It may just be the brouhaha over Andrew Scheer’s dual citizenship that made me link Donald Trump’s vow to “jail Hillary” and “lock her up” with the Conservative leader’s pledge — in the middle of an election campaign, no less — to launch a judicial inquiry into Justin Trudeau’s conduct in the SNC Lavalin scandal.
Quite apart from the fact that politicizing judicial inquiries in the midst of an election campaign is “very very dangerous,” as lawyer Paul Cavalluzzo told the Toronto Star — and particularly ironic given Scheer’s tendency to harp on the fact that the Prime Minister’s SNC involvement “hindered the independence of our legal system” — what’s most troubling is that the Conservatives’ announcement of their intentions brings us every closer to the American tendency to criminalize political failings.
It’s a tendency that goes back to John Adams, who used the Alien and Sedition Acts to imprison political opponents, and Thomas Jefferson, who went so far as to personally direct the unsuccessful prosecution of Aaron Burr for treason. Even Bernie Sanders’ wife, Jane, was criminally investigated for over a year at the urging of a Vermont Republican Party official before federal prosecutors declined to charge her.
Indeed, the Conservatives’ simultaneous announcement of their intention to pass a “No-More Coverups Act to prevent corrupt politicians … from hiding behind cabinet confidentiality to escape police investigation” is nothing less that a clarion call for prosecuting the prime minister. After all, Scheer’s proposed legislation would allow the RCMP to challenge cabinet confidentiality “during criminal investigations.”
The zeal and haste with which the Conservatives seized on invoking the criminal process rather than considering what overcriminalization could do this country, as it has to the United States, is evident from the ill-considered tweet they posted declaring that the RCMP had confirmed that Trudeau was under investigation. In fact, the RCMP said no such thing and the Conservatives deleted the tweet the very same day.
In an opinion piece in the New York Times in 2017, Harvard law professor Alan Dershowitz complained that the “current frenzy of criminal investigations” of politicians point to a “frightening trend” towards criminalizing political differences. As he points out, the “country’s judicial standards and rigorous protections for the accused” made jailing political enemies difficult in the past.
“But that bulwark has eroded, largely because of a new approach: the use of politically neutral but overly malleable laws on obstruction of justice, corruption and conspiracy that can be used to prosecute the ethically questionable, but not necessarily criminal, activities of political rivals,” Dershowitz wrote.
When it comes to SNC, Trudeau made a terrible error of judgment, one for which voters may decide to punish him. But does it rise to the level of criminality? I think not, especially when one considers that constitutional doctrine on the issues involved in SNC could well be regarded as “malleable.”
Scheer, it seems, is not content to let our criminal justice system takes its course — mostly because it isn’t taking the course he wants it to follow. Rather, he proposes circumventing the system by holding a public inquiry and passing legislation that would make the RCMP the effective arbiters of cabinet privilege by allowing the police to seek disclosure of cabinet secrets at the Supreme Court of Canada.
As Cavalluzzo, who has been counsel in two public inquiries, suggested, the right way to do a criminal investigation is “follow the normal criminal process where the police have certain powers and the certain powers are restrained by the Charter.”
Expanding the criminal law to suit the political agenda of the moment, on the other hand, hardly ranks with undoing the evils criminal law seeks to uproot and punish.