spokesperson (DION 2019, 9). The government was going to frame the DPA matter as an economic issue.

23SNC-Lavalin lawyers were already in touch with the Public Prosecution Service of Canada before MPs scrutinized the budget bill in May 2018. At the Standing Committee on Finance, members put questions to a public servant with the Department of Justice. It was the first time that many, including Liberal backbenchers, learned about DPAs. Some were perplexed and reluctant, even on the government side: one Liberal MP said that the whole idea “leaves a bad taste in my mouth,” while the Liberal chair remarked “there is a huge question of whether this should be in a budget bill” (EASTER 2019). During the budget estimates process, the Criminal Code amendment was the subject of a single question from a Conservative MP, to which the finance minister responded that the change would help the economy (MORNEAU 2018). Perhaps the first public sign of tension occurred when a Senate committee reviewing the omnibus bill was informed that Minister Wilson-Raybould was unavailable to appear to address questions. The budget passed third reading on June 6; she was among those voting in favour of it. It was now a foregone conclusion that remediation agreements would soon be added to the Criminal Code of Canada.

24In early September 2018, the director of public prosecutions notified the Office of the Attorney General that she would not authorize a deferred prosecution agreement for SNC-Lavalin, which the public servant later disclosed was because of “the severity and breadth of the offence” coupled with the company’s legal history (FIFE 2020). A ministerial staffer informed the Prime Minister’s Office and the finance minister’s office. Wilson-Raybould researched the matter, decided not to intervene, and apprised the PMO that she would let the director’s decision stand.

25The stance befuddled the prime minister, the finance minister and their political staff. Many conversations were held that month. SNC-Lavalin representatives delivered a presentation to the Department of Finance showing that a criminal conviction would split up the company and result in its headquarters being moved to another country (DION 2019, 21-22). In a mid-September meeting, the prime minister and the clerk—Michael Wernick, the non-partisan head of the public service—warned Wilson-Raybould of potential economic impacts. In another encounter, Morneau did the same after she requested that the finance minister’s staff cease pursuing the matter with her staff. In a phone call with her, Wernick delved into partisan politics by pointing out that the Quebec election campaign was under way and that Trudeau is a Quebec MP. Squabbling erupted among political staff, including between the finance minister’s office and the attorney general’s office, with different interpretations about whether the prime minister, his staff and other officials were directing the attorney general about what to do.

26In October, SNC-Lavalin publicly disclosed that the government had denied its request to negotiate an agreement. The PMO asked the director of communications in the justice department to contact news media with the following clarification: “The director of public prosecutions made the decision. It is independent of the government of Canada” (WILSON-RAYBOULD 2019b, APPENDIX B). That month SNC-Lavalin’s representatives lobbied ministers, at least one of whom discussed the issue with Wilson-Raybould. The PMO decided to seek external legal advice about the authority of the attorney general so that she could better equip herself to consider the public interest. The company stepped up its efforts. It applied for a judicial review of the director of public prosecutions’ decision based on the economic implications of a criminal prosecution. Its representatives provided government personnel with a legal opinion from a former Supreme Court justice declaring that “a deliberate decision from the centre” would be required (DION 2019, 26). That opinion circulated among senior PMO staff and numerous ministers but not the attorney general. SNC-Lavalin’s CEO wrote a letter to the prime minister seeking a meeting. The Privy Council Office recommended that Trudeau refer the request to Wilson-Raybould, which he did.

27In November, the PMO worked out strategies to authorize a deferred prosecution agreement, including bringing in a former chief justice of the Supreme Court as a mediator. According to Trudeau, his chief of staff Katie Telford did not tell him about this idea (DION 2019, 30). Early that December, Gerald Butts, the prime minister’s principal secretary, met with Wilson-Raybould to discuss the file. A week later Scott Brison, the president of the Treasury Board, informed Butts that he would retire from politics in the New Year. That unexpected news coincided with Wilson-Raybould’s sending a letter to the prime minister emphasizing that the Public Prosecution Service of Canada “is solely responsible” for decisions on DPAs and that it “operates at arms-length and is independent” (WILSON-RAYBOULD 2019b, 7). Telford and Butts urgently summoned the justice minister’s chief of staff to urge a resolution in order to save jobs. The next day, December 19, the clerk spoke with the attorney general by telephone to convey that the prime minister was “quite determined [...] to get it done one way or another” in order to preserve 9,000 jobs with “a signature Canadian firm” (WILSON-RAYBOULD 2019b, 13). Wilson-Raybould repeated that she would not support political interference in prosecutorial independence. They were at an impasse.

