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Canada, the show

Paul Wells: You thought this government was about family benefits and boil-water advisories? The Lavalin affair offers a glimpse of the real scene—maybe the real Canada.
Prime Minister Justin Trudeau waves to onlookers as he arrives on Parliament Hill with his newly sworn-in cabinet ministers, in Ottawa on Wednesday, Nov. 4, 2015. THE CANADIAN PRESS/Justin Tang

It all seemed so unpromising as a narrative when the Globe and Mail broke the story five days ago. Attorney general resists pressure (“from whom?” an editor’s red grease pencil should have scrawled in the margin) to put pressure on obscure public agency, to use obscure provision in the Criminal Code, to forestall trial in a stale case of fraud and bribery. In Libya. In Muammar Gaddafi’s Libya.

Well…sure, I guess. In the absence of anything spicier in the dead of this deep-freeze winter, it would do. I mean, nobody should pressure the attorney general. Bribery may be the done thing in a formally designated rogue state, but it is unpleasant and should be avoided. But the whole affair seemed a little too complex for the payoff. All setup and no punchline.

Times have changed. Quickly. On Tuesday Jody Wilson-Raybould, already demoted from her position as minister of justice and attorney general to minister of veterans’ affairs before our story began, announced her resignation from Justin Trudeau’s cabinet altogether. She has hired a former Supreme Court justice, Thomas Cromwell, to advise her on what she can say next. Which suggests she’s inclined to say something. Which will be fun when it happens.

Justin Trudeau, whose position is that he has not contributed to the debate over SNC and the Public Prosecution Service at any point, spent half a day in seclusion, figuring out how to claim nothing much had happened.  It was all reminiscent of the report from a previous ethics commissioner on one of Trudeau’s Christmas vacations, in which she was at pains to emphasize that a conversation with this Prime Minister is not, in the sense any normal person attaches to the term, a conversation, in that there is no decision made and, when you think about it, no actual public official present. Somewhere along the line we managed to make a Cheshire cat our head of government.

READ MORE: Nine subtle (and not-so) signals in Jody Wilson-Raybould’s resignation letter

Everyone’s understandably focussing on Trudeau’s remark from Monday, when he said Wilson-Raybould’s continued presence in the cabinet should speak for itself. And as long as I can take that statement along with its corollary, I like it too. But I find myself dwelling on another part of the same scrum, when he reported that, having checked with her, he could confirm he had given her no instructions on the SNC file. One assumes there’ll be more reporting on this matter from our Globe friends, but pending further information I have to say the claim is plausible. Faced with a Prime Minister who is reluctant to say anything in public, we have to concede that by Occam’s Razor, he may simply be saying nothing anywhere. And sometimes that’s even the right thing to say.

In that world does the scandal go away? Sure, depending on your definition of scandal, and again, pending further information. But increasingly, what’s fascinating to me is what this whole tableau tells us about the country even if nobody did anything air-quotes “improper.” As Michael Kinsley always said, the scandal is what’s legal. Or you don’t even have to call it a scandal. The story is what’s legal. The spectacle. The pageant.

For more than three years since the smiling son of the other Trudeau was elected, I kind of thought the attention of the highest figures in government was focussed, at least most of the time, on the middle class and those working hard to join it. On more generous child benefits and beefed-up public pensions, on infrastructure and innovation and boil-water advisories and soothing the American president.

It turns out that all of that was absolutely going on, but it wasn’t the whole story. It wasn’t even the most interesting part of the story. It sure didn’t have the best cast. The child benefits and the infrastructure suffered from distinctly TV-grade casting: a second-generation human resources executive, an Edmonton city councillor. They speak guardedly. They’re always happy to tell you what the decision is, just as soon as it gets made somewhere else.

But now it turns out that for the entire time, there was another show going on, with altogether more glamorous casting, somewhere behind bouncers and a rope line you didn’t even know were there. Since Thursday we’ve had tantalizing glimpses of the real show. And, perhaps, of the real Canada.

