Unravelin’ SNC-Lavalin

A Globe and Mail article on February 7, 2019 raised allegations of political interference in the decision of the Hon. Jody Wilson-Raybould, the former Minister of Justice and Attorney General, regarding an on-going SNC-Lavalin prosecution.

Let me be blunt: There is no substance to these allegations; there was no wrong-doing; and prosecutorial independence and the rule of law are in full force and vigor.

But let me tell you why I can so confidently say that:

JUST Committee

To examine this question, the House of Commons Standing Committee on Justice and Human Rights (JUST), of which I am a member, conducted eleven meetings over a span of two months, hearing over thirteen hours of testimony from ten different witnesses.

Cabinet Waiver

In order to facilitate this work, the government took the extraordinary step of waiving cabinet confidence and solicitor-client privilege for the tenure of the Hon. Wilson-Raybould as Minister of Justice and AG as relates to SNC-Lavalin.

This waiver was applicable both to Ms. Wilson-Raybould as well as to anyone who spoke with her on this matter during this relevant tenure — so that witnesses could speak fully to the issues under consideration.

Ms. Wilson-Raybould did object that the waiver did not cover the period after she left the role of Minister of Justice and AG, specifically referring to her brief time as Minister of Veterans Affairs and a meeting she had with the cabinet after she left cabinet, and that she was therefore unable to speak to these.

It must be remembered, however, that the the committee hearings were not a generic confessional. It is difficult to see that such testimony could have had any bearing whatsoever on the the matter at hand, being whether or not, as Minister of Justice and AG, she was subjected to inappropriate pressure or direction regarding SNC-Lavalin.

Key Witnesses

We heard from all key witnesses, including Ms. Wilson-Raybould herself, who appeared at our Committee for nearly four hours on February 27th, 2019. We welcomed her request for an unprecedented 38-minute opening statement. We received and made public her subsequent submission of supporting documents, and her audio recording.

We also heard from Mr. Michael Wernick, Clerk of the Privy Council; Ms. Natalie Drouin, the Deputy Minister of Justice and Deputy AG; and Mr. Gerald Butts, the PM’s former Principal Secretary. We received and made public supporting documents from these witnesses as well.

As the waiver was not in place when Ms. Drouin and Mr. Wernick first testified, which limited their testimony at that time, we invited them back after the waiver was issued in order that they could testify fully.

It is important to emphasize that the waiver applied equally to all these witnesses; no one was prevented from providing evidence for any timeframe relevant to our review.

We also heard from the Hon. David Lametti, the new Minister of Justice and AG, and we heard from subject matter experts regarding the Shawcross doctrine (which is tradition, not law, and provides guidance on consultations between the Minister of Justice/AG and his/her cabinet and other colleagues) and remediation agreements (aka deferred prosecution agreements) themselves, being the subject matter in relation to SNC-Lavalin.

Consistent Testimony

All testimony is consistent in terms of what happened, and when, though there are clear differences in perspectives and interpretation.

Given that the consensus of the committee, particularly and specifically including the opposition members, was that we believed Ms. Wilson-Raybould’s testimony, and allowing for those differences in perspective and interpretation, one can therefore rely on that testimony and no further corroborative testimony is required.

Prime Minister

The Prime Minister has been clear since the beginning that he and his staff always acted appropriately and professionally when discussing the potential loss of nine thousand jobs in communities across the country, and including the possible impact on pensions and suppliers, while respecting the independence of the AG, and — most emphatically — always mindful that appropriate consquences should in fact ensue for criminal corporate behaviour.

He has consistently and unequivocally stated that that “the decision was [Ms. Wilson-Raybould’s] alone to make” with respect to offering SNC-Lavalin a deferred prosecution agreement. Ms. Wilson-Raybould’s testimony itself supports this.

Direct Contacts

Ms. Wilson-Raybould speaks of, over an interval of about four months, some twenty contacts, comprised of ten meetings and ten phone calls, between her or her political staff and persons outside of her department in relation to this matter.

Only six of these involved Ms. Wilson-Raybould directly, of which she initiated three herself, and in two other cases agreed in advance to meet to discuss the matter.

Only one of these, very early on, involved the PM, at which point when asked if he was interfering politically in her decision, he emphatically said “No.” That’s all from Ms. Wilson-Raybould’s own testimony.

This is not inappropriate pressure.

Other Contacts

The other contacts noted by Ms. Wilson-Raybould occurred between members of her political staff, and political staff or advisors for the Minister of Finance, or the PMO.

All Contacts

These contacts were all seeking to understand why this brand-new, never-before-used law (criminal code 715.3) given circumstances that seemed to fit its intent and purpose like a glove, was not applicable, and asking that she solicit additional legal advice from the likes of former Supreme Court justices to further guide her decision.

This is not inappropriate pressure.

Political Conversations

Ms. Wilson-Raybould does note several instances where conversations with parliamentarians and/or political staff reflected upon an on-going provincial election in Québec and other political considerations, and which she took amiss in the given context.

It must be said, however, that parliament hill is arguably the most politics-rich venue in the country — political conversations occur all the time in circumstances of all sorts, particularly among parliamentarians and political staff, and there’s not always a clear boundary between them.

The AG role is supposed to be above partisan considerations, of course, but political does not equate to partisan: it is essential, for example, to be aware of the political landscape in order to time actions and announcements so as not to affect markets, or so as not to affect the outcome of provincial or municipal elections.

A senior minister and AG, should be able to parse these situations and ensure that she does not inappropriately take them into account.

But in no case was she directed by anyone to change her decision. Ms. Wilson-Raybould herself states this unequivocally.

