A complex dance of History, Values, and Visions of the Future
Jody Wilson-Raybould emerged from her long afternoon of questioning before the House of Commons Justice Committee on February 27, 2019 as the saviour of the rule of law in Canada. Her riveting testimony revealed that she had endured four months of relentless pressure by the Prime Minister, senior aides and government officials to countermand the Director of Public Prosecutions’ decision to pursue criminal changes against SNC-Lavalin. Wilson-Raybould made it clear she felt the pressure was entirely inappropriate and considered it an attack on the independence and integrity of the Attorney-General of Canada and, hence, an attempt to subvert the rule of law.
It’s a fair bet that a majority of Canadians agree with her. For all Prime Minister Justin Trudeau’s virtuous words on any number of subjects, it seems obvious he was determined to shield SNC-Lavalin from prosecution as a crass effort to protect Liberal votes in Quebec. Wilson-Raybould testified that during one of numerous meetings where she was pressured to halt the prosecution, Trudeau himself explicitly cited the upcoming election and reminded her that he is “an MP from Quebec – the member for Papineau.” When it became clear that she wouldn’t budge, Trudeau shuffled her out of the Justice portfolio and replaced her with Montreal MP David Lametti, who promptly told reporters a deal for SNC-Lavalin was still on the table.
Wilson-Raybould’s devastating testimony, which precipitated last week’s resignation of a second senior minister, Jane Philpott, has shattered Trudeau’s credibility and rocked his government to its foundations. If it falls, either through his resignation or electoral defeat, it will be an unprecedented event in Canadian political history – a prime minister and majority government brought down by one of its own ministers. It will make Jody Wilson-Raybould a hero to many Canadians, a pariah to many Liberals, and a serious future contender for political power in Ottawa.
But hang on. Before the coronation, some questions need to be answered. First and foremost, is Wilson-Raybould telling the whole story? Not according to the PM’s former principal secretary, Gerald Butts, in his rebuttal testimony at the Justice Committee last Wednesday. He mainly tried to portray her accusation of “consistent and enduring efforts” to get her to drop the prosecution as a giant misunderstanding on her part. He never quite accused her of lying, but where her evidence was most damning, he reverted to the same explanation his boss used to parry last year’s “Kokanee Grope” controversy: “…two people can experience the same event differently.”
There’s little doubt Wilson-Raybould was pressured. But was she simultaneously pursuing her own political objectives, notably pushing the PM to go further on Indigenous issues than even he – the national champion for “Indigenization” – was willing to go? During her tenure in Justice, she made statements and took actions that furthered Indigenous political and legal goals, even going so far as to tilt the scales of justice in favour of Indigenous litigants. As one Crown lawyer who declines to be identified puts it, “This was clearly Minister Wilson-Raybould’s priority right from the start. She issued directives to all government lawyers involved in Indigenous cases that severely limit the Crown’s ability to provide a full defence. They constrained time limitations, and shifted the onus from the plaintiffs having to prove their claims, to the government lawyers to show why any Indigenous claim should be limited.”
There is also evidence, including in the former minister’s own words, that she was very upset with Trudeau’s decision to shelve a major piece of his government’s “reconciliation” agenda. This decision roughly coincided with the start of her falling out with the government over SNC-Lavalin. No one is suggesting, yet, that she tried to get what she wanted in return for giving Trudeau what he wanted. But if their showdown leads to her rise and his fall, it will obviously advance her cause.
The irony in this turnabout is as rich as it gets. While there’s little doubt Wilson-Raybould is highly intelligent and capable, Trudeau had vaulted her well beyond her qualifications to make her Attorney-General and Minister of Justice. And her record in those roles raises serious doubts about her experience, judgement and, particularly, her professed devotion to protecting the rule of law.
That does not describe Wilson-Raybould. She was called to the British Columbia bar in 2000, then worked as a junior prosecutor until just 2003, when she quit to take a political job with an Indigenous organization. In 2009 she became the B.C. Regional Chief of the Assembly of First Nations (AFN). Until her election to Parliament in 2015, she worked in various capacities in Indigenous politics.
