Explainer: Jody Wilson-Raybould, SNC Lavalin and the Shawcross Principle

Former Justice Minister Jody Wilson-Raybould Image credit: Twitter

By: Laura Steiner

The last week in federal politics has been dominated by the story of Jody Wilson-Raybould, and the question of whether she was unduly pressured by Prime Minister Justin Trudeau or officials in his office while serving as Justice Minister and Attorney General.

The case concerned SNC Lavalin, a Quebec-based engineering firm accused of defrauding Libyan companies of approximately $30 million, and bribing Libyan government officials to the tune of $47 million over the period of 2001-2011.  If the company is found guilty, they are barred from bidding on government projects for 10 years.  In June, 2018 there was a measure passed as part of a budget legislation to allow for Deferred Prosecution Agreements (DPA)’s.  These would allow corporations to pay a fine in order to avoid criminal prosecution.

In the context of cabinet the Attorney General is supposed to be strictly neutral.  They are basically the government’s lawyer, the country’s top prosecutor.  In some countries such as the United Kingdom, they are left outside cabinet completely.  In Canada they’re separated by the office of the Public Prosecutor, whose job it is to prosecute federal offenses.  Last fall they said the company didn’t meet the requirements for this measure.  At that point the Attorney-General could have directed the Public Prosecutor to negotiate an agreement in writing.  Wilson-Raybould chose not to.

There is a legal principle that applies called the “Shawcross” doctrine.  It means the Attorney General has the option of consulting with cabinet colleagues. It also limits the other ministers to advice, and not direction.

It all hinges on the definition of pressure, and whether it veered across the line into direction.  It’s this distinction that makes even the perception of any kind of influence a big problem because it compromises the legal system’s independence.   And that’s something that concerns us all.