For those that followed Canadian politics through the early 2000s this past couple of weeks may have seemed oddly familiar. Like in the 2000s, the federal Liberals have gotten themselves into trouble with respect to inappropriate dealings with a Quebec firm. This time the problems have arisen out of what may have been inappropriate intervention in the prosecution of an engineering firm, SNC Lavalin, for bribery in Libya. A Globe and Mail story suggested that Prime Minister Justin Trudeau put inappropriate pressure on then Justice Minister and Attorney General Jody Wilson-Raybould to offer SNC Lavalin a remediation agreement in place of a criminal prosecution. Though Trudeau has denied this, there has been ample speculation that Wilson-Raybould’s decision not to offer such an agreement played a role in Wilson-Raybould being moved from justice to veterans’ affairs in the most recent cabinet shuffle (Wilson-Raybould has since resigned from cabinet).* The scandal raises serious questions about political interference in the judicial process. At the same time, two aspects of the scandal highlight serious problems with the ability of the Canadian House of Commons to fulfil its role scrutinizing both government legislation and action.
Parliament, and in particular the House of Commons, has an important role in Canadian governance. As the most powerful part of the legislative branch (the Senate is also part of the legislative branch but exerts less influence over legislation because it is not elected), the House of Commons has a central role studying and deciding whether to pass the bills that the Prime Minister and cabinet decide to put forward. If the Prime Minister and cabinet put forward legislation that a majority of MPs feel is not in the country’s interest or that go against the views of their constituents they can change the legislation or prevent it from becoming law. The House of Commons also serves a central accountability function. They get to question the government in Question Period, forcing the Prime Minister and cabinet to defend their actions on a daily basis. Committees of MPs assigned to various areas of government activity not only subject proposed legislation to close study, but get to investigate the government’s actions should they deem such investigation necessary. These powers exist so that the decisions of government are subject to democratic accountability. Empowering MPs to scrutinize legislation and investigate government keeps Canada from becoming an elected dictatorship.
At least that is the way that it is supposed to work in theory. In practice the House of Commons often falls well short of expectations when it comes to scrutinizing the government. The combination of majority governments and party discipline, that leads MPs to be tightly controlled by their party leaders, limits the extent to which the House of Commons holds the government to account. With a majority of MPs of in the House of Commons, Trudeau faces little risk of having legislation defeated so long as Liberal MPs remain united. With MPs taking their orders from the PM (usually in the hopes that doing so will lead to a future cabinet appointment or out of fear that too much dissent will get them expelled from the party), Trudeau can count on his party staying united. With a majority on most committees and the right to deciding which Liberals get to serve on which committees, Trudeau and his cabinet ministers are relatively safe from committee investigations they might find embarrassing. Both of these problems are important to the SNC Lavalin scandal.
The way remediation agreements became an option for firms like SNC Lavalin highlights a problem with the way legislation is passed. Remediation agreements were added to Canadian law last year in the Liberal budget. If a budget seems like and odd way to change the rules for how firms of prosecuted, that is because it is. The Liberals’ budget was an omnibus bill, a bill that includes a wide range measures that are often unrelated to each other. Because this was a budget, it was referred to the House of Commons finance committee for study and scrutiny and not the justice committee. As a result, MPs assigned to the House of Commons justice committee, the MPs tasked with scrutinizing government legislation and activity that pertains to criminal law (among other things), did not get an opportunity to review an important change in the way corporations are subject to criminal prosecution. Had they had an opportunity to study remediation agreements, the justice committee may have suggested changes to the law, or they may have left it as is. But they would have had more of an opportunity to raise questions about the new legislation’s purpose and who it might benefit than a budget committee tasked largely with scrutinizing the way the government spends its money. These omnibus bills have become more and more common under both the Harper and Trudeau governments. The SNC Lavalin case highlights the way that these bills can lead to changes to legislation that do not receive proper scrutiny.
The second problem with the House of Commons that the SNC Lavalin scandal points to lies with committees’ investigative power. With serious questions coming up with respect to the PM’s conduct and whether or not he applied pressure on Wilson-Raybould to offer SNC Lavalin a remediation agreement, it would make sense for the justice committee to investigate this matter. Yet, the Liberal majority on the committee has been accused of limiting the witnesses they are willing to call as part of such an investigation, though Wilson-Raybould has now been invited to testify before the committee. The extent to which the investigation can be trusted by the public, however, will always be called into question by the fact that Trudeau and the Liberal leadership in the House of Commons decide which Liberals get to serve on the committee, and by the fact that the Liberals make up a majority on the committee.** It is highly problematic to have the Trudeau government being held to account by a committee with a majority that owe their positions on the committee to Justin Trudeau.
The House of Commons does not have to work this way. Rules with respect to what can be included in legislation could be changed to allow the Speaker of the House greater leeway to break up omnibus bills. This would have allowed legislation introducing remediation agreements to be debated separately from the budget, and would have allowed it to be studied by the appropriate parliamentary committee. The British model of committee membership selection could also be adopted. This method has committee chairs elected by a secret ballot of Members of Parliament, and members to a committee chosen by a secret ballot of the MPs in the party that MP represents. Instead of having the Liberal members of the justice committee selected by the Prime Minister and party leadership they could be elected by Liberal MPs. This would make committees beholden to all MPs in parliament instead of the Prime Minister and cabinet they are supposed to be scrutinizing. All of this would increase the of House of Commons’ power relative to the executive and allow it to do more to fulfil its role in Canadian democracy.
The SNC Lavalin scandal probably could not have been prevented by strengthening parliament. The scandal goes to questions over political interference in prosecutions and the relationship between the Prime Minister and the Attorney General. At the same time, the scandal exposes two serious concerns over the way that the House of Commons operates and its inability to fulfil its role as a body the scrutinizes the actions of the Prime Minister and cabinet. Restrictions preventing the use of omnibus bills would have made the legislation that allowed the SNC Lavalin scandal to happen subject to greater and more appropriate scrutiny. Reduced party leadership control over committee appointments would strengthen the ability of the justice committee to conduct a proper investigation of the matter. Both would lead to significant improvements on the quality of Canadian democracy.
*A short summary of the scandal is available here.
**When one includes the chair of the committee.