28On January 7, 2019, Justin Trudeau phoned the attorney general to advise that she was being reassigned. It was the first time since mid-September that they had directly spoken; other communication about SNC-Lavalin had occurred through intermediaries. It later emerged that Wilson-Raybould turned down the position of minister of Indigenous services because of her opposition to the Indian Act (BUTTS 2019). A cabinet shuffle on January 14 was spun as predicated by the need to fill an unexpected vacancy. Wilson-Raybould was shuffled to veterans’ affairs, a lower-profile role that struck some as unusual, and Jane Philpott became president of the Treasury Board. Montreal MP David Lametti was promoted to become the new Minister of Justice and Attorney General of Canada.

29A parliamentary convention is that ministers do not speak about their former portfolios. However, Wilson-Raybould tweeted a letter of reflection about her service in the vacated portfolio, which included the following cryptic passage:

It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. (WILSON-RAYBOULD 2019a; 2019d)

30The remarks signalled that something was amiss but lacked context for the outside world. Similarly, reasons were not apparent why Wilson-Raybould’s chief of staff was transferred to veterans’ affairs, instead of the normal practice of providing continuity by remaining in the Department of Justice.

31Trouble was brewing. On February 5, the new minister of veterans’ affairs informed Butts that Robert Fife, the Globe and Mail’s Ottawa bureau chief, was preparing a story on SNC-Lavalin. Wilson-Raybould relayed that she “did not say anything” and had recorded her conversation with Fife. “He seemed to know a great deal. Not sure how this could be,” she wrote to Butts (WHERRY 2019, 294). A well-honed image of government unity shattered when the story broke two days later.

The SNC-Lavalin Affair: Executive Resignations and Caucus Expulsions

32Unnamed sources were the foundations of successive news reports that brought the dispute into the open. On February 7, 2019 the Globe and Mail reported that the PMO had repeatedly urged that the attorney general to forego prosecuting SNC-Lavalin. A press secretary stated that the “Prime Minister’s Office did not direct the attorney general to draw any conclusions on this matter” (FIFE, CHASE, AND FINE 2019). Trudeau repeated the “did not direct” line when the media asked him to respond to the allegations, and added that the allegations were “false” (FIFE AND CHASE 2019). On February 9, the Canadian Press reported criticisms from well-placed government personnel about Wilson-Raybould being a “difficult” colleague (RABSON 2019). The news agency later acknowledged that reporting about nameless sources who cast aspersions does not meet its journalistic standards.

33On February 10, the new attorney general confirmed that the government might pursue a deferred prosecution agreement – which signalled to Wilson-Raybould that her resistance to a negotiated agreement was the reason that she had been shuffled. The veterans’ affairs minister met with Trudeau, laying out her conditions for staying in cabinet, which were reportedly that he apologize to the cabinet or do so publicly; that he fire Butts, Wernick and a PMO senior legal adviser; and that he provide assurances that a DPA would not be offered to SNC-Lavalin (WHERRY 2019, 298). The next day, the New Democrats revealed that the conflict of interest and ethics commissioner had initiated an investigation. Trudeau told journalists that he had informed Wilson-Raybould in September that “any decisions on matters involving the director of public prosecutions were hers alone” (WHERRY 2019, 299). He added that as a member of the cabinet she evidently still supported the government. Hours later, the story would catapult into the dramatized personal conflict that transcends politics.

34Jody Wilson-Raybould stepped down from the cabinet on February 12. She stated in a letter of resignation posted to Twitter that a former Supreme Court justice would counsel her about speaking publicly. Among those expressing personal support on social media was Minister Philpott, defying the principle that all members of cabinet must speak with one voice. The hashtag #StandWithJody began trending. Prime Minister Trudeau held an emergency conference call with the cabinet, followed by a one-way call with the Liberal caucus to assure them that discussions on SNC-Lavalin were above board (RANA 2019a).

