Canada: Star Chamber v. Equity: Politicians Beware

Last Updated: August 27 2019
Article by Gavin Tighe and Stephen Thiele

As Canadians head to the election polls in October to cast ballots in the federal election, one of the issues that will likely be on their minds is the recent finding of the Integrity Commissioner that Prime Minister Justin Trudeau improperly sought to influence the decision of his former Attorney General, Ms. Jody Wilson-Raybould, in connection with the current criminal proceedings against SNC-Lavalin. In his decision, the Integrity Commissioner found that Prime Minister Trudeau had violated section 9 of the federal Conflict of Interest Act, which prohibits a public office holder from using their position to seek to influence a decision of another person so as to further their own private interests or those of a relative or friend, or, as applied to SNC-Lavalin, to improperly further another person's private interest.

While the decision of the Integrity Commissioner carries no penalty or sanction, it will no doubt have a political impact on the Prime Minister and his party as opposition parties call for either a police investigation into the affair, ask for additional public hearings, or, at the very least, demand that the Prime Minister actually apologize for his conduct. Meanwhile the Prime Minister will continue to counter-punch with a message that throughout the discussions involving the prosecution of the Quebec-based construction giant he was only trying to protect Canada's economic interests and the jobs of innocent employees and pensioners.

This debate will rage on beyond the election and will likely be the topic of heated discussions in political science and law school classrooms for years to come as every passage of the Integrity Commissioner's report is analyzed and dissected. Scholars will carefully and comprehensively examine the Criminal Code provisions which permit prosecutors to enter into remediation or deferred prosecution agreements and the legal doctrine (the Shawcross doctrine) that Integrity Commissioner Dion found the Prime Minister to have breached.

However, there is another interesting procedural aspect of the Integrity Commissioner's decision which should not be overlooked. This aspect involves the process used by Integrity Commissioner Dion which essentially disclosed to Prime Minister Trudeau the case he had to meet during the investigation.

We have represented politicians in integrity commissioner investigations conducted by both the City of Toronto integrity commissioner and the Ontario integrity commissioner. During those investigations, unlike the process adopted by Integrity Commissioner Dion, the politicians who were the object of those inquiries and subject to potential sanction were not provided with either documentary disclosure or the transcripts of witness testimony.

In our view, it is remarkable that in this modern era the processes used by the various integrity commissioners to investigate complaints are not uniform and that where no disclosure is made they can sometimes resemble a 'Star Chamber' with the accused politician receiving very little information about the case he or she needs to meet and walking virtually blind into compelled interrogations about their alleged wrongdoing.

In a country where a person under criminal investigation is entitled to full disclosure of all relevant information in the possession or control of the Crown, it is surprising that integrity commissioners are entitled to withhold relevant evidence from a politician who is under investigation and whose political career and reputation can be at risk from a negative ruling. Indeed, even civil procedure entails extensive pre-trial disclosure in the form of documentary and oral discovery to ensure fairness.

In our view, principles of equity, fairness and fundamental justice are of particular significance and ought to prevail in the highly-charged atmosphere of political ethics investigations. To withhold relevant evidence from a person under investigation is contrary to administrative law and contrary to the legal and equitable principles such as, for example, those enshrined in the seminal case of Browne v. Dunn.

The Rule in Browne v. Dunn

The rule in Browne v. Dunn provides that where a party intends to impeach the credibility of a witness through the calling of independent evidence, that party must confront the witness with such evidence first so that the witness has the opportunity to respond. In other words, the rule prevents a witness from being "ambushed".

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