The reason a person with such arguably thin legal credentials was appointed to such an important office is not hard to discern. Justin Trudeau ran on an uber-progressive platform in the 2015 election, promising social justice for all, but especially women and Indigenous Canadians. He delivered with a gender-balanced cabinet (although women made up barely one-quarter of his caucus) that included Canada’s first Justice Minister and A-G of partly Indigenous descent. (Wilson-Raybould’s mother is non-native. According to a 2018 Maclean’s magazine profile, her parents split up when she was a young child and her mother raised her in an aboriginal cultural milieu.) Her advocacy for aboriginal grievances and entitlements echoed Trudeau’s oft-proclaimed commitment to “reconciliation”.
There soon were signs, however, that the first-time MP and rookie Minister of Justice didn’t fully grasp her responsibilities – including the imperative of absolute impartiality. In early 2018, after a jury acquitted Saskatchewan farmer Gerald Stanley of murdering a young Indigenous man named Colten Boushie while defending his property during an attempted robbery, Wilson-Raybould dove into the racially-charged post-verdict controversy by tweeting, “As a country we can and must do better.” Publicly second-guessing the jury was bad enough, but the minister then advanced legislation that eliminated peremptory challenges in jury cases and made other changes to jury selection procedures. It was a transparent exercise in virtue signalling that many criminal lawyers believe will do more harm than good to the goal of fair trials.
Indigenous political objectives were also well-served by her handling of another legal matter that made far less news, but may cost the country billions of dollars. In the Restoule case, Indigenous plaintiffs argued that treaty annuity payments in the Robinson treaties (covering the northern Great Lakes) should be made retroactive for up to 150 years. They won, but only after “Practise Directives” issued by Wilson-Raybould’s office had deliberately weakened the Crown’s defence on numerous vital points, making it virtually inevitable that the judge would find for the plaintiff. In effect, the minister threw the game. Indigenous groups are now lining up to make the same arguments about other treaties. As the anonymous Crown lawyer puts it, “if these Directives aren’t reversed, there will be huge financial consequences for taxpayers. Even if they are repudiated by a future government, the Crown may still be stuck with legal positions taken or defences waived.” No experienced justice minister loyal to Canada would have compromised the country in this way.
Wilson-Raybould’s ministerial record includes other dubious actions and decisions, not necessarily related to racially-tinged files. On her watch the government passed a Criminal Code amendment allowing police officers to stop motorists and demand a breathalyzer without cause. This is a profound break with centuries-old common-law protections of due process, and it is certain to precipitate lengthy and expensive legal challenges. Her legacy of questionable law-making further includes new restrictions on evidence allowed in sexual assault trials, which criminal lawyers see as pandering to the #MeToo movement, again at the expense of due process.
Wilson-Raybould will also be remembered as the Justice Minister who presided over the legalization of cannabis and assisted dying, two of the most radical legal policy changes in Canadian history. Both amount to grand social experiments, the effects of which will not be fully felt for many years. History will judge whether these were prudent, necessary actions undertaken only after sober research and reflection, or reckless and impulsive ones grasped by a naïve minister and government following a trendy progressive ideology.
Still, it is Wilson-Raybould’s partisan Indigenous political agenda that raises the most serious concerns about her fitness for the job of Canada’s top lawmaker, and that should give Canadians pause before they anoint her as the country’s next political messiah. In the period between her short career in law and her entry into federal politics, she was immersed in strategy and advocacy for the relatively new movement to radically reinterpret Canada’s Indian treaties. As a commissioner – including a stint as chief commissioner – during the early 2000s with the B.C. Treaty Commission, she became a major player in the effort to escalate Indigenous claims for land and sovereignty. The original and for many decades unquestioned (on both sides) understanding of Indian treaties in Canada was that they were legal agreements marking the permanent surrender of land and title to the Crown for specific consideration. The new claim is that they surrendered nothing and obligate taxpayers to pay rent to Indigenous groups in perpetuity as well as giving First Nations influence if not veto power over all activities on all lands throughout Canada.
By the time Trudeau recruited her as a symbol of his commitment to identity politics, she was a senior executive with the AFN and presumably aligned with its position that First Nations communities must all be regarded as nations equal in status to Canada, functioning as separate sovereign nations, subject to their own laws and citizenship rules, and “Canadian” only in the sense of being entitled to financial support from the federal government. Their first loyalty would be to their Indigenous racial identity as manifested by their own “nation”.