35On February 13, the House of Commons Standing Committee on Justice and Human Rights held an emergency closed-door meeting to explore whether to investigate the allegations. Michael Wernick was one of the public servants whom they heard from in camera. On February 14, the committee chair, a Montreal Liberal MP, suggested in media interviews that Wilson-Raybould was shuffled because she does not speak French. He apologized on Twitter. The speculation exposed a party marred by the trials of a bilingual federation: punditry in Quebec favoured negotiating with SNC-Lavalin, whereas political commentators in the rest of Canada favoured prosecution (SMITH 2019). The former included Quebec Premier François Legault who called upon the federal government to settle the criminal case to prevent a foreign takeover and job losses in Montreal.

36The story grew when the prime minister’s principal secretary resigned on February 18. In his resignation letter on Twitter, Gerald Butts denied that anyone in the PMO pressured the former attorney general and explained that he was resigning so as not to be a distraction. The next day the cabinet spent two hours deliberating a request from Wilson-Raybould to address them before agreeing to let her in. She was unapologetic at the cabinet meeting. Afterward, the ex-minister took her regular spot on the government front benches in the House of Commons.

37The Liberals’ national caucus meeting on February 20 was almost entirely devoted to the need for unity. Trudeau apologized for not defending Wilson-Raybould against what many, including the Union of BC Indian Chiefs, were condemning as racist and sexist media portrayals. Afterward, the Liberals voted down an NDP motion urging the prime minister to waive solicitor-client privilege to permit the former attorney general to reveal what had transpired and calling for a public inquiry. Wilson-Raybould, now a Liberal backbencher, did not vote but did inform the House that she needed the prime minister to waive solicitor-client privilege and cabinet confidentiality in order “to speak my truth” (MACCHARLES AND CAMPION-SMITH 2019).

38The justice committee began hearing public testimony on February 21. A strange preamble from Wernick that he worried about the possibility of an assassination in the upcoming federal election campaign overshadowed the rest of his remarks. On February 25, Trudeau authorized an order-in-council to extend a limited waiver of cabinet confidence so that Wilson-Raybould and others could testify. Canadian news outlets were now treating developments as breaking news, implying that the prime minister’s own political future was at stake.

39On February 27, with the national news networks cutting away for live coverage, Wilson-Raybould met with the justice committee for approximately four hours. She testified about experiencing sustained pressure from 11 people in central agencies. She singled out the prime minister and, in the PMO, his principal secretary, the chief of staff, the director of policy, two senior advisers and a policy adviser; the finance minister and his chief of staff; the clerk of the Privy Council; and the deputy minister of justice (BAUM, GRANT, AND STUECK 2019). Wilson-Raybould alleged that meetings, phone calls, emails and texts included “express statements regarding the necessity of interference in the SNC-Lavalin matter, the potential of consequences and veiled threats if a DPA was not made available to SNC” (WILSON-RAYBOULD 2019a). Trudeau was among those who had urged a solution. The former attorney general made her position clear: she had taken a principled stand of safeguarding the rule of law from attempted politicization by the prime minister and his agents.

40The testimony hinted at communications management thinking in the PMO. Trudeau’s chief of staff apparently offered reassurances that, if the then attorney general was nervous about overruling the director of public prosecutions, they would “line up all kinds of people to write op-eds saying that what she is doing is proper” (WILSON-RAYBOULD 2019a; 2019b; however, see BUTTS 2019). One MP’s questioning led Wilson-Raybould to urge an examination of whether or not the jointly held roles of minister of justice and attorney general should be bifurcated, as occurs in the United Kingdom. The Conservatives also noted the long-standing professional relationships between two vice-presidents at SNC-Lavalin and two PMO staff involved with the file. Afterwards, Conservative leader Andrew Scheer asserted that Trudeau had lost the moral authority to govern and called on the prime minister to resign. NDP leader Jagmeet Singh repeated the party’s calls for a public inquiry. Trudeau ignored them.