Director of Public Prosecutions

It should be remembered that the Director of Public Prosecutions, who had already made her own decision on the matter, operates independently — but still under authority delegated from the AG. The AG nevertheless retains the legislated right to intervene in a transparent way, if she feels it is in the public interest to do so. Note that a lawful intervention is not interference.

In contrast, Ms. Wilson-Raybould seemed to consider that any intervention on her part, irrespective of the public interest, would constitute interference, and that people asking her to consider it further “once she’d made up her mind” was inappropriate interference by them.

Conclusions

Based on all the briefs and testimony, however, I must respectfully disagree, and conclude that all relevant laws, rules, and ethics were scrupulously observed.

As in the beginning, spurred by secret, unaccountable whispers in the shadows, there is in the end no substance to the allegations.

There was no wrong-doing. Prosecutorial independence and the rule of law are preserved, well served, and are entirely intact.

Nevertheless, Canadians now have on the public record the necessary information to draw their own conclusions.

Expert Advice

In addition, going forward, the government is seeking external expert advice on some questions as have arisen here; for example: we have asked the Hon. Anne McLellan, a former Minister of Justice and AG, and a former deputy PM, to study whether the roles of Minister of Justice and AG should be split.

Truth to Power

There are a number of other points to wrap-up here, again relying on Ms. Wilson-Raybould’s own testimony:

Whistle-Blower?
Fired?
Mistreatment?
Independence?
Resignation?

Some people laud Ms. Wilson-Raybould as a “whistle-blower.” But Ms. Wilson-Raybould herself has stated many times unequivocably that she did not leak the allegations to the Globe and Mail.

I take her at her word; Even had there been found substance to these allegations, she is not a “whistle blower.”

Neither Ms. Wilson-Raybould nor Dr. Philpot was removed from cabinet — “fired,” or otherwise. They both individually resigned from their respective cabinet roles for their own respective reasons and solely on their own individual initiatives.

I have no doubt that they were both serious and sincere in their reasons, but in the event, both mistaken.

The PM appointed Ms. Wilson-Raybould to be Minister of Justice and AG, then, three years later, offered her the role of Minister of Indigenous Services, which she declined, accepting instead the role of Minister of Veterans Affairs (and Assistant Minister of National Defence).

These are all senior and important portfolios; it is absurd to consider any move from one to the other as a firing or even a demotion. I cannot see how this is in any way mistreatment of Ms. Wilson-Raybould. Ms. Wilson-Raybould herself publicly stressed that this was in fact not a demotion.

It is the PM’s exclusive prerogative to decide to whom to offer any given ministerial role, as well as to change things around when or if he feels it is appropriate to do so, on whatever basis he feels it is appropriate to do so.

It would be highly inappropriate, even disingenous, to accept such a role, which requires confidence in the PM, if lacking such confidence.

To accept and be sworn-in to this new role Ms. Wilson-Raybould must have had confidence in the PM (which apparently, some mere three weeks later, she lacked, backdating her discontent into the prior context of SNC-Lavelin).

Nothing Ms. Wilson-Raybould did after leaving the role of AG protected or defended the role of AG, or prosecutorial independence itself.

If, while AG, she had felt that there was pressure or direction from her peers or superiors of an inappropriate nature, over which she could not assert control, or over which she needed to take a stand, she needed (per the Shawcross convention) to resign as Minister of Justice and AG, with an appropriate public statement.

“… one might infer that people in the AGs office thought a line had been crossed — someone was, after all, the Globe’s source. But if a clear Shawcross line was crossed, the expectation would then be that the AG would resign. That did not happen.”
— Professor Craig Forcese, Faculty of Law, University of Ottawa

Resigning weeks later from a different portfolio does not touch-upon or speak to this in any way, shape, or form.

Further to the matter of defending AG and prosecutorial independence, I cite this from Ms. Wilson-Raybould’s committee testimony:

“… I was confident, in in my role as the Attorney General, that I was the final decision-maker on whether or not a directive would be introduced on the SNC matter. So I knew that as long as I was the Attorney General, this would not occur.
“I had concerns that when I was removed as the Attorney General, this potentially might not be the case. I decided that I would embrace this new role, a very important role, and I really want to say publicly that the role at Veterans Affairs is an incredibly important role, and I took it very seriously.
“I had decided to take on the role requested of me by the Prime Minister, but I had concerns, and I knew that in my new role, still sitting around the cabinet table, if a directive had been placed into the Gazette, I would have resigned immediately from cabinet.”

This is a remarkable statement in a number of ways:

It underscores that, despite expressing confidence in the PM by accepting a new cabinet role, she did not in fact have such confidence;
“I was confident …that I was the final decision-maker on whether or not a directive would be introduced on the SNC matter” — explicitly (and confidently!) affirms that her independence as AG was not in question, and that it remained fully intact;
“As long as I was Attorney General this would not occur” — doesn’t really signal an open mind, or being receptive (as the AG is obligated to be) to whether or not a legitimate public interest might at some point warrant an intervention; this also further emphasises that, as noted in the above point, her independence as AG was not in any way in doubt;
Despite purporting to stand-up for prosecutorial independence — by resolving in this way to resign from cabinet, she had resolved to undermine the new AG in his own decision, if that decision might differ from hers! This is a passive-agressive intent to infringe, in her own turn, upon the independence of the new AG.
Deciding to “embrace this new role” in such a conditional manner, i.e.: depending on what a different minister might decide to do in his own independent role, is a fickle embrace indeed.

It should also be noted that while this posture might give some insight into the cryptic and as-yet-unstated reason Ms. Wilson-Raybould resigned as Minister of Veterans Affairs, no such directive was in fact issued by the new AG (as would be his right, as AG, if he decided that it would serve the legitimate public interest).