The scandal rocked Parliament Hill for roughly three months in the winter and spring as revelations emerged accusing Prime Minister Justin Trudeau and his senior staff of using inappropriate pressure in an attempt to get former attorney general Jody Wilson-Raybould to intervene in the Montreal firm’s court case.
SNC-Lavalin is facing charges of corruption and fraud over allegations the company bribed officials in the regime of Libyan dictator Moammar Gadhafi.
If convicted, the firm faces a potential ban of up to a decade on bidding for lucrative government contracts.
Ethics commissioner Mario Dion ruled this summer that Trudeau had broken federal ethics rules by pressuring Wilson-Raybould. The evening before the start of the federal campaign, the Globe and Mail published a report saying the RCMP has been blocked from looking into whether the case amounts to obstruction of justice because individuals have claimed they cannot speak with police due to cabinet confidentiality.
While a judicial inquiry wouldn’t void that, it could be the best available option for getting answers for the Canadian public, one lawyer says.
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“It seems that in this case, a focused judicial inquiry — given the information that we have and given the lack of action that the government has proactively taken in providing information — is perhaps the most ideal way to settle the SNC-Lavalin issue finally,” said Michael Spratt, partner at Abergel Goldstein & Partners LLP.
“A judicial inquiry removes it from the political realm. It gives controls to an independent adjudicator and means that the Canadian public will get the answers that they deserve and the answers that the government might not be willing to provide on their own.”
So what does an inquiry actually do?
Effectively, these are commissions led by a distinguished expert or judge “to fully and impartially investigate issues of national importance,” according to the government of Canada website about past judicial inquiries in the country.
There are two types of inquiries: advisory commissions and investigative commissions.
The former has a broad mandate, and an example would be the National Inquiry into Missing and Murdered Indigenous Women and Girls.
The latter is more focused and investigates a specific incident or issue: an example would be the Gomery Commission, which investigated the sponsorship scandal, or the Arbour Commission into reports of mistreatment of female prisoners at the Prison for Women in Kingston, Ont.
Inquiries have the power to issue subpoenas for witnesses as well as to take evidence under oath and request documents — but their findings, generally published in a public report containing a series of recommended actions, are not legally binding.
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Such inquiries — even investigative inquiries — are not criminal investigations.
So even if an inquiry were to be launched into the SNC-Lavalin affair, it would still not be correct to say the matter is the subject of a criminal investigation unless the RCMP were to confirm an investigation of their own, which would be conducted separately.
As of now, the RCMP has acknowledged it is looking into the matter but has not said whether it is conducting a criminal investigation.
The call for an inquiry is not new — NDP ethics critic Charlie Angus called on Trudeau to open one in February when the scandal first broke.
His urging came in the form of a motion he put forward in the House of Commons that was supported by the NDP, the Greens and the Conservatives as well as two Liberal MPs — Nathaniel Erskine-Smith and Wayne Long — who broke ranks with their party to support the motion.
Ultimately, the Liberals defeated the motion calling for a public inquiry.
Scheer was questioned on Thursday by reporters about what he hoped a judicial inquiry could accomplish, particularly given the RCMP has reportedly been stymied in its examinations by claims of cabinet confidentiality.
He said the inquiry would not seek to step on the RCMP’s toes but could bring to light information that could be useful to any separate probe the force may conduct.
“There are judicial inquiries into things that sometimes lead to RCMP charges,” he said. “Sometimes, details come to light during judicial inquiries that might not otherwise come to light so we believe both are necessary.”
Spratt said the distinct powers to compel testimony and subpoena witnesses outside the binds of the threshold that must be met for a criminal investigation could do a better job of providing answers for Canadians than the House of Commons justice committee did when it heard from legal experts, Wilson-Raybould, former clerk of the Privy Council Michael Wernick and Trudeau’s former principal secretary, Gerald Butts.
That committee also heard from deputy attorney general Nathalie Drouin, but Liberal members, who held the controlling majority of votes, blocked efforts to invite several other individuals who were named by Wilson-Raybould as playing a key role in the affair.
Those included senior advisers from within the Prime Minister’s Office, ministers’ offices and Trudeau’s chief of staff, Katie Telford.
An inquiry led by a judge could draw up a full list of witnesses to speak with and compel their testimony as well as the production of documents in a way the Liberals on the justice committee may not have been willing to do, Spratt added.
But he noted that the big question remains to what extent an inquiry could challenge the claims of cabinet confidentiality.
Trudeau has refused to waive that privilege and allow the individuals referenced in the Globe and Mail report to speak with the RCMP.
Spratt said there’s no clear answer as to whether an inquiry could successfully challenge that privilege but suggested that could be “distinctly possible.”
“This is a very complicated and nuanced area of the law,” he said.
“But this is why we have lawyers and this is why inquiries are set up because arguments can be made, and the best and only way to get that information is through an inquiry led by a judge with powers to make orders and make rulings and compel disclosure.”