41The executive instability was punctuated by more cabinet changes. On March 1, a cabinet shuffle filled the vacancy created by Wilson-Raybould’s departure. By this point, Philpott had advised the prime minister that the issue was so disconcerting that she too might resign. On March 4 she did. In a letter of resignation that she posted on Twitter, Philpott declared an inability to uphold cabinet solidarity over the government’s handling of the criminal case:

In Canada, the constitutional convention of cabinet solidarity means, among other things, that ministers are expected to defend all cabinet decisions. A minister must always be prepared to defend other ministers publicly, and must speak in support of the government and its policies. Given this convention and the current circumstances, it is untenable for me to continue to serve as a cabinet minister [...] Sadly, I have lost confidence in how the government has dealt with this matter and in how it has responded to the issues raised. (PHILPOTT 2019)

42Despite her lack of confidence in the Liberal government, Philpott stayed in the Liberal caucus, and for the remainder of the 42nd Parliament both she and Wilson-Raybould remained in the parliamentary offices assigned to them as ministers. Adding to the bedlam, the NDP ethics critic sent an open letter to the prime minister calling for the resignation of the clerk. In Quebec and elsewhere, cabinet ministers maintained that the dispute merely reflected diverging opinions as a component of routine governing processes (TVA NOUVELLES 2019).

43The prime minister’s former principal secretary injected a measure of calm by testifying on March 6 to the justice committee. Butts explained that private executive-level conversations are a normal political function. He professed the need for an agreement because 9,000 Canadians could lose their jobs otherwise (BUTTS 2019). If Wilson-Raybould was gravely concerned, he said, she had not made that abundantly clear to him. Butts declared that her redeployment to veterans’ affairs was a routine reassignment; wary of her refusal to move to Indigenous services, he had advised the prime minister that, “if you allow a minister to veto a cabinet shuffle by refusing to move, you soon will not be able to manage cabinet” (BUTTS 2019). The Liberals would go on to use their majority of committee votes to end the investigation.

  • 3 For information about the role of MP Caesar-Chavannes in these events, see MARLAND (2020), 289, 299 (...)

44On March 7, Prime Minister Trudeau conceded there was room for improvement in how he and his staff interact with the caucus, and that he would welcome MPs sharing their concerns (AIELLO 2019). The remarks prompted Celina Caesar-Chavannes, a Liberal MP who had served as the prime minister’s parliamentary secretary, to allege on Twitter and in an ensuing media interview that Trudeau yelled at her when she informed him that she would not seek re-election.3 A week later, the Liberals used their majority on the justice committee to deny the opposition’s request to call Wilson-Raybould to testify again. Premier Legault announced that the Quebec government might support SNC-Lavalin by purchasing shares in the company (CBC NEWS 2019).

45Another cabinet shuffle – the third in as many months – occurred on March 18. Wernick declared that he would be retiring amid pressure from the opposition about the top civil servant’s impartiality; the ethics commissioner would later rule that Wernick had not been in conflict of interest (DION 2020). Trudeau announced that Anne McLellan, who served as attorney general in the Chrétien ministry, would provide advice about whether to separate the justice and attorney general portfolios. The next day was budget day. In an election year, there should be sustained media coverage of budget goodies. That did not happen given the swirling controversy, including Caesar-Chavannes quitting the Liberal caucus on March 20 to sit as an independent.

46The presence of dissenters in the caucus compromised its team ethos. On March 20, the Liberals held regional caucus meetings prior to the national caucus meeting. British Columbia MPs accused Wilson-Raybould of leaking information to the media and harming the government (RANA 2019b). She denied doing so and affirmed her support for the party. At the Ontario meeting, MPs chastised Philpott for undermining the leader and for putting Liberal jobs on the line. The confrontation was so upsetting that Philpott did not go to the ensuing national caucus meeting at which the creation of a caucus relations office in the PMO was announced (AIELLO 2019). In the House of Commons, it was an opposition day, when the official opposition controls the agenda. A thirty-hour filibuster ensued as the Conservatives prompted voting on 257 motions related to budget estimates. The confidence convention applied, which meant that Liberal MPs had to be present to avoid losing a vote, lest the government fall. The Conservatives pledged to withdraw the motions in exchange for the full release of cabinet confidence so that Wilson-Raybould could testify again. Trudeau held firm.

47On March 21, Maclean’s published the first interview with Philpott since her departure from the cabinet. The story revealed her belief that, if pursued, overruling the director of public prosecutions would compromise the independence of the justice system. Philpott discussed the distress of whether to stay silent so as not to harm colleagues’ electoral fortunes or to stand up against perceived wrongdoing. She affirmed her support for the Liberal Party, but dangled that the PMO was withholding information. On that weekend’s political talk shows, several Liberal MPs, including Minister Melanie Joly (a Montreal MP), challenged their two rogue colleagues to come clean, while Morneau dodged questions about the origin of the claim that 9,000 jobs were at stake.