Eighty meetings, the SNC-Lavalin lobbyists had with tout ce qui bouge à Ottawa. The lobbyists included Bill Pristanski, who used to run the weekly senior-staff meetings when Brian Mulroney was prime minister. And Bruce Hartley, who used to get Jean Chrétien on the phone if you needed him, and still can. The company’s lawyers include Frank Iacobucci, 81 years on this earth and not a minute wasted, puisne justice (ret’d) of the Supreme Court of Canada, Interim President (ret’d) of the University of Toronto, the very Laurentian rock made flesh.

The chairman of SNC’s board used to be Lawrence Stevenson, founding CEO of Chapters, a paratrooper in his youth, a retailer in later life, strong and true. But by late 2017 Stevenson was not well-connected enough for the task at hand, and SNC made haste to replace him as board chair with—with—avert your gaze, ye mortals—with Kevin Lynch, Clerk (ret’d) of the Privy Council, the man who—before he became Clerk, operating at barely lower levels of exaltation—built Chrétien’s industrial policy, designed the fabled Canada Foundation for Innovation—and then finally bent the very bureaucracy itself to Stephen Harper’s whim. The man wields jargon the way a ninja tosses throwing stars.

A company replaces Lawrence Stevenson with Kevin Lynch when it is, at least temporarily, out of the business of building roads and dams because it finds itself, full-time, in the business of crafting Deferred Prosecution Agreements.

The entire country, we learn, was in the business of crafting Deferred Prosecution Agreements. Or at least everyone behind the rope line was. Pristanski and Hartley, singly or in combination, had quiet meetings with Jagmeet Singh and Andrew Scheer and that guy from Trudeau’s Quebec desk and that guy who ran Nav Bains’s office and the guy in François-Philippe Champagne’s office and so-and-so and the other one and on and on and on, world without end.

Not secret meetings—it’s all scrupulously logged in the lobby register. And the whole glorious process led precisely where it was supposed to lead, where anyone involved would have told you it was going to lead, if you had thought to ask: to a new chapter inserted into the Criminal Code, Part XXII.1, “Remediation Agreements.”

Right there where everyone would naturally think to look, immediately after Part XXII, “Procuring Attendance.” All inserted in the way one would naturally do this sort of thing, in Division 20 of Part 6 of the 385-page Budget Implementation Act, 2018  of a government that was elected in 2015 on a promise to resist the temptation to pass numbing kitchen-sink omnibus bills, and which is ready to fight you if you dare to claim this is an example of that.

What? You missed the vote? Look, Bill and Bruce and Frank and Kevin and the guy from Bains’s office and all the rest of the cats did not miss the vote, and if you can’t keep up, you can’t keep up. There’s only so much the rest of us can do with the rest of you.

Anyway. Now we have Remediation Agreements, aka Deferred Prosecution Agreements, written into the Criminal Code. They are interesting things. They trade certainty for a wild goose chase. If a company is facing fraud or bribery charges, it may negotiate with a prosecutor to pay a hefty fine instead of going to trial. The fine goes, in large part, to court-designated innocents who lost money due to the company’s original infraction. It’s restitution, not merely the cost of doing business. A judge has to sign off on the final deal. It’s all very much on the up-and-up.

READ MORE: Jody Wilson-Raybould fallout detonates Real Change™ brand

The opportunity, the upside, is that prosecutors and defence lawyers, some of them potentially puisne justices (ret’d) of the Supreme Court of Canada, just saying, don’t have to spend years in court at tremendous cost in energy and treasure, all for highly hypothetical eventual outcome. And the corporation avoids conviction, and lives to build and hire another day.

This sort of thing is done all over, we are told. France and Australia and Great Britain, we are told. Although, funny thing, what we are less often told is that Remediation Agreements, aka Deferred Prosecution Agreements, are novel instruments of only a few years’ standing or less, even in most of those other countries. But we could definitely have a conversation about the wisdom of this sort of thing, if this were the sort of country where we have conversations.

