Apoplectic pundits, a formidable Attorney General, and a falsely convicted Native teen

Oh my, but Canada’s punditocracy is in high dudgeon.

In a piece titled, “The moral catastrophe of Justin Trudeau,” Maclean’s columnist Paul Wells, the recidivist biographer of Stephen Harper, decried “a sickeningly smug protection racket whose participants must have been astonished when [Jody Wilson-Raybould] refused to play along.”

In the National Post, patrician policy wonk Andrew Coyne demanded “heads on pikes.” Lest anyone miss his meaning, Coyne later tweeted a photo of Prime Minister Justin Trudeau and Privy Council Clerk Michael Wernick, adding, “the right heads on the right pikes.”

In the Globe and Mail, Margaret Wente, who takes delight inciting university feminists and leftists, herself fell victim to shock and dismay: “For the first time in many years, I felt ashamed for my country.”

A few less emotional pundits, Chantal Hebert, Susan Delacort, and Stephen Maher, staked out positions in the middle distance, while Heather Malick fetchingly averred there is nothing to see here.

This is not a scandal. It is not even an anecdote. It is the Ottawa equivalent of the Mail’s claim of a national backlash against Meghan’s New York baby shower.

Delacorte bemoaned Trudeau’s transition from candidate Trudeau, “a feminist guy who was going to make his relationship with Canada’s Indigenous people the most important one in his government,” to Prime Minister Trudeau, “who made life very difficult for an Indigenous woman in his government.”

I confess puzzlement at this argument (advanced more stridently by University of Alberta Political Science Professor Linda Trimble in the journal Policy Options). If Trudeau’s crime was having violated the independence of the Attorney General, wouldn’t it have been just as wrong had the AG belonged to that unfashionable cohort, old white males? Does equality mean treating indigenous cabinet ministers as frail flowers? JWR seems decidedly (and admirably) unfrail.

What the right wing pundits have missed, partly because Team Trudeau’s initial ham-handed responses obscured it, is a defense that remains open to them. If you follow the chronology JWR outlined, their heaviest arm-twisting focused not on getting her to overrule the Director of Public Proposition’s rejection of a deferred prosecution agreement for SNC Lavalin but on seeking a second opinion from a distinguished retired judge.

If the outraged pundits are right, and I think they are on this point, such an opinion would have backed the the AG’s decision. That wouldn’t have been the outcome PMO officials wanted, but it would have given them cover. “We did all we could for SNC Lavalin,” they could have told company execs and Quebec voters, “but the law is the law.”

Purists like Coyne wouldn’t have liked this, but I think it falls into the category of, “ain’t it icky to see sausage being made,” rather than, “off with their heads.” (For a far more scholarly take on the rights and wrongs of nudging an AG, see this blog post by University of Ottawa Law Professor Craig Forcese.)

Incidentally, the independence of the AG and the DPP didn’t arise out of thin air, but out of The Royal Commission on the Wrongful Conviction of Donald Marshall. As explained in a Queen’s Law Journal article by the late Justice Marc Rosenberg of the Ontario Court of Appeal, the inquiry determined that Marshall’s conviction:

demonstrated profound systemic failures in the way that justice was administered in our criminal courts. The miscarriage of justice in Donald Marshall, Jr.’s case was not, as the Nova Scotia Court of Appeal claimed, “more apparent than real.” Mr. Marshall was the victim of a seriously flawed system. The system let him down, not only in localized and idiosyncratic ways, but also because of deeply entrenched practices and biases.

Police escort Donald Marshall Jr. into court in 1971

Marshall was an impecunious Mi’kmaq teenager in a city steeped in racism. To plumb the role bias played in his conviction, the Commission considered the contemporaneous treatment given Roland Thornhill,* a prominent member of John Buchanan’s cabinet who negotiated partial forgiveness of personal bank loans while serving as Chair of the Treasury Board.

The Commission found that, while Thornhill did not himself seek favorable treatment, Attorney General Harry How, who later served as a Provincial Court Judge, pressured the RCMP not to charge him. Per Rosenberg:

[S]ystemic problems reached to the highest levels in the Ministry of the Attorney General in Nova Scotia. The Commission found that each component of the system — every check and balance — failed from the Sydney Police Force to the Department of the Attorney General. The Commission also found “a widespread lack of understanding within the system of the appropriate roles of the Attorney General, the prosecutor and the police” and “a lack of structural control and organizational independence” that made it easier for unchecked and inappropriate decisions to be made. The Commissioners concluded that confidence in the Nova Scotia system of criminal justice could be restored only through “unwavering and visible application of the principles of absolute fairness and independence.”

In the wake of the Royal Commission’s momentous report, Nova Scotia, Canada, and most provinces enacted new laws to protect prosecutors from political pressure. Nevertheless, the Commission’s consultant on the issue concluded that, “no matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character and personal integrity of the holder of the [office] of Attorney General… which is of paramount importance” (cf: Wilson-Raybould, Jody.)

Following publication of the Commission Report, the RCMP laid 17 charges against Thornhill, but eventually all were stayed or dismissed.

Imprisoning an innocent Native teenager for 11 years for something he didn’t do seems to me a genuine scandal. Pushing an Attorney General to seek a learned second opinion on a politically sensitive matter seems less obviously so.

* Disclosure: Thornhill retired to Baddeck, where he and I have become friends in recent years. On two occasions, he came within a hair of becoming premier. I think he would have made a good one.