48A tipping point came on March 29 when the justice committee released an audio recording between Wilson-Raybould and Wernick that the then-attorney general had secretly recorded in December. Punditry turned to questioning her ethics instead of the prime minister’s. Seizing the opportunity, Trudeau sought caucus opinion via the regional chairs about expelling the two ex-ministers from the Liberal caucus. On April 2, the Liberal Ontario caucus discussed the former ministers. Philpott left after ten minutes. Wilson-Raybould tweeted a letter to the national caucus chair declaring her commitment to the party and a desire to “break old and cynical patterns of centralizing power in the hands of a few unelected staffers, the marginalization of hundreds of Members of Parliament with expertise and insights to offer, and the practice of governing in the shadows” (WILSON-RAYBOULD 2019c). Liberals were unmoved: a significant consensus existed within the caucus that their disruptive colleagues could not be trusted. Trudeau summoned the caucus chair to join him in a final meeting with each former minister to relay the news.

49At an emergency caucus meeting that Tuesday evening, with national media present, the prime minister announced that the two former ministers were no longer welcome to sit as Liberals. He referred to broken trust and the damage of a civil war. He singled out Wilson-Raybould making an audio recording without consent (BRYDEN 2019); the unspoken reason for expelling Philpott centred on diverting media attention from an election year budget by granting a provocative interview. Afterward, Wilson-Raybould affirmed her belief in loyalty, solidarity and teamwork while conveying a willingness to challenge political allegiances if circumstances warrant (GEDDES 2019).

The SNC-Lavalin Affair: Aftermath

50The controversy slid off the public agenda after the decoupling. In August, the parties’ election machinery was ramping up when Mario Dion, the conflict of interest and ethics commissioner, released his report on Justin Trudeau’s actions. The independent officer of the House of Commons determined that PMO staff were repeatedly informing SNC-Lavalin representatives that the door to an agreement was open while the attorney general was saying that it was closed. The commissioner’s report answered questions that some Liberal MPs held privately, such as whether the Shawcross doctrine applied (it did) and whether the Department of Finance had independently examined the economic impacts of a criminal conviction (it had not) (DION 2019, 51-53, 21). Dion concluded that “the evidence abundantly shows that Mr. Trudeau knowingly sought to influence Ms. Wilson-Raybould both directly and through the actions of his agents” (DION 2019, 44). He ruled that the prime minister had contravened the Conflict of Interest Act, which states that a public office holder must not “seek to influence a decision of another person so as to…improperly further another person’s private interests” (CANADA 2006b, s. 9). The Act does not provide for significant penalties.

51The prime minister accepted responsibility but disagreed with the commissioner’s conclusion and said that he could not apologize for defending Canadian jobs. Trudeau committed to acting on the McLellan report, which recommended maintaining a joint position in part because an attorney general cannot be divorced from political considerations (MCLELLAN 2019). Among the recommendations was the need for a protocol to clarify the consultation process within the government. The Conservatives, supported by the NDP, called for the commissioner to testify at the Standing Committee on Access to Information, Privacy, and Ethics. The motion failed. Liberal Party support stabilized in public opinion surveys, indicating that a majority of Canadians and Quebeckers had put the controversy behind them (LA PRESSE CANADIENNE 2019b). The 42nd Parliament was dissolved on September 11.

52Normally, when a prime minister announces that the governor general has agreed to a general election, the communications strategy is to present a rhetorical frame that influences what the media ought to focus on. Instead, Justin Trudeau had to contend with yet another Globe and Mail scoop, this time alleging that his refusal to withdraw cabinet confidentiality was stymieing the RCMP’s investigation of possible obstruction of justice (LEBLANC AND FIFE 2019). Nevertheless, the topic did not attract much attention on the campaign trail. The Conservatives pledged to hold a public inquiry and to introduce legislation allowing the RCMP to apply to the Supreme Court of Canada to obtain information shielded by cabinet confidentiality. At the English leaders’ debate, Trudeau repeated the line of standing up for Canadian jobs, and during a French leaders’ debate he remarked that other countries have DPAs. The topic arose tangentially whenever the national media checked in on the independent re-election campaigns of Wilson-Raybould and Philpott. More salient issues dominated, such as climate change.

