Top bureaucrat denies Wilson-Raybould faced 'inappropriate' pressure on SNC-Lavalin affair
Published Thursday, February 21, 2019 10:52AM EST
Last Updated Thursday, February 21, 2019 6:37PM EST
OTTAWA – Canada's most senior bureaucrat is disputing the allegations that Prime Minister Justin Trudeau’s office pressed former minister Jody Wilson-Raybould to drop a criminal prosecution against SNC-Lavalin, saying that while it's likely she could have felt pressured, the question is whether it was "inappropriate."
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"There's pressure to get it right on every decision, to approve, to not approve, to act, to not act. I am quite sure the minister felt pressure to get it right," clerk of the Privy Council Michael Wernick told the House of Commons Justice Committee.
Citing a conversation he had with her about the case, months after the prospect of a remediation agreement was rejected by federal prosecutors, Wernick said he did convey to her the "context" that: “there were a lot of people worried about what would happen, the consequences. Not for her, the consequences for the workers and the communities, and the suppliers.” Despite the decision being made, the attorney general still had the capacity to intervene and direct federal lawyers to go in the direction of remediation. Wilson-Raybould never did this.
Wernick said the determination that those probing the matter will have to make is whether that or other conversations constitute as "inappropriate pressure."
For the opposition, it does.
"That is inappropriate political interference, that is inappropriate pressure. That's telling the attorney general what to do," Conservative Deputy Leader Lisa Raitt said.
For his part though, Wernick—who has been a public servant under both Liberal and Conservative governments over the last three decades—said he did not witness or exercise any inapropriate pressure, adding that he is quite confident that his view of the conversations he had with Wilson-Raybould on the matter were "lawful and appropriate," and part of vigorous debate internally.
He also offered that had she felt undue pressure, Wilson-Raybould could have gone to Trudeau, or the ethics commissioner, and she didn't.
Wernick predicted that Wilson-Raybould will, when she testifies, express concern with three events: A meeting she had with Trudeau about SNC-Lavalin, at which Wernick was present; a second meeting between PMO staff and Wilson-Raybould's chief of staff on Dec. 18; and a third phone conversation Wernick had with her on Dec. 19, which he classified as a check-in heading into the winter sitting of Parliament.
Weeks later she was shuffled out of the justice portfolio into veterans affairs, a move she agreed to, but many saw as a demotion. The opposition have pointed to her shuffle as proof she was punished for not biting on the idea of a remediation agreement for SNC-Lavalin.
"How she interprets or perceives those conversations she can tell you next week, I can tell you, my view very firmly is they were entirely appropriate, lawful, legal, and I am prepared to submit to the judgment of the ethics commissioner on that," Wernick said.
During his testimony, Wernick repeatedly referenced the federal ethics commissioner Mario Dion’s ongoing investigation into the scandal and whether a public office holder—Trudeau— improperly influenced another person. Wernick said that this is the appropriate venue for the matter to be investigated.
"I think the testimony is stunning. I think the amount of pressure that the prime minister's office either through his own operatives or through the clerk of the Privy Council is incredibly unprecedented," Raitt said.
"How can he speak for how the former attorney general felt or didn’t feel?" asked NDP MP Murray Rankin after the meeting.
The opposition did ask Wernick about his meeting with SNC Lavalin, which they considered unusual. Wernick did meet with officials from the company on Sept. 18, after the deferred prosecution was rejected. The pressure from Quebec was intense, he said, from both the company and the Quebec premier's office. But Wernick said that he told them to talk to the attorney general.
Initial report 'contains errors'
During his direct and detail-filled testimony Wernick said the allegations as first reported in The Globe and Mail on Feb. 7 "contains errors, unfounded speculation and, in some cases, is simply defamatory."
In its initial story, the Globe reported that the Prime Minister's Office pressured Wilson-Raybould—who was the attorney general at the time— to ask federal prosecutors to make a deal in the corruption and fraud case against the Quebec-based engineering and construction giant that employs thousands in Canada. The newspaper reported—citing sources speaking on condition of anonymity— that Wilson-Raybould was leaned on to have federal prosecutors pursue a remediation agreement rather than criminal prosecution for the alleged millions paid in bribes to Libyan officials years ago, but she was unwilling.
The potential issues with this is that the AG could instruct federal prosecutors to take another approach, though if the AG was to make that decision it has to be done on their own, without any pressure or political considerations in order to maintain integrity of the judicial system.
Remediation agreements — or Deferred Prosecution Agreements (DPAs) — can include having the company accept responsibility, denounce the wrongdoing, vow to implement corrective measures, and pay financial penalties. These mechanisms are a new tool in Canadian law, passed by this Liberal government as part of an omnibus bill. SNC-Lavalin lobbied hard to be granted a DPA in their case, but the federal prosecutors have denied that approach. If the company was criminally convicted they'd be banned from securing Canadian government contracts for a decade, potentially putting jobs on the line.
Wilson-Raybould has yet to publically confirm or deny the reports on her facing pressure, citing solicitor-client privilege. Though, The Globe reported Tuesday that when she met with cabinet at her request on Tuesday, she did tell her former ministerial colleagues that "she believed it was improper for officials in the Prime Minister's Office to press her to help SNC-Lavalin Group Inc." CTV News has not independently verified this reporting.