So anyway, Bill and Bruce and Frank and Kevin and the rest of the cats behind the rope line get this thing into the Criminal Code, and everyone is good to go, and then eventually the file lands on the desk of one Kathleen Roussel. And damned if she doesn’t do something unexpected. She looks at the file, and at the application for a Deferred Prosecution Agreement, which would be the first such thing she or any Canadian has ever granted, because they’ve only been in the law, at this point, for several days. And then maybe she gets up from her desk and takes a short walk to check the brass plate bolted to her office door. The one that says “Director of Public Prosecutions.” And she says, first to herself and then to the world, “You know what? I’m gonna have a public prosecution.”

This will not do. This is not the conclusion to which the labours of Bill and Bruce and Frank and Kevin and the cats have been tending for all of these years. (Hey, fun thought. Older readers will recall the days of Meech and Charlottetown, the great constitutional upheavals of 1987-1992, when it was considered unseemly for important decisions about the future of the country to be made behind closed doors by men. Glad we got past that!) Anyway. The government has to decide how to respond. The Attorney General has to decide how to respond. The AG discusses this with the PM, who confirms, months later, that she told him that he told her that she can do as she likes. And eventually she’s out of the cabinet—first half-way, more or less, then entirely. She hires a lawyer to decide next steps, one Thomas Albert Cromwell, puisne justice (ret’d), Supreme Court of Canada. Because you must be this tall to ride this ride.

After the whole mess breaks in the pages of the Globe, there are a few days of stunned silence and confusion, but soon enough the consensus behind the rope line begins to affirm itself across the land. It’s true, the rope-line consensus says, that the government is being asked to apply a rule change it buried in an omnibus budget bill after a full-court press by the nation’s finest lobbyists, all for the benefit of the very large corporation that lobbied for the rule change, so that the corporation might avoid a trial on serious charges.

And it’s true that the corporation, SNC-Lavalin, gave more than $100,000 in illegal donations to the Liberals over the years (and approximately 1/10 that figure to other parties), which all concerned promised to pay back just as soon as the illegal donations came to light.

And it’s true that SNC-Lavalin’s largest shareholder is the Quebec public-service pension fund, whose pet project is a light-rail network, whose main construction contractor is SNC-Lavalin. And it’s true that the head of the pension fund pushed hard for the federal government to set up an Infrastructure Bank whose only investment to date, announced on the day before a beleaguered provincial government launched an election campaign, was in the light-rail network promoted by the pension fund that is SNC’s biggest investor and which, in turn, is the rail project’s biggest contractor.

I have no evidence that any of this is less than scrupulously legal. I mean, everything since the campaign donations. Which got returned. So whaddya whaddya.

This is just the way the country works. It is the way the country has been working all along, while you thought the real game was the family benefits and the boil-water advisories and the rest of it. And, the rope-line consensus asks as it gets over the shock of last Thursday’s Globe story, do you really not want the country to work this way?

I have here, open on my browser on neighbouring tabs, six columns from six different Montreal-based news organizations arguing, in so many words, that the alternative to giving SNC a Deferred Prosecution Agreement is economic chaos. All published today, Tuesday. The Journal de Montréal predictscatstrophe.” L’actualité says “thousands of jobs” are at risk. “Why the hesitation?” asks Radio-Canada. “Must we destroy the company?” asks the best legal columnist at La Presse. “Who would benefit” from the end of SNC, “if not other big Canadian companies like Toronto’s Aecon, whose acquisition by a Chinese company Ottawa just blocked?” asks Le Devoir‘s man. “What good” would condemning SNC to “a likely death” achieve, wonders The Gazette‘s op-ed writer.

I’m not dismissing these arguments! I note only that we are now, quite clearly, in the knock-down, drag-out early days of the national debate that everyone behind the rope line had managed until now to avoid. The country will now have the conversation that the retired justices and the retired Clerk and the retired prime ministerial body man and the guy from Bains’s office and the Prime Minister of Canada, who insists he said as little in private as he was saying in public, all thought they had avoided. I’m not sure it’s a bad thing. There is certainly much to discuss.

Spare a thought in passing for Nav Bains, who on Tuesday released a 100-page report on doings in his ministry, Building a Nation of Innovators. The joke’s on him. This country doesn’t innovate. It does what it does.