While serving as the regional chief for the AFN in B.C., Wilson-Raybould and her husband Tim (a non-native raised in England who has made a career as a consultant to Indigenous groups) authored an 800-page manifesto entitled the BCAFN Governance Toolkit: A Guide to Nation Building. “Our people are moving away from being governed over by the federal government under the Indian Act and taking back control of their lives under their own institutions and laws in accordance with evolving Indigenous legal traditions,” Wilson-Raybould wrote in the foreword. The Toolkit, she added, was a roadmap to achieving “governance over lands that have been set aside as existing Indian reserves, treaty settlement lands and Aboriginal title lands, as well as ancestral lands that transcend all other categories of First Nation lands.”
In the 1970s, when then-Prime Minister Pierre Trudeau selected dirigiste Quebecker Marc Lalonde as his Finance Minister, the acid-tongued Conservative MP John Crosbie quipped, “It is like putting Dracula in charge of the Blood Bank”. The same could be said of putting Wilson-Raybould anywhere near power in Ottawa. In the summer of 2017, she announced 10 principles that would guide her government’s “reconciliation agenda.” The very first was that, “All relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.” But if Wilson-Raybould’s first loyalty is to a nation or nations other than Canada, how could she fairly represent Canada in its relations with those nations, whose leaders are openly seeking to implement an independent “nation-to-nation” arrangement with the federal government?
Under the circumstances, perhaps it was inevitable that Wilson-Raybould would find herself at loggerheads with Trudeau, despite his slavish rhetoric about the need for “reconciliation” with Indigenous people, which he described as his government’s top priority. For, when push came to shove between Liberal political objectives in vote-rich Quebec and the Indigenous Justice minister who stood in the way, Trudeau’s true priorities were revealed.
But it may go far deeper than that. According to Michael Wernick, the Clerk of the Privy Council (effectively, Canada’s top-most bureaucrat), during his first appearance at the Justice Committee, the estrangement between Wilson-Raybould and the Trudeau government was triggered months earlier. The cause was Trudeau’s showpiece Indigenous policy initiative, the so-called “rights and recognition framework”, unveiled by the prime minister himself in a speech to Parliament on February 14, 2018.
This was a plan to expand and apply Indigenous rights asserted in Section 35 of the Constitution to all laws and functions of the government. Section 35 was a contentious last-minute addition to the Constitution Act, 1982, specifically limited (mainly at the insistence of then-Alberta Premier Peter Lougheed) to “existing” aboriginal rights. Canada’s courts, and governments, have shown little deference to this caveat ever since, and Indigenous rights have expanded exponentially.
Trudeau’s promised “framework”, unveiled in February 2018, would go much farther still, making all Canadian law compliant with Section 35. This would satisfy a long-standing demand by Indigenous rights activists. It would also ratify the United Nations Declaration on the Rights of Aboriginal Peoples, giving every Canadian First Nation the right to be consulted over any proposed new Canadian legislation. Moreover, if enacted, this law could expand the only recently won aboriginal veto over resource development on or near Indian reserves or claimed “traditional territories”, to virtually any significant development of any kind, anywhere.
This was still not good enough for the AFN and its allies, who were mostly critical of the document. A critique published by Ryerson University’s Yellowhead Institute last June complained that it offered a “narrow model of self-government outside of the Indian Act, premised on devolution of program and service delivery, fiscal mechanisms that do not address land rights but focus on accountability, a piecemeal approach to Aboriginal title, and an ongoing neglect of treaty obligations or expansive First Nation jurisdiction generally.”
