Montesquieu on the SNC-Lavalin controversy

Below is the first full articulation of the idea of separation of powers as expressed in Montesquieu’s aptly-titled The Spirit of the Laws (1748).  Very much an Enlightenment concept, yet also inspired by Augustine and belief in the the Trinity – in this case, the legislative, the executive, and the judiciary– the idea made its way into the American Constitution.  As Montesquieu explains, it is at the basis of constitutional notions of political liberty.

With respect to the raging SNC-Lavalin controversy, however, Montesquieu’s thinking does not quite explain why the Director of Public Prosecution (DPP) does not take up the Deferred Prosecution Agreement (DPA) with SNC-Lavalin.  Is it precisely because the Liberal government under Justin Trudeau created the DPA so the Montreal-based firm (based in Trudeau’s own riding) could escape criminal charges?   Jody Wilson-Raybould’s recorded conversation with the Clerk of the Privy Council, Michael Wernick, seems to suggest something here.  Is this one of the problems of ‘appearances’? But why can other countries use the DPA – and Canada not?

At any rate, here’s Montesquieu with historical and constitutional support for Jody Wilson-Raybould’s case for ‘prosecutorial independence’:

     Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.

     When legislative power is united with the executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch that makes tyrannical laws will execute them tyrannically.

     Nor is there liberty if the power of judging is not separate from the legislative power and from executive power.  If it were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator.  If it were joined to executive power, the judge would also have the force of an oppressor.

     All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers that of making the laws, that of executing public resolution, and that of judging the crimes or the disputes of individuals.[1]

Montesquieu, The Spirit of the Laws (1748)

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[1] Montesquieu, The Spirit of the Laws, eds. and trs. Anne Cohler, Basia Miller, Harold Stone (New York: Cambridge University Press, 1990), p.p.157.