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What is the Shawcross Principle, the judicial doctrine that the ethics commissioner said Trudeau breached?

P.M. Justin Trudeau - Reuters

The principle states that while the Attorney General can consult with other colleagues in the government on decisions directly related to their post, it is solely up to them to make that decision

Ethics Commissioner Mario Dion concluded today that Prime Minister Justin Trudeau violated Canada’s conflict of interest law by improperly seeking to influence a criminal prosecution in the SNC-Lavalin case.

By putting pressure on then-Attorney-General Jody Wilson-Raybould to defer the prosecution of construction firm SNC-Lavalin on bribery and fraud charges, Dion states, Trudeau “acted contrary to the Shawcross doctrine and the principle of prosecutorial independence when he and senior officials under his direction put forward partisan political considerations to the Attorney General in relation to a criminal prosecution.”

The Shawcross principle defines some of the core tenets of the Attorney General’s role, especially in relation to their responsibilities and independence, and states that while the AG can consult with other colleagues in the government on decisions directly related to their post, it is solely up to them to make that decision.

The principle is credited to Sir Hartley Shawcross, then the Attorney General of England, who went on to become the lead British prosecutor in the Nuremburg Trials. He described in the British House of Commons  in 1951 what he believed to be the proper relationship between Attorney Generals and the rest of the cabinet.

“In order so to inform himself, (the Attorney General) may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not.

On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.”

Shawcross went on to say that the AG should remain the sole judge for their decisions, especially if “political considerations” might affect those in government, and is responsible for the outcome of those decisions.

According to official documents, Attorney Generals both federally and provincially have chosen to adopt the Shawcross Principle, with the first documented use in 1978 concerning the Official Secrets Act. It has been cited in Canadian governmental rulings and debates in times where the independence of the attorney general was being challenged.

Throughout the SNC-Lavalin affair, the Shawcross Principle has been brought up as a point of discussion. While the principle states that the AG can consult with other members of government on policies and decisions, Trudeau and his cabinet members repeatedly meeting and putting pressure on Wilson-Raybould for a decision would indicate a step over that line.

“It is well established that the attorney general exercises prosecutorial discretion. She or he does so individually and independently,” Wilson-Raybould said in her opening remarks to the House of Commons justice committee. “These are not cabinet decisions.”

Copyright Postmedia Network Inc., 2019


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