Be that as it may, somewhere along the way it seems Trudeau began to get cold feet. He may have been advised how profoundly destabilizing the legislation would be. Economic development and growth would be largely dictated by the country’s 600-odd First Nations. Not all of Trudeau’s cabinet apparently wanted to charge headlong down this road. The dispute took place largely in the confidential settings of cabinet deliberations and senior bureaucratic discussions. But it burst into the open during a speech by Wilson-Raybould at the University of Saskatchewan last September 18. In a thinly veiled attack on a framework discussion paper issued by the office of Indigenous Services Minister Carolyn Bennett, Wilson-Raybould declared that “…words are also easy, cheap…too often we see the tendency – especially in politics – to use important words that have real meaning and importance, carelessly…We see ‘recognition’ applied to words that actually mean ‘denial’. We see ‘self government’ used to apply to ideas or processes that actually maintain control over others.” Wilson-Raybould was effectively channelling complaints levelled by the AFN, some of whose chiefs had publicly demanded that Wilson-Raybould take over the file.
Also at his first Justice Committee appearance, Wernick testified that a meeting between Trudeau and Wilson-Raybould only one day before the University of Saskatchewan speech, which she had claimed was focused on SNC-Lavalin, was, in fact, called mainly to discuss her “very serious policy differences” with Bennett and other ministers over the Section 35 plan. At this meeting, Trudeau announced the bill would have to wait until after the next election. Instead, the federal government would proceed with Indigenous languages legislation.
It would be surprising if Wilson-Raybould did not feel let down or even betrayed. If she capitulated, she risked the ire of the AFN chiefs and other captains of the so-called “Indian Industry,” perhaps including her father, long-time Indigenous political firebrand Bill Wilson. After all, his daughter as a child had been named “Puglaas” – “Born to a Noble People”. Wilson told a CBC interviewer she is “Indigenous royalty,” predestined for political greatness. The Globe and Mail reported last month that Wilson-Raybould even challenged the prime minister’s prerogative to appoint judges. No wonder the first instinct of Liberal spin doctors when Wilson-Raybould went rogue was to launch a whisper campaign about how difficult she was to work with.
The stage was set for a showdown between Wilson-Raybould and a prime minister who perhaps realized – belatedly – that his prized minister’s demands would exact far too high a price on the country. Her insistence on a “nation-to-nation” deal with Ottawa, including imposing obligations to fund 600-plus Indigenous nations in perpetuity and give them de facto command of the country’s economy, became too much even for him.
But Wilson-Raybould didn’t take no for an answer. Her last act as Justice Minister after she was informed of her demotion, as reported in the Ottawa Citizen on March 5, was to affirm her Practise Directives advising all Crown lawyers to cease adversarial arguments in all litigation involving Indigenous claims. At the end of his opening statement in his rocky second appearance before the Justice Committee last Wednesday, Wernick warned of this act’s dire consequences: “Finally, the Committee may wish to hold hearings on the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples, issued by the former Attorney General on January 11, 2019. The Directive to all Government of Canada litigators could mark a profound change in Canada’s legal landscape. However, it could be repealed or gutted at the stroke of a pen and turn to ashes. All political parties now need to be clear with Canadians on the future of this Directive.”
It’s hard not to see Wilson-Raybould’s actions as an attempt to advance the Indigenous rights framework by other means. It also looks an awful lot like an attempted weakening of the rule of law as it applies to Indigenous litigation – precisely what the government allegedly tried to do for SNC-Lavalin.
Viewed in this light, the extraordinary events of the last few weeks appear to have as much or more to do with Wilson-Raybould pressuring Trudeau’s office as with his office pressuring her. Far from being the heroic defender of the rule of law in the SNC-Lavalin prosecution, she took steps to weaken the Crown’s ability to defend Canada’s interests in Indigenous rights cases and fought for implementation of the AFN’s “nation-to-nation” plan. Her evident determination to put the AFN’s agenda ahead of the government’s would certainly explain why Trudeau, senior bureaucrats and a good part of the Cabinet were so upset with her.
The Wilson-Raybould saga is far from over, much is still to be learned, the Liberal government’s fate hangs in the balance, and its battleplan to survive the onslaught – if it has one – is unclear. Whatever the true political calculus of the PMO, Trudeau cabinet and senior bureaucrats may have been, Prime Minister Trudeau and all who still support him must rue the day he invited Jody Wilson-Raybould to join his team.
Brian Giesbrecht is a retired Manitoba provincial court judge (appointed in 1976, Associate Chief Judge from 1991 and Acting Chief Judge in 1993), a Senior Fellow with the Frontier Center for Public Policy and a freelance writer contributing to various newspapers and other publications.