The ax fell Monday on the Mâchurer investigation, but this long-term work of the Permanent Anti-Corruption Unit (UPAC) was already undermined by information leaks that undermined the confidentiality of police procedures, as well as by pressure from the lawsuit for damages from former Premier Jean Charest. Even if some see this as another failure of UPAC, experts believe that its raison d’être remains and that legislative changes could help these mega corruption investigations.
The Unit had argued in the past that this investigation, which began in 2014 and focused on the financing of the Quebec Liberal Party between 2001 and 2012 — the Charest years — was considerable, both in terms of the number of witnesses met and the quantity of documents involved.
Are these large-scale police investigations doomed to failure because they are too vast, too long or too complex? It’s not the investigation that caused the problem here. It was the journalistic leaks that undermined the integrity of the evidence, says professor of public and administrative law at the University of Montreal Martine Valois.
She recalls that the existence of the Mâchurer police investigation was revealed to the public through information leaks, while UPAC documents were released by the Quebecor media in 2017. However, to be carried out port, police investigations must be secret, she reminds us. There is also the possibility that the leaked evidence may be contaminated and cannot be used in court.
These leaks have made the quality of the information less credible, says political science professor at the University of Montreal Denis St-Martin, who is interested in corruption issues.
And here, the loss of confidentiality also had this consequence in 2020: a lawsuit of more than two million dollars from Jean Charest, pleading that there was damage to his reputation since everyone knew that he was doing the under investigation: normally this information is only released when charges are laid. However, no charge has been brought against Mr. Charest.
The press release published Monday by UPAC is very laconic and does not reveal the reasons behind its decision to drop Mâchurer, notes Professor Valois. He does not indicate that the evidence amassed by the police over the past eight years was not sufficient, but takes the trouble to mention “the resources already invested in this investigation”. This suggests that UPAC was not in a position to file charges soon, she believes.
Moreover, “if the investigation had remained confidential, there would have been no reason to put an end to it”: it could have continued at its own pace. The law professor expects an amicable settlement of Mr. Charest’s lawsuit in the coming weeks.
big fish
What made the police’s job difficult was the fact that their investigation targeted a former prime minister, says Denis St-Martin. We see it in other countries, he says: “When we target the leading heads, it never goes well for police investigations”.
But if the UPAC did not carry out its investigation until the end in the case of Mâchurer, this does not mean that its investigations will never succeed. Many of these led to the laying of criminal charges, most often in less publicized cases, against lower profile public servants. “All the UPACs of the earth” have difficulty when it comes to investigations aimed at leading heads. Small fish are easier to catch than big fish, he illustrates.
He also notes that even if the Liberal Party of Quebec is no longer in power, its network is still there, and that those in power have enormous resources and good lawyers.
change the law
The current commissioner for the fight against corruption, Frédérick Gaudreau, has already mentioned the complexity, over time, of corruption investigations. He wants legislative changes to facilitate the work of his team.
He is right, spontaneously exclaims Professor St-Martin. When it comes to demonstrating “corrupt intent”, the bar is very high and “we break our teeth every time”. According to the professor, a little different criminal justice would be needed for cases of this type.
He has already proposed to imitate France, which allows civil society groups to reopen files in corruption cases that have been dismissed by the public prosecutor, sometimes too cautious. “It allows them to revive”. He also points out that this was done in the case of former President Nicolas Sarkozy. It is a unique process, which depoliticizes the fight against corruption, he judges.
Professor Valois sees in the decision of the UPAC to put an end to Mâchurer a message to the State: Mr. Gaudreau said: “we need more resources”.
But as for changing the rules of criminal law, she finds it difficult to see how this can be accomplished: the presumption of innocence and protection against abusive searches are rights protected by the Canadian Charter of Rights and Freedoms, she recalls. The criminal law rules cannot be different because it concerns cases of corruption.
But one thing could be changed, she says. When the police proceed to seize documents, defense lawyers rebel and try to block them, saying that they are protected by professional secrecy. A long process ensues, during which the selection must be made between what is protected by the “attorney-client privilege” and what is not. Such disputes can go all the way to the Supreme Court of Canada, she continues. “And that stops everything, for years.” Defense lawyers know this and use it: “It’s the lethal weapon”.
The solution could be to put in place a more flexible mechanism, by which judges must decide much more quickly on what is protected by professional secrecy, she indicates. Obviously, this may require additional resources, both at the level of crown attorneys and judges, for it to be carried out smoothly.
UPAC has its raison d’être, believes Martine Valois. “If we give up, we give the key to the state treasuries to everyone. And we can’t do that.”