53Election Day was October 21, 2019. The Liberals held on to power with a minority of seats and reclaimed the riding held by Philpott, who placed third. However, the Conservatives won the popular vote, the Liberals were shut out in Alberta and Saskatchewan, and regional frustrations translated into major gains for the Bloc Québécois. In Vancouver, Wilson-Raybould became the first federal independent candidate be elected since 2008 and the first woman to do so since party labels appeared on federal ballots in 1972. “This win means that it’s okay to stand up for what you believe in, to speak your truth, to act with integrity,” she said to a cheering crowd (MACDONALD 2019).

54The issue came to an abrupt conclusion within a month of the new cabinet being sworn in. As per a recommendation in the McLellan report, Attorney General Lametti took a revised oath to “uphold the Constitution, the rule of law and the independence of the judiciary and the prosecutorial function” (NATIONAL POST 2019). That wording also appeared in his ministerial mandate letter wherein Trudeau directed him to act on the report’s recommendations, though the letter did not mention DPAs. As 2019 drew to a close, a former vice-president of SNC-Lavalin was found guilty of fraud and corruption for coordinating millions of dollars in kickbacks to the Gadhafi regime. The company capitulated a few days later.

55A plea deal between the director of public prosecutions and SNC-Lavalin Construction was announced on December 18. The subsidiary pleaded guilty in the Court of Quebec to a single count of fraud over $5,000. It was assessed $280 million in fines, put on probation for three years and became subject to periodic reviews by an independent monitor. All other charges were stayed. Because fraud had been committed against a foreign country, and not against Canadian governments, the company was deemed eligible to bid on government of Canada contracts. In a statement, the company indicated that it did “not anticipate that the plea will have any long-term material adverse impact on the company’s overall business” (SNC-LAVALIN 2019). Trudeau and Lametti emphasized that the plea deal was an independent decision; they omitted that it was a political decision not to intervene. Independent MP Wilson-Raybould turned the page. “The justice system did its work. It is time to move forward and for the company to look to its future,” she tweeted (FIFE AND CHASE 2019). In February 2020, the Autorité des marchés publics in Quebec announced a five-year ban on multiple SNC-Lavalin entities from receiving Quebec public sector contracts. The company repeated its line that there would be no long-term implications for its business operations (FRIEDMAN 2020).

Discussion

56In many ways, the reasons propelling these ministerial resignations and caucus expulsions travelled a timeworn path. On the surface, Jody Wilson-Raybould and Jane Philpott were the latest ministers to quit after being unable to tolerate a prime minister’s leadership and another case of MPs being expelled for disrupting caucus unity. Loose comparisons can be made with Doug Harkness who resigned over a lack of ministerial autonomy in 1963 and with Chubby Power who was re-elected as an independent Liberal after stepping down in 1944. Yet such pithy observations would gloss over the many extraordinary political aspects of the SNC-Lavalin affair.

57The scope of resignations was the broadest in the history of the government of Canada. The episode claimed two high-ranking ministers, the clerk of the Privy Council and the prime minister’s principal secretary. A second blow was the separate events of the prime minister’s former parliamentary secretary quitting the Liberal caucus and the ex-ministers being booted. Prime Minister Trudeau went on to lead his party to re-election, albeit reduced to a minority government, making him more like Mackenzie King than Mackenzie Bowell or John Diefenbaker – except that, unlike King, the ministerial resignations were an upsetting surprise that caused him to frantically manage the political fallout.

58A significant variation from the Manitoba schools question revolt, the conscription crisis and the Bomarc missile crisis is that those polarizing issues had commanded national attention for years by the time ministerial resignations erupted. In contrast, the SNC-Lavalin issue was relatively obscure and soon vanished from the public consciousness, albeit less so in Quebec. Leaks, resignations, allegations and parliamentary committee testimony raised awareness that a polarizing policy issue even existed. Punditry emphasized the familiar instead of delving into the complexities of the Shawcross doctrine or DPAs: well-connected corporate interests lobbying for privileged status, politicians bending the rule of law, special treatment for Quebec versus narrowmindedness by English Canada, power concentrated in the PMO, media misogyny and racism, partisan loyalties, and so forth. For many, the root of the concern was the alleged disrespect of an Indigenous woman minister by a self-declared feminist prime minister who had promised Indigenous reconciliation and decentralized power (BEZANSON 2019).

