Jody Wilson-Raybould says she is “anxious” to testify before the justice committee probing the SNC-Lavalin affair. Today, Prime Minister Justin Trudeau said she can speak freely — as long as it doesn’t compromise two court cases underway.
Wilson-Raybould was expected to speak before the committee this week; a time has not yet been set for her appearance.
Today, she wrote to committee chair Liberal MP Anthony Housefather, saying she believes it would be useful for the committee to have an “authoritative statement” on the scope of what she can say prior to her appearance. She said she can’t waive solicitor-client privilege and cabinet confidence, but the government can.
“I am anxious to appear at the first available time,” she wrote. “However, I believe that in advance of my appearance the members of the committee and I should have as much clarity as we can in relation to the possible constraints on the matters about which I may properly testify.”
Conservative Leader Andrew Scheer wants Prime Minister Justin Trudeau to appear at the justice committee studying the SNC-Lavalin affair. (Fred Chartrand/Canadian Press)
Wilson-Raybould, who has retained retired Supreme Court justice Thomas Cromwell as counsel, also requested an extended period of 30 minutes to make an opening statement to the committee.
Under pressure to waive solicitor-client privilege for his former justice minister and attorney general, Trudeau said today Wilson-Raybould will have leeway to speak but did not specify the limits imposed on her testimony.
“Later today, the government will confirm that the member for Vancouver-Granville will be able to address relevant matters at the committee while ensuring that the two active court cases are not jeopardized,” he told the House of Commons during the daily question period.
Earlier today, Conservative Leader Andrew Scheer called on Trudeau to testify at the committee, insisting Canadians should be outraged by the allegations of political interference in a criminal case.
A motion tabled by the Conservatives said Trudeau should be called to answer questions given his “alleged direct involvement in a sustained effort to influence SNC-Lavalin’s criminal prosecution.” It called on the prime minister to appear at a two-hour televised committee under oath sometime before Mar. 15.
The motion was defeated in the Commons this evening.
During a news conference on Parliament Hill Monday, Scheer described the SNC-Lavalin affair as an unprecedented attempt to alter the course of justice through political interference.
“Politicians don’t get to execute our justice system,” he said.
“What we’ve seen unfold over the last two weeks is a textbook case of government corruption, with those at the very top of the Prime Minister’s Office implicated in what could be the obstruction of justice.”
Scheer said Trudeau presided over an unsolicited, co-ordinated and sustained effort to see the former attorney general override a decision by the Public Prosecution Service to proceed with the criminal prosecution against SNC-Lavalin, the Quebec-based global engineering and construction company.
“Canadians need to be outraged at the suggestion that politicians were putting pressure on independent agents of the Crown, independent legal officers, to try to get a better deal for well-connected friends of the Liberal Party,” he said. “That is unacceptable.”
It’s rare for a prime minister to appear before a committee.
On Sept. 7, 2006, then-prime minister Stephen Harper appeared before a special committee on Senate reform.
Former prime ministers have occasionally appeared before Commons committee hearings. Former prime minister Paul Martin appeared before a committee on the Kelowna Accord on Nov. 9, 2006 and Brian Mulroney spoke before a committee looking into the Airbus settlement on Dec. 13, 2007.
Later today, the justice committee will hear from a number of legal experts.
Jody Wilson-Raybould — whose resignation from Trudeau’s cabinet on Feb. 12 after a Feb. 7 story in the Globe and Mail touched off the scandal — is expected to testify this week.
Last week, Canada’s top civil servant Michael Wernick told the justice committee that he warned Wilson-Raybould that there would be economic “consequences” from prosecuting SNC-Lavalin, including big job losses. But he maintained that he, Trudeau and officials in the Prime Minister’s Office did not impose any inappropriate pressure on the minister.
Trudeau said Friday that Wernick is an “extraordinary public servant” who has served Canada with “integrity and brilliance.”
“I would recommend that people pay close heed to the words of the clerk of the Privy Council. His service to this country over decades in the public service leaves him well-positioned to understand what institutions are grounded in, and make sure that we’re doing the right things as a government.”
