Wednesday, March 6, 2019

Some Thoughts Arising From Testimony Of Gerald Butts And Michael Wernick


Gerald Butts’s reason for resigning—that he didn’t want his close friendship with Trudeau to create any perceived conflict for Trudeau in that Trudeau might be thought to be protecting his close friend—on reflection makes scant sense to me. 

In or out of office, he’s Trudeau’s best friend. Invariably, they’ll be seen as supporting each other. How does resignation change that? After all, the issues involve what GB said/did *in office.*



I didn’t really understand it either. Overall looks like he did well in establishing a credible counter argument

One of the conditions for a DPP is that it must be in the public interest. Given that the whole concept is a social/economic override of an otherwise strictly legal determination, it makes sense to me that when it gets booted up to the AG from the Director of Prosecutions, the AG should be consulting her Cabinet colleagues on the public interest

Weaknesses in the government’s case to me revolve around the political fallout in Quebec that was likely really driving them.


My impression of the law is that the economic impact on the country isn’t to be taken into account when a company is charged with the international bribery and corruption charges that SNC is fighting. So whether the DPP’s call was that SNC was simply shut out by the law from DPA availability or whether she in her discretion considering all relevant things decided against that availability, that was her decision disinterestedly to make. And make it she did.

Is it the way it works that the issue then gets “booted up” to the AG or is it that the DPP reports to the AG and the AG reviews the file to ensure or satisfy herself that the DPP has properly exercised her discretion? Even if there’s no difference between these two—though I think there is, but never mind what I think about that, the issue, even as framed as you have it, is a legal one meant for independent prosecutorial determination. 

JWR satisfied herself that the DPP had so properly exercised her discretion. And that should have been the end of it. Neither of them were unaware of the potential consequences to SNC, its employees, stockholders and anyone invested in it. That was all taken into account and a decision was made. There was 0 for the pols to involve themselves in unless JWR initiated a consultation. That’s the notion of prosecutorial independence as I understand it. 

But the legal decision stuck in JT’s craw for a variety of reasons some purely political and some well intentioned. Doesn’t matter. After that the DPP’s say, as affirmed by the AG, is the last say unless something new comes up to be taken into account. And that had to be directed to the DPP and not the AG. In fact SNC continued to make representations, which the DPP dismissed, and now SNC seeks judicial review. 

That’s all as it should be. That’s the legal system in action and the DPP acting independently. JT et al’s continual incursion threatened that independence and ran afoul of Shawcross as I understand the doctrine. 

So no I don’t think, from what I’ve heard and read, that Butts made a credible counter argument. The notion of repeatedly trying to get JWR to override the DPP’s decision because jobs were at stake, among other reasons, when she told JT and Wernick early on that she’d taken her decision, which, as I noted, included taking that consequence into account, was nothing more than an attempt at political interference with prosecutorial independence and thus an attempted assault on the rule of law. 

As I see it. 

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