Attorney General Independence: The Forgotten Basford Standard and its National Security Nexus

1 May 2019

By Craig Forcese

In February, the political class in Canada was preoccupied by “L’Affaire SNC-Lavalin” – the controversy over whether a prominent Québec company should be prosecuted for alleged overseas bribery, or instead dealt with under a Criminal Code remediation agreement. Part of that controversy turned on whether officials in the Prime Ministers’ Office acted properly in advancing arguments on this issue before the Attorney General of Canada. This debate then focused on the “constitutional convention” of Attorney General independence in criminal prosecutions and where and how it is to be exercised. Here, much discussion focused on the “Shawcross” principles and whether people around the Prime Minister had “pressured” then-Attorney General Jody Wilson-Raybould in violation of these standards. The “Shawcross” principles were principles on Attorney General independence announced by the then Attorney General of England and Wales in a 1951 statement in the UK House of Commons. (I have described some of these issues on my personal law blog.)

Ron Basford, Attorney General of Canada

But during L’Affaire SNC-Lavalin, no discussion focused on a variation of the Shawcross principles, announced by Attorney General Ron Basford in 1978. The Basford standards proposed rules for the federal Attorney General’s exercise of discretion in prosecutions. Notably, while Attorney General Basford urged he simply followed established federal practice, his standards bucked a trend of more politicized Attorney General decision-making, done even decades after the Shawcross principles were articulated in the United Kingdom.[1]

Of relevance to readers of this blog site: These Basford standards arose in a national security case, one that culminated in the most important court decision under the Official Secrets Act (now the Security of Information Act).

This blog post examines this forgotten, 1978-1979 national security matter.

1.     The Prosecution

In 1978, the Crown prosecuted the Toronto Sun, its publisher and editor for violating the Official Secrets Act. The newspaper had published, on 7 March 1978, RCMP “Top Secret”, “For Canadian Eyes Only” information on suspected Soviet intelligence officers secreted among the Soviet diplomats in Canada. This publication allegedly violated section 4 of the Act, soon to be called amongst the worst drafted provisions in the Canadian statute book by the Law Reform Commission of Canada (p.30), having already been labeled part of an “unwieldy” statute by the Mackenzie Royal Commission on Security (para. 204). The gravamen of the offence was simple: the Toronto Sun had in its possession secret information obtained in contravention of the Act and it communicated this information to persons other than those authorized to have it.

The case collapsed when the provincial court in Ontario concluded the information was no longer, if ever, secret, and that there was no evidence it was obtained in violation of the Act. Indeed, the court pointed to statements made in the House of Commons prior to the newspaper’s articles containing much of the “secret” information.

Mr Tom Cossitt, MP, had made two of these statements, on February 16 and February 23 1978.  Mr Cossett’s statements – technically protected by parliamentary privilege – sparked controversy, and the prospect of prosecution.

2.     Events Prior to the Prosecution

The then-Attorney General of Canada, Ron Basford, was the one who had decided to prosecute the Toronto Sun and its editor and publisher. He also decided not to prosecute Tom Cossitt. Prosecutions under the Official Secrets Act (as under the current Security of Information Act) could only be undertaken with the consent of the Attorney General.

In a lengthy (and unusual) speech delivered in the Commons on 17 March 1978, Attorney General Basford explained the principles upon which he would exercise his consent powers:

In arriving at these [decisions] I have been guided by recognized authorities such as Lord Shawcross, Edwards, Erskine, May and Bourinot [experts in, among other things, parliamentary procedure], and more recently and very helpfully, my valuable discussions with Commonwealth attorneys general in Winnipeg last summer on the office of the attorney general [as well as UK equivalents]. …

The first principle, in my view, is that there must be excluded any consideration based upon narrow, partisan views, or based upon the political consequences to me or to others.

In arriving at a decision on such sensitive issue as this, the Attorney General is entitled to seek information and advice from others but in no way is he directed by his colleagues in the government or by parliament itself. This is not to say that the Attorney General is not accountable to parliament for his decisions, which he obviously is.

Clearly, I am entitled to seek and obtain information for others, including my colleague, the Solicitor General (Mr Blais), and the Commissioner of the Royal Canadian Mounted Police on the security implications of recent disclosures. This I have done. …

Attorney General Basford then urged that no person could be above the law, and preservation of a democratic way of life required a strong and vigorous security service, whose work was compromised by operational disclosures.

Finally, the Attorney General was obliged to weigh the public interests of Canada – including such issues as the privileges required for the proper functioning of Parliament.

The Attorney General condemned Mr Cossitt’s comments, but concluded no prosecution could be mounted since the statements were made in Commons debates, and thus clothed in parliamentary privilege – they could not be used as the basis for a prosecution. Given this substantial doubt about the viability of a prosecution, Attorney General Basford would not consent to it.

The Toronto Sun was not, however, protected by the same privilege. And while the Attorney General noted the importance of a free press, he concluded members of the media were not above the law, and their culpability should be decided in court.

3.     Back to the Future

Attorney General Basford’s statement probably constituted the most detailed parliamentary explanation of the Attorney General’s independence in the federal context, up until the recent Affaire SNC-Lavalin. Notably, his approach differed in subtle ways from that suggested by Hartley Shawcross. Note Basford’s reference to “direct”: in no way is the Attorney General to be directed by colleagues. No mention is made of lesser forms of “pressure”, despite Lord Shawcross’s view: “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.”

Given these discrepancies in statements that reflect conventions and not black-letter law, one wonders what legal advice a lawyer might have given on the proper standard applicable in Canada? Did fine distinctions between “direct” and “pressure” lie, in part, at the heart of L’Affaire SNC-Lavalin? An obvious teachable moment from this year’s controversy is the need for clarity on this important principle of Attorney General independence.

Meanwhile, the Official Secrets Act is gone. But the exact same provision at issue in the Toronto Sun case – section 4 – remains on the books, in the renamed Security of Information Act. Soon after the rebranding of this law, section 4 would implicate another journalist – Juliet O’Neill – in the wake of the Maher Arar matter in the early 2000s. A police search warrant executed against Ms O’Neill based on section 4 was challenged by the Ottawa Citizen. And the Ontario Superior Court concluded in 2006 section 4 was unconstitutional, not least because of its infamous overbreadth and ambiguity.

The Crown chose not to appeal. That left the lower court holding intact. But a lower court constitutional holding is binding on no other court. And section 4 itself remains unamended, making it a zombie provision that might someday be used again. No government and no Parliament has since expressed any interest in modernizing this patently inadequate provision.

Perhaps someone in the federal government is keeping a list of the many “things that still need clean up in Canadian national security law”.

[1]           On this point, see John Edwards, The Attorney General , Politics and the Public Interest (London: Sweet & Maxwell, 1984) at 360 et seq.