Contravention of section 9 of the Conflict of Interest Act found in report released by Commissioner Dion
Ottawa, August 14, 2019
Conflict of Interest and Ethics Commissioner Mario Dion today released the Trudeau II Report, an examination of the allegation that the Prime Minister sought to influence the Attorney General of Canada in her decision on whether to intervene in a criminal prosecution involving SNC‑Lavalin.
After reviewing evidence and several fundamental legal and constitutional principles related to this matter, Commissioner Dion found that the Right Honourable Justin Trudeau, Prime Minister of Canada, contravened section 9 of the Conflict of Interest Act (Act).
Commissioner Dion determined that, as Prime Minister, Mr. Trudeau was the only public office holder able to exert influence over the Attorney General in her decision whether to intervene in a matter relating to a criminal prosecution. He also found that other senior officials within the Prime Minister’s Office were directed, by the Prime Minister, to find a solution in a desire to use the newly adopted remediation agreement tool, also called a deferred prosecution agreement, in the criminal matter involving SNC-Lavalin.
Mr. Trudeau’s stated position in the matter was that he was concerned about the issue of potential job losses and the repercussions to the company’s employees, pensioners and shareholders. The Prime Minister’s overall aim was to consult with the Attorney General to ensure that she had properly considered the option of negotiating a remediation agreement with SNC-Lavalin. The Prime Minister and his senior officials subsequently sought over a period of many months to have the Attorney General overrule the Director of Public Prosecutions’ decision to not invite SNC-Lavalin to enter into negotiations towards a remediation agreement. Commissioner Dion found that these senior officials, who included both senior ministerial staff and public officials, would not have acted without a full and clear appreciation of the Prime Minister’s position on the matter.
In the report findings, Commissioner Dion reviewed how private and public interests can take many forms, including financial or political. This led him to conclude that SNC-Lavalin’s considerable private financial interests would undoubtedly have been furthered had Mr. Trudeau successfully influenced the Attorney General in her decision to overturn the Director of Public Prosecutions’ decision relating to the company. Commissioner Dion also found that partisan political interests were improperly put to the Attorney General for consideration in the matter, contrary to longstanding constitutional principles relating to prosecutorial independence and the rule of law.
“The time it takes to complete an examination depends on a number of factors and we always strive to complete investigations within reasonable timelines so that they remain relevant. The Office conducts investigations under my direction both thoroughly and with proper diligence.” — Conflict of Interest and Ethics Commissioner Mario Dion
“To avoid potential delays in future investigations and to carry out my investigative mandate, I must have access to all documents I consider necessary to execute my duties. I am subject to confidentiality obligations for all documents, including protecting confidentiality of Cabinet documents, under both section 51 of the Conflict of Interest Act and section 90 of the Parliament of Canada Act. The decision made by the Privy Council Office to deny our Office access to a full range of Cabinet confidences meant nine witnesses were constrained in providing our Office with the full body of evidence potentially relevant to the examination. I believe that decisions relating to my access to such information should be made transparently and democratically by Parliament, not by the very same public office holders who are subject to the regime I administer.” – Conflict of Interest and Ethics Commissioner Mario Dion
“The Prime Minister, directly and through his senior officials, used various means to exert influence over Ms. Wilson‑Raybould. The authority of the Prime Minister and his office was used to circumvent, undermine and ultimately attempt to discredit the decision of the Director of Public Prosecutions as well as the authority of Ms. Wilson‑Raybould as the Crown’s chief law officer.” – Conflict of Interest and Ethics Commissioner Mario Dion
- Section 9 of the Act states that public office holders are prohibited from using their position to seek to influence a decision to improperly further the private interests of a third party, either by acting outside the scope of their legislative authority, or contrary to a rule, a convention or an established process; therefore a contravention of the Act was found to have occurred.
- There is no requirement that the alleged influence must lead to the desired result for a breach of section 9 to occur.
- The Act specifies that a private interest does not include an interest in a decision or matter (a) that is of general application; (b) that affects a public office holder as one of a broad class of persons; or (c) that concerns the remuneration or benefits received by virtue of being a public office holder.
- The Trudeau II Report cites ways in which Mr. Trudeau attempted to influence the Attorney General, Ms. Wilson-Raybould, including:
- as part of the analysis of the facts, with details and timelines that Commissioner Dion characterized as “troubling,” evidence showed attempts to have the Attorney General intervene to try to expedite the hearing;
- without the knowledge or involvement of the Attorney General, senior officials in the Prime Minister’s Office improperly continued discussions with SNC-Lavalin’s legal counsel even after the start of legal proceedings; and
- in the study of several important legal and constitutional principles central to our system of government, Mr. Trudeau acted contrary to the Shawcross doctrine and the principle of prosecutorial independence when he and senior officials under his direction put forward partisan political considerations to the Attorney General in relation to a criminal prosecution.
- As required by the Act under subsection 45(4), at the conclusion of an examination the Commissioner provides a report to the Prime Minister setting out the facts, the analysis, and conclusion. At the same time, a copy is provided to the subject of the report and then made public. Following this, as part of section 47, it is up to the Prime Minister to implement any further action.
- Following the release of the Trudeau II Report, the Office of the Conflict of Interest and Ethics Commissioner has three investigations that have not yet been reported on.
- General information about investigations under theAct, including how the Commissioner deals with investigation requests.
- The Conflict of Interest Act applies to all public office holders. Public officer holders are in a conflict of interest when they exercise an official power, duty or function that provides an opportunity to further their private interests or those of their relatives or friends, or to improperly further another person’s private interests.
- The Prime Minister’s guidelines on open and accountable government state public office holders must perform their official duties and functions “in a manner that bears the closest public scrutiny, an obligation that may not be fully discharged by simply acting within the law.”
The Office of the Conflict of Interest and Ethics Commissioner was created under the Federal Accountability Act. The Commissioner applies the Conflict of Interest Act for public office holders and the Conflict of Interest Code for Members of the House of Commons.
Source: Office of Conflict of Interest and Ethics Commissioner