SNC-Lavalin Controversy and the Rule of Law

February 13, 2019 Updated: February 14, 2019

Commentary

The arrest of Huawei’s Meng Wanzhou in Vancouver under Canada’s extradition treaty with the United States has unleashed much discussion about the nature and scope of the rule of law in Canada and its complete absence in China.

Overwhelmingly, responsible Canadians have indicated that our federal justice department had, when requested, no choice under the treaty but to arrest Meng.

Commentary on the plight of the two Canadians, former diplomat Michael Kovrig and businessman Michael Spavor, imprisoned in China in direct response to Meng’s arrest and release on bail, has properly focused on the unjust nature of their incarceration.

As in other totalitarian regimes, there is no rule of law in China because under China’s constitution, the Communist Party is above the law and does what its bosses and president-for-life Xi Jinping judge will best keep the regime in power.

Canadian lawyer and sinologist Clive Ansley practised law in Shanghai for 14 years until 2003 before leaving because he could no longer bear its legal system. He points out, for example, that nothing witnesses or lawyers say in “courts” has any impact on the outcome. “Those who hear the case do not make the judgement; those who make the judgement have not heard the case,” he said.  The presiding “judge” simply reads decisions and penalties predetermined by senior party-state judges.

In China, moreover, a police signature alone is enough to incarcerate anyone for up to three years with no hearing or appeal under practices developed by Joseph Stalin and Adolf Hitler. Tens of thousands of Falun Dafa practitioners, Tibetans, Christians, and other prisoners of conscience have been jailed. We now know that more than a million Uyghurs are incarcerated in camps in Xinjiang in western China.

In the case of Falun Dafa at least, Winnipeg-based international human rights lawyer David Matas and I have spoken to a number of detainees who managed to get out of the camps and China itself. They described making a range of consumer products for markets in the West and being examined every three months by doctors in the camps, little suspecting that thousands of them would later become involuntary organ “donors” for Chinese or foreign buyers. Matas and I, along with U.S. author and researcher Ethan Gutmann, released an updated report on the barbaric practice of forced organ harvesting in China in 2016.

This leads to the SNC-Lavalin matter and our much-respected former justice minister Jody Wilson-Raybould. Many Canadians strongly suspect that she was removed from her key position partly because of her careful statement, on accepting a demotion to Veterans’ Affairs minister, about the duty of a justice minister to be independent of political pressure from any source, including a prime minister.

In context, her words imply that that she was ousted because she refused to knuckle under to pressure from Prime Minister Justin Trudeau or his staff to drop serious criminal charges against SNC-Lavalin and go the route of a fine without a criminal record.

The matter thus appears to boil down to whether a prime minister can oblige a justice minister to withdraw a serious criminal code charge against a large company when Canadian jobs could hang in the balance.

The rule of thumb for prosecutors in my day—which presumably still applies—was that before laying a criminal code charge we must be convinced by police reports that the code has been violated and that there is enough evidence available that, if admitted at trial, a jury properly charged would probably convict.

Political or economic convenience for anyone, including a prime minister or political party, is never a factor in deciding to prosecute in a rule-of-law democracy like Canada. The removal of a justice minister because she allegedly refused to violate this well-established principle is outrageous, especially when rule of law principles are under assault in so many capitals around the world.

The ethics commissioner is launching an investigation into allegations of influence by the Prime Minister’s Office, and Liberal members of the Commons justice committee have also agreed to look into the allegations.

Under the circumstances, however, a public inquiry by a respected jurist, such as former governor general David Johnston, with a very short time limit of, say, 30 days, is probably the best way to deal with the affair since only a small number of witnesses need be consulted.

The prime minister should also waive the solicitor-client privilege and allow Wilson-Raybould to speak freely and truthfully on the matter. To quote Canadian journalist Andrew Coyne, “[The allegation] has still not been properly denied. It would seem worth investigating why.”

If the Trudeau government continues to block an inquiry, Canadians will presumably have their remedy on Oct. 19.

David Kilgour, a lawyer by profession, served in the House of Commons for almost 27 years. He is the author of several books and co-author with David Matas of “Bloody Harvest: The Killing of Falun Gong for Their Organs.” Kilgour’s experience as Crown counsel before going to Parliament was with the City of Vancouver (1967-1968); Dept. of Justice, Ottawa (1968-1969); Government of Manitoba (1971-1972); Government of Alberta (1972-1979).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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