Being Fair


 The current flurry of sensational news about the “scandal” in the Canadian government is unwarranted, it seems to me. Many of us want to be armchair politicians, armchair lawyers and armchair policy analysts  — too much time is being spent in armchairs! And from that vantage, government activities are being viewed as reality TV or soap opera.

Like most of the people talking about the SNC-Lavalin issue, I am not a lawyer, nor do I know much about public policy, but what I’ve read about Deferred Prosecution Agreements leads me to believe that it’s something that could be worth trying. It has produced good results in other countries, apparently, as a tool that can impose reforms, rehabilitate, receive financial restitution and monitor compliance.  Surely this new legislation should be tested or at least explored with some discussion and consultation.

My brother, who has a long and distinguished history in public policy analysis, made these comments, in the context of a much longer discussion of the issue.

Given this new legal machinery, opening up new law in an arena of deep ambiguity and complex tradition, with vast scope for interpretation and discretion, extensive external advice on possible application to this first case would seem essential.  A more aggressive option would be consciously to try out the untested new mechanism, to see whether in this test case an appropriate DPA might be negotiated that the AG and a judge could approve, as is required before it could be recognized. 

Is this case not precisely the sort that lends itself to a negotiated fine with a remediation approach and ongoing incentive to improved conduct rather than an imposed fine with a punitive sentence?  Should this not be a case for deference to a Prime Minister with a majority mandate when it comes to interpreting what constitutes the public interest? 

It seems to me that the remediation could be seen as a settler’s version of restorative justice and a better prospect than settling immediately for the punitive court system. At least it deserves to be explored and tested.

It disturbs me that all the media reports focus on casting people in roles as heroes or villains, rather than people doing their jobs, sometimes achieving good results and sometimes mishandling things. Who is telling the truth, people ask: is it “my truth” or “the truth” or something else?

I find myself thinking about one of our early and great Canadian novelists, Ethel Wilson, writing – twice – in her wonderful novel, Swamp Angel, “It takes God himself to be fair to two people at the same time.” (Wilson wasn’t given to repeating herself, so I think she really wanted the point to get across.)

It’s not easy to be fair if we just cast people as right or wrong, honest or lying, heroes or villains. It’s much more helpful to focus on the actual decisions and actions, and they seem to merit some scrutiny. Can the DPA be a useful tool? Is this a case which lends itself to this approach?

And perhaps we should do that within the context of the overall achievements and conduct of our current government. There may be instances of mishandling, poor judgment, bungling, etc. but these are not scandals and they are not criminal.

And so much good has been achieved.


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