Wilson-Raybould is set to appear before the committee on Tuesday, after an about-face from the Liberal MPs, who initially shot down that request. Much to the chagrin of the opposition, the committee is still refusing to call anyone from the PMO, or recently-resigned top PMO adviser Gerald Butts to appear. In his statement of resignation Butts denied any wrongdoing in relation to conversations he had with Wilson-Raybould on this subject.
Whether Wilson-Raybould will be able to actually say anything when she appears at committee has been viewed as largely dependent on whether the positon she and Trudeau have stuck to on solicitor-client privilege, evolves from their current position.
Questioned validity of client-privilege
The merits or applicability of solicitor-client privilege in this case have been questioned by some legal experts in the last few days, and Wernick added his voice to that line of thinking on Thursday.
"My conclusion… I do not see where the former attorney general was a solicitor. The matter was never discussed at cabinet, never. So she was not giving advice to cabinet. She was not advising the prime minister," Wernick said.
"The prime minster said at every occasion, verbally and in writing, she was the decider, so she was not giving legal advice to the prime minister. She was the decider, the full and final decider," he said.
This comes after Wilson-Raybould rose in the House for the first time since the scandal began unfolding to say that "privilege and confidentiality are not mine to waive and I hope that I have the opportunity to speak my truth."
Justice Minister and Attorney General David Lametti also testified, alongside his deputy minister Nathalie G. Drouin. Asked about whether his legal opinion—which Trudeau has asked for—on whether solicitor-client privilege can be waived before she testifies, he couldn't say.
Rankin called the government’s citing of solicitor-client privilege, a "crutch."
Lametti also said that the PMO discussing the option of pursuing a deferred prosecution with Wilson-Raybould would have been appropriate.
Wernick also said that Canadians should not be concerned about the rule of law in Canada, saying that since the charges were first laid several years ago, the federal government has not "compromised" the independence of the prosecutorial function, citing that the case is proceeding to trial despite SNC-Lavalin's lobbying efforts.
Speaking to reporters in Halifax, N.S. on Thursday morning, Prime Minister Justin Trudeau cited cabinet confidence in not directly responding to questions about the Globe report about Wilson-Raybould telling cabinet she was pressured. He called the concept of keeping inter-cabinet discussions a secret, a "central tenet" of the parliamentary system.
"We believe in our institutions. We believe in the independence of the judiciary, and we believe in fighting for good jobs and we will always do that in the right way," Trudeau said. He also restated that he was disappointed that Wilson-Raybould resigned form cabinet after the scandal began unfolding, and said he remains unclear on why she made the decision to leave.
To begin his remarks Wernick stunned many with a lengthy and clear statement about the state of political discourse in Canada.
"I am deeply concerned about my country right now, and its politics, and where it's headed… I worry about the reputations of honourable people who have served their country being besmirched and dragged through the market square," Wernick said. “Most of all I worry about people losing faith in the institutions of governance in this country and that's why these proceedings are so important."
The committee's study will also feature academics on the underlying legal aspects at the heart of the affair: the legal provision tucked into a recent omnibus bill known as remediation or deferred prosecution agreements, the Shawcross doctrine—which has to do with the independence of the attorney general in making decisions—and the discussions between the AG and government colleagues on SNC-Lavalin.
In a statement sent by the Liberal Research Bureau, the Liberal MPs on the committee said that "a few important facts" were learned in Thursday’s meeting, including as they saw it, that both Wernick and Lametti: "confirmed it is appropriate for the Prime Minister and officials to talk to the minister of justice and attorney general about an active case… We look forward to additional people coming to the Committee so we can hear from them in their own words."
Canadian Press: 3 times when SNC-Lavalin was discussed: Clerk
Sept. 17, 2018
A meeting involving Wilson-Raybould, Prime Minister Justin Trudeau and Wernick, two weeks after the director of public prosecutions decided not to negotiate a remediation agreement with SNC-Lavalin.
Wernick said Trudeau called the meeting to discuss the Indigenous rights recognition framework which had bogged down due to "a very serious policy difference" between Wilson-Raybould and Crown-Indigenous Relations Minister Carolyn Bennett, and other colleagues, about how to proceed on the framework. Almost the entire meeting was devoted to that subject, he said, but Trudeau did also reassure Wilson-Raybould that any decision on whether to instruct the public prosecutor to drop the SNC-Lavalin prosecution was hers alone.
Dec. 18, 2018
A meeting between the prime minister's staff and Wilson-Raybould's chief of staff. Wernick, who wasn't involved, did not provide any details.
Dec. 19, 2018
A conversation between Wilson-Raybould and Wernick.
Wernick said he was trying to get a handle on the issues that might confront the government when Parliament resumed sitting in January. He wanted to know, among other things, whether a remediation agreement with SNC-Lavalin was still an option and said he "conveyed to her that a lot of her colleagues and the prime minister were quite anxious about what they were hearing and reading in the business press ... about the company moving or closing" if the prosecution continued. There were fears it would have consequences for innocent employees, shareholders, pensioners, third-party suppliers and affected communities.
Wernick said he's confident the conversation was "within the boundaries of what's lawful and appropriate. I was informing the minister of context. She may have another view of the conversation but that's something that the ethics commissioner could sort out."
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