Talks with ex-minister ‘troubling,’ MPs told
Discussions the Prime Minister’s Office had with former attorney general Jody Wilson-Raybould about criminal charges against SNC-Lavalin are “troubling,” lack a strong legal justification and may have led to her being “fired,” a respected jurist said Monday.
“It may well be that we have a situation where we have a prosecutor that was removed from her role, as opposed to an attorney general that should have resigned,” Mary Ellen Turpel-Lafond, a former Saskatchewan provincial court judge, told the Commons justice committee. Her comments came as Prime Minister Justin Trudeau’s cabinet issued an order-in-council waiving cabinet confidence and solicitor-client privilege for Wilson-Raybould for discussions she
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had on SNC-Lavalin, clearing the way for her testimony to the committee at date still to be determined.
However, “in order to uphold the integrity of any criminal or civil proceedings,” the waiver issued Monday night did not extend to communications Wilson-Raybould had with Kathleen Roussel, director of public prosecutions, concerning SNC-Lavalin.
The director of public prosecutions decided last fall to proceed with criminal charges against SNC-Lavalin, rejecting the company’s request for a remediation agreement that would have spared it a conviction and, with it, a 10-year ban on government contracts.
Wilson-Raybould appears to have stuck by that decision in the face of meetings with Prime Minister Justin Trudeau’s senior aides and the top civil servant, despite concerns about the future of the Quebec company if the charges went ahead.
Now those interventions are in the spotlight amid questions whether lines were crossed.
On Monday afternoon, Turpel-Lafond told the justice committee of Wilson-Raybould’s resignation that “in fact, prosecutors should not resign. Lead prosecutors, when they’ve taken a decision, should hold firm to their position and that is consistent with the rule of law.”
“Perhaps this is an instance where a prosecutor was actually fired for establishing a boundary that was not popular or accepted. I’m not sure of that. I think there is some suspicion and concern here about that.”
Turpel-Lafond, who currently practises law and teaches in Victoria, expressed serious doubts about the government’s claim — articulated by Wilson- Raybould’s successor, David Lametti, Clerk of the Privy Council Michael Wernick and Liberal MPs — that officials are permitted to hold robust discussions with an attorney general under the so-called Shawcross Doctrine.
“I think that’s a fairly flimsy foundation as a lawful authority,” Turpel-Lafond said.
She said if the talks went beyond a “more passive and respectful approach,” and the purpose “was to persuade the attorney general as prosecutor to take a different position on a prosecution, it triggers a serious rule-of-law concern.”
Once a decision is made to pursue a prosecution, there is “limited authority for anyone to intervene at that decision point and going forward,” Turpel-Lafond said.
And she cast doubt on Lametti’s and Wernick’s assertions that the decision to negotiate a remediation agreement with SNC-Lavalin is one that still remains open to the attorney general, even with the preliminary inquiry underway.
She said there should be a “full” airing of what was said to Wilson-Raybould, adding it would be something she’d expect the RCMP’s sensitive investigations or “integrity” section would already be looking into.
Two other legal experts agreed that the Shawcross Doctrine — a concept imported from the United Kingdom — does not justify any pressure put on an attorney general to make or change a prosecutorial decision. That decision, they said, is the attorney general’s alone to make.
“The attorney general should not be put under pressure by colleagues and in particular should not be put under partisan political pressure,” said Mary Condon, interim dean of Osgoode Hall Law School.
Maxime St-Hilaire, an associate law professor at the University of Sherbrooke, said the clear line would be better drawn if Canada’s attorney general did not also serve as justice minister inside a federal cabinet.
Trudeau told the House of Commons he would partially lift confidentiality obligations on his former attorney general so she can testify about allega- tions that his office was at the centre of what the Opposition says was a “sustained effort” to influence the criminal prosecution of SNC-Lavalin.
Under fire in the House for weeks, Trudeau told question period Monday that Wilson-Raybould would be able to appear at the justice committee and “will be able to address relevant matters at the committee while ensuring that the two active court cases are not jeopardized.”
Monday night, his cabinet issued the order-in-council.
It was not entirely clear when her long-awaited appearance will be scheduled, as her expected appearance Tuesday was postponed. In a letter sent earlier Monday to the committee, Wilson-Raybould stated that she is “anxious to appear at the first available time.”
But she said that she remained constrained by what she can say by solicitor-client privilege, cabinet confidence and the ongoing cases involving SNC-Lavalin still before the courts.
“The government can waive solicitor-client privilege and cabinet confidence. I cannot, Wilson-Raybould said in her letter to Liberal MP Anthony Housefather, chair of the committee.
She said she wants to delay her testimony until “we all have whatever clarity we can have about these issues.”
When she does appear, Wilson-Raybould said she wants to make an extended opening statement of about 30 minutes to provide “my best recollection of all relevant communications.”
Trudeau has denied he or anyone in his office applied any inappropriate pressure on Wilson-Raybould. She has not yet spoken publicly to confirm or deny the allegation, saying she is bound by solicitor-client privilege. Late Monday, the Commons voted 155-106 against compelling Trudeau to testify before the committee, as the Conservative and NDP opposition wanted. The prime minister again defended his actions, telling the Commons that “at every stage,” his government did what it promised Canadians, to stand up for jobs and growth while protecting the rule of law and the independence of the justice system.
“We’ve consistently and continually stood up for the 9,000 jobs at SNC-Lavalin and good jobs right across the country,” Trudeau said.
“That’s exactly what we’ll continue to do and we will continue to do it in a way that ... always respects the rules and norms that govern our institutions.”
SNC-Lavalin and two former employees were charged in 2015 under the Corruption of Foreign Officials Act with one count of bribing former members of the Libyan regime of Muammar Gaddafi, and one count of fraud under the Criminal Code.