Legal experts are expected to explain remediation agreements when they appear at committee today.
In September 2018, the government amended the Criminal Code to allow for such agreements, enabling prosecutors to use them as an alternative to a criminal trial “at their discretion to address specified economic crimes if they consider it to be in the public interest and appropriate in the circumstances,” according to the Department of Justice website.
If the accused organization upholds the terms and conditions of the agreement, charges could be stayed and a criminal prosecution avoided.
Shawcross doctrine
According to the government website, the purpose of remediation agreements is to denounce wrongdoing and hold the organization to account, while reducing harm to innocent employees, shareholders and other third parties. The organization would have to accept responsibility for the wrongdoing and pay a financial penalty.
In the case of SNC-Lavalin, the Public Prosecution Service of Canada opted not to pursue a remediation agreement and chose instead to proceed with prosecution. It advised the company of that decision on Sept. 4, 2018.
Wilson-Raybould, as attorney general at the time, had authority to override the decision and halt prosecution. Wernick confirmed last week several meetings were subsequently held — including a telephone call on Dec. 19 he initiated, during which he warned Wilson-Raybould of the economic consequences of prosecuting a company that employs about 9,000 people.
He insisted there was never “inappropriate” interference.
According to the so-called Shawcross doctrine, the attorney general must consider the impact of prosecution on the public interest. The attorney general can consult with cabinet colleagues, but those discussions are limited to hearing advice, not receiving directions.
The Feb. 7 Globe and Mail report said officials pressed Wilson-Raybould to stop prosecution against SNC-Lavalin on fraud and corruption charges related to business dealings in Libya.
The committee is expected to hear expert opinions on what constitutes appropriate advice and what constitutes undue or inappropriate pressure or direction.
Delay advising investors
Arguing in favour of calling Trudeau to speak to the committee, Conservative justice critic and deputy leader Lisa Raitt said it’s in the public interest to have the prime minister testify in order to bring together the various threads of the SNC-Lavalin affair.
Raitt also asked why SNC-Lavalin was told of the prosecutor’s decision on Sept. 4 but didn’t disclose that information to its shareholders until Oct. 10.
“Who in the Prime Minister’s Office, what cabinet minister, or even did the prime minister give assurances to SNC-Lavalin that they would not have to disclose a material fact to their shareholders because they were going to sort it all out?” she asked.
Five legal experts appeared before the committee today; some couched their comments by saying they don’t have all the facts yet.
Mary Ellen Turpel-Lafond is a senior associate counsel at Woodward and Company LLP and a professor at the Peter Allard School of Law, University of British Columbia. She told the committee the law imposes limits on anyone trying to influence an attorney general acting in the role of chief prosecutor.
‘Crisis’ in rule of law
“Those engaging in that must point to lawful authority that actually backs up their actions, and I would say the Shawcross doctrine is a flimsy authority,” she said.
Turpel-Lafond said she believes it’s important to hear from all of those involved in the SNC-Lavalin affair, not just Wilson-Raybould, because the situation is escalating to the level of a “crisis in the rule of law.”
She said the RCMP integrity unit could investigate the matter — if it isn’t doing so already — to determine if there was a “subtext” to the discussions between various officials and Wilson-Raybould regarding the criminal prosecution.
“If there’s evidence that a prosecutor is fired and there was an attempt to influence or direct her attention to something that didn’t have lawful authority, then it does raise the spectre of obstruction of justice, because obstruction of justice requires this sort of fear-favour element,” she said.
Maxime St-Hilaire, associate professor at the Faculty of Law, Université de Sherbrooke, said he finds it difficult to understand how information conveyed to an attorney general would be useful after a decision had been made to not overturn a prosecution.
“If there are cabinet discussions after that decision has been made, then I find that quite difficult to understand,” he said.
Wendy Berman, lawyer and partner at Cassels Brock and Blackwell, explained the role of remediation agreements, noting they can take several years and are meant to prevent situations where companies might “wither away” and cause collateral damage.
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