Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | APRIL 1, 2019 www.lawtimesnews.com COMMENT I think a legal topic has hit peak coverage when you find people who aren't lawyers who have suddenly become keenly interested in it. (Four months ago, who would have expected a deferred prosecution agreement would become a household phrase across Canada?) When you've been immersed in all things bencher election re- lated, words and concepts that might seem unusual to others become downright normal. The amount of discourse generated over the coming bencher election has been vo- ciferous, active and, dare I say it, downright exciting, when it comes to discussing the future of the profession. But at the risk of being a wet blanket — will it ac- tually translate into more votes and improving a dismal 33.84% turnout for voters? Some figures suggest that incumbents have a powerful advantage going into the elec- tion, such as the fact that all 22 incumbent lawyer benchers that ran for re-election in 2015 kept their seats in Convocation. (And, given the experience and diversity of opinion shown by incumbents, that could be a good thing.) There has been a concerted effort throughout the campaign by non-incumbents to highlight a plethora of problems facing the profession. And others say there's no such thing as a sure bet. "I don't know of a single in- cumbent who is resting on their incumbency to get re-elected," says Sid Troister, a real estate partner at Torkin Manes LLP in Toronto. However you plan to cast your vote, I encourage you to check out our dedicated bencherelection.ca site, which now has more than 100 candi- date profiles. Voting starts soon and in- structions on how to do so are spelled out, so there is no excuse for not taking part. LT BY K ADY O'MALLEY I f there's one thing that has become crys- tal clear in the weeks since the Globe and Mail first broke the story of an al- leged attempt to pressure Canada's then- top law officer into interfering in a land- mark criminal prosecution, it's that we're never going to get a categorical, definitive answer to the question at the centre of the scandal: What actually happened here? As far as the basic facts of the case — namely, that there were indeed closed- door conversations on the SNC-Lavalin case between former justice minister Jody Wilson-Raybould and the prime minis- ter, as well as Privy Council Clerk Michael Wernick and the prime minister's then- principal secretary Gerald Butts — there's little disagreement. The question has always been wheth- er those conversations crossed the line between allowable discussions between cabinet colleagues (and their staffer sur- rogates) and what Wilson-Raybould de- scribed as "a consistent and sustained effort by many people within the govern- ment to seek to politically interfere in the exercise of prosecutorial discretion." And after six straight weeks of round- the-clock news coverage, 10 hours of committee hearings, a 31-hour procedur- al protest standoff in the House of Com- mons and more than enough op-eds, editorials and col- umns to wallpaper a Toronto- sized city block, we still don't have an answer. In fact, finding one doesn't even seem to be the priority now. The discussion has mush- roomed to include every- thing from the state of our anti-corruption laws to the centralization of power in the PMO to the dynamics of gender parity politics at the cabinet table — all of which, it should be noted, are fully worthy of thoughtful dia- logue and lively debate. It's just that when it all ends up go- ing through the same one-button scan- dal-o-matic sound mixer, the result is pure, incoherent cacophony against a backbeat of pre-election partisan messag- ing. Even more frustrating, from a journal- istic perspective, is how easily a demon- strably false claim can become part and parcel of the official narrative. There's a growing number of corporate counsel and legal experts out there who are developing ref lexive tics every time a politician or pundit depicts a remediation agreement as a "secret deal" to "let SNC-Lavalin off the hook." Although there are un- doubtedly a fair number of founded criticisms to be made of the new regime, it does in- clude "mandatory contents" for any negotiated deal, including an admission of responsibility, a pledge to co-operate in related investigations, handing over any ill-gotten gains to the gov- ernment or otherwise dispos- ing of it as directed by the pros- ecution, as well as provisions for restitution and reparations. It also has to be approved by a judge and must be published in the Canada Gazette, although that can be delayed until after it is finalized. This, when you consider that corpora- tions can't actually be sent to jail, period, is pretty far from a "get-out-of-jail free" pass. As MPs, both women have the absolute right — and, arguably, depending on what they have to say, quite possibly the moral responsibility — to rise in the chamber and say whatever they think needs to be put on the record, with no fear of any legal sanction or repercussions, as parliamen- tary privilege is absolute. That doesn't necessarily mean that there wouldn't be consequences for avail- ing themselves of that option: They could be ejected from caucus or even expelled from the party itself. To risk such an out- come may be a difficult choice to make, particularly given both former ministers' insistence that they still believe in and support the Liberal vision, if not neces- sarily the current leader. It is, however, still a choice that can be made freely, although not necessarily without regrets, and to suggest that either woman is "gagged" with no explanatory context is simply inaccurate. These may seem like minor quibbles — and maybe they are. But when an entire political saga is based so heavily on speculation, with no practical way to confirm or corroborate the central claims, any misinformation — even if small and meant only to simplify the storyline — can only serve to further perplex both the front-row spectators and the Canadian public, who, after all, we're all ultimately supposed to be here to serve. LT Kady O'Malley is a member of the parliamen- tary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. Speculation rife in political scandal Some things change Editorial Obiter Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com ©2019 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 | ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $205.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circu- lation inquiries, postal returns and address chang- es should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact: Keith Fulford - (416) 649-9585 | Fax: (416) 649-7870 keith.fulford@thomsonreuters.com SALES AND BUSINESS DEVELOPMENT Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Sales Manager: Paul Burton - (416) 649-9928 paul.burton@tr.com Consultant, Strategy and Business Development: Ivan Ivanovitch - (416) 887-4300 ivan.ivanovitch@tr.com Business Development Consultant: Kimberlee Pascoe - (416) 996-1739 kimberlee.pascoe@tr.com Account Executive: Steffanie Munroe - (416) 315-5879 steffanie.munroe@tr.com Law Times Director/Group Publisher . . . . . . . . . . . . . Karen Lorimer Editor-in-chief . . . . . . . . . . . . . . . . . . . . . . . . . Tim Wilbur tim.wilbur@thomsonreuters.com Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . .Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com Staff Writer . . . . . . . . . . . . . . . . . . . . . Anita Balakrishnan Anita.Balakrishnan@thomsonreuters.com Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . . . . Laura Crawford Art Director . . . . . . . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . . Jacqueline D'Souza Electronic Production Specialist . . . . . . . Derek Welford Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON M1T 3V4 | Tel: 416- 298-5141 | Fax: 416-649-7870 | lawtimesnews.com LT.editor@thomsonreuters.com | @lawtimes The Hill Kady O'Malley

• Cover