59The media storytelling was sustained by a steady flow of information that was bolstered by the intrigue of state secrecy. Social media exposed and amplified divisions, with more immediacy and reach than ever before, and was a mechanism for disseminating letters of resignation. The authorization of a limited waiver of cabinet confidence and of solicitor-client privilege so that the main participants could testify, combined with divulging information to the ethics commissioner, meant that there was a public airing buttressed by a trove of tabled documents. Conversely, the spiral of silence among most Liberal MPs was palpable.

60We now have greater insight into how the prime minister’s courtiers operate. Once senior staff had a sense of Justin Trudeau’s position, they managed the file, assumed that they were acting on his behalf and did not always keep him abreast of pertinent developments (DION 2019, 29-36). Similarly, the clerk of the Privy Council sometimes conveyed messages to ministers different from how the prime minister intended them. As his lawyers tell it, Trudeau is not responsible when his staff do not follow his directions (DION 2019, 37-38). The post-election integration of Chrystia Freeland as deputy prime minister into the PMO’s operations might induce greater accountability, although by design Liberal backbenchers are still shut out from government decision-making.

Conclusion

61Justin Trudeau promised to do politics differently. Allegations of political elites engaging in backroom discussions about bending the rule of law for a Quebec-based company struck many as more of the same. But once internal disputes became public, Trudeau set aside conventional wisdom that leaders who practice strict, swift discipline can save themselves the grief of a political melodrama that undermines their leadership. Playing against type might have informed his learning: when the WE Charity scandal broke in mid-2020, he quickly apologized for not recusing himself from cabinet deliberations given the familial connections to WE being awarded a government contract. More ruthlessly, he forced Finance Minister Morneau out of politics, authorized the release of heavily redacted documents and had the governor general prorogue Parliament to thwart parliamentary committee investigations. There can be no doubt that the opposition leader who promised to “end” the trend of centralized control has evolved into a prime minister who has learned to practice it.

62The many layers of this high-profile policy disagreement – regional pressures, identity politics, rule of law, economic implications, electoral repercussions, caucus unity – obscured a pathway to safely exit the political maze. Cabinet confidences means that the main actors might never fully disclose what transpired; to learn more, we might have to wait until 2038 when records of cabinet deliberations become available. Regardless, sufficient information exists to establish that the SNC-Lavalin affair is among the most spectacular cases of ministerial resignations and party discipline in Canadian history, rivaled only in scope by the nest of traitors who succeeded in replacing the prime minister in 1896.

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Notes

1 This is a revised version of chapter 11 in MARLAND (2020), which focuses on party discipline and features original interview data. Some information provided by participants is woven throughout this article to fill in details not publicly reported.

2 SNC-Lavalin, the Business Council of Canada and Power Corporation helped fund the IRPP research.

3 For information about the role of MP Caesar-Chavannes in these events, see MARLAND (2020), 289, 299-301.

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Table des illustrations

Titre Figure 1: Justin Trudeau Offers Jody Wilson-Raybould the Position of Minister of Justice and Attorney General of Canada, as PMO Staff Look On
Légende Pictured, left to right: Jody Wilson-Raybould, Katie Telford, Gerald Butts, Justin Trudeau October 29, 2015
Crédits Source: SCOTTI (2016)
URL http://journals.openedition.org/eccs/docannexe/image/4064/img-1.jpg
Fichier image/jpeg, 140k
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Alex Marland, « The SNC-Lavalin Affair: Justin Trudeau, Ministerial Resignations and Party Discipline »Études canadiennes / Canadian Studies, 89 | 2020, 151-177.

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Alex Marland, « The SNC-Lavalin Affair: Justin Trudeau, Ministerial Resignations and Party Discipline »Études canadiennes / Canadian Studies [En ligne], 89 | 2020, mis en ligne le 01 juin 2021, consulté le 29 mars 2024. URL : http://journals.openedition.org/eccs/4064 ; DOI : https://doi.org/10.4000/eccs.4064

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Alex Marland

Alex Marland is a Professor of Political Science at Memorial University of Newfoundland. He is trusted by members of the public sector in Canada to respect their conditions for sharing information about what goes on behind the scenes in Canadian politics and governance. His book Brand Command: Canadian Politics and Democracy in the Age of Message Control (UBC Press, 2016) won the Donner Prize for best public policy book by a Canadian. This article is a condensed version of a chapter from his forthcoming book Whipped: Party Discipline in Canada, to be published by UBC Press in September 2020.

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