Jennifer Wells
Wilson-Raybould left many unanswered questions, which Butts may help to answer
WilsonRaybould left us with a lot of unanswered questions,
It has been quite the pile-on.
Perhaps “grenade throwing” would be a more apt description.
And yet, questions remain.
Of course I am referring to the Jody Wilson-Raybould affair, or the SNCLavalin scandal if you prefer.
Here are a few confusions to ponder as the prime minister’s former principal secretary, Gerald Butts, makes his