The Difference between Scandal and Democratic Backsliding. Trudeau’s SNC-Lavalin scandal while undermining the rule of the law is not sufficient to claim that Canada is experiencing Democratic Backsliding.
In his introduction to “Stealth Authoritarianism,” Ozan O. Varolnotes that the differences between “Rule by Law” and “Rule of law” have been one of the classical criteria used to differentiate between authoritarian regimes and liberal democracies. Regimes governed by “Rule by Law” practice a form of legalism where the law is used by authoritarians to reinforce their hold on power. Meanwhile, in liberal democracies with robust notions of the “rule of law,” the rule of law is used as a mechanism to hold members of society accountable and limit the arbitrary usage and potential abuse of power by the government through a series of written and established rules. In countries practicing a form of “stealth authoritarianism,” backsliders attempt to cloak behaviors that undermine the “rule of law” commonly things associated with “rule by law” under the pretenses of preserving the “rule of law” through tinkering with judicial autonomy.
Canada, with its 2019 Freedom House Scoreof 99 out of 100, is considered to be a consolidated liberal democracy. However, Canadian Prime Minister Justin Trudeau’s interfered with now-former Attorney General of Canada Jody Wilson-Raybould’s bribery investigation into SNC-Lavalin, allegedly, because it would cost the economy many jobs in Trudeau’s Montreal constituency and SNC-Lavalin donated significant dollars to his campaign. Wilson-Raybould, consequently, was removed from her position as Attorney General because she refused to offer SNC-Lavalin a deferred prosecution agreement which would have preserved the Canadian jobs and allowed them to escape criminal culpability. Interference and political retribution are by definition contrary to the very notion of the rule of law, and scandalous. However, it is not sufficient to claim that Canada is undergoing democratic backsliding because the underlying norms are still intact. Furthermore, the very notion of the rule of law test is flawed because judicial systems are almost always political and subject to political concerns, which makes them a poor initial gauge of democratic backsliding even if they are correlated with it.
Trudeau’s actions regarding SNC-Lavalin and interference on their behalf culminating in his removal of the Attorney General mirrors key elements of stealth authoritarian behavior. Varol opens hisintroduction and discussion of the rule of law by quoting Peruvian, autocrat and former-president, Óscar Benavides as saying “For my friends, everything. For my enemies the law.” In autocracies such as Benavides’ Peru, friends of the political elite would be expected to avoid prosecution for their corruption. Similarly, in Canada, Trudeau attempted to help SNC-Lavalin avoid criminal consequences because they were “his friends,” so to speak.
Moreover, stealth authoritarians, according to Varol, seek to utilize techniques justifiable in “rule of law” systems as well within international norms to achieve their “rule by law behavior.” Likewise, Trudeau attempted to help SNC-Lavalin by prompting the Attorney General to use a deferred prosecution agreement to ensure that SNC-Lavalin avoided serious criminal liability. Using deferred prosecution agreements to settle complicated litigation, especially against corporations, is a commonly utilized legal mechanism in liberal democracies with healthy, independent legal institutions. However, the then-Attorney General had determinedthat SNC-Lavalin did not satisfy Canada’s common law standard for a differed prosecution agreement and refused to comply. Trudeau, after lobbying her and trying to get SNC-Lavalin a deferred prosecution agreement for political reasons, removed her from her position in order to help SNC-Lavalin in a way that is inconsistent with the behavior of healthy liberal democracies with Freedom House scores of 99.
Although the allegations that Trudeau’s interference into the investigation into SNC-Lavalin was politically motivated and caused him to remove the Attorney General do not bode well for the rule of law in Canada, they are not sufficient to claim that Trudeau is a democratic backslider. Nancy Bermeo arguesin “On Backsliding” that executives attempting to engage in democratic backsliding do it through attacking the free press, undercutting the independence of the judiciary and the Rule of Law, trampling over establish democratic norms, and manipulating voters strategically. While Trudeau’s actions definitely undercut Canada’s judicial autonomy, claiming that the system was ever divorced from politics and free from political interference is a tough argument to justify at best and likely false. According to Tom Ginsburg and Aziz Huq in How to Save a Constitutional Democracy, the judiciary, especially in countries under a common law system such as Canada and the United States, is an inherently conservative institution that tends to be political by nature.[i] Therefore, the Rule of Law is a poor determinant of democratic backsliding even if it is highly correlated with democratic backsliding because allegations of partisan applications of law exist in almost all liberal constitutional democracies.
Trudeau has not attempted to erode democracy across the other areas mentioned by Bermeo. Canada’s press is still free and has had no problem publishing articles that are critical of Trudeau and of his government including devoting substantial coverage to his treatment of the SNC-Lavalin matter. Trudeau thus far has also refrained attacking its legitimacy, even if he has denied wrongdoing. Elections in Canada were Free and Fair, as evidenced by their 99 out 100 Freedom House score. The amount of criticism directed toward the Prime Minister and his handling of the SNC-Lavalin matter by senior members of his own party including then-cabinet ministerand Trudeau ally, Jane Philpott, reflects that democratic norms and culture of governmental accountability have not been eroded. Therefore, although scandalous and bad for democracy, Trudeau’s actions do not satisfy enough of the necessary conditions for him to be characterized as a democratic backslider.
[i]Ginsburg, T. and Huq, A.Z., 2018. How to Save a Constitutional Democracy. University of Chicago Press. Chapter 5
Image: Photo by Sean Kilpatrick, “Prime Minister Justin Trudeau and Veterans Affairs Minister Jodie Wilson-Raybould attend a swearing in ceremony at Rideau Hall in Ottawa on Monday” (The Canadian Press), Vancouver Sun.”
Hello Warren.
Thank you for your clear coverage of the matter. It was really helpful. I have a differing opinion from yours on the conclusion, however. You concluded, although Trudeau has engaged in all of these actions, he is not a democratic backslider.
Your reasoning was that “the Rule of Law is a poor determinant of democratic backsliding even if it is highly correlated with democratic backsliding because allegations of partisan applications of law exist in almost all liberal constitutional democracies.”
But there is probably a reason why there is a high correlation– because although nothing escapes politics, the Rule of Law enables political opponents to call out verdicts that are over the line and hold them responsible.
The fact that he has tried to influence the judiciary was noticed by this very Law. The fact that he fired those that opposed (demoted, but de facto fired) to his actions really adds weight to the idea that he indeed has corrupted the integrity of the judiciary and plans to continue by leaving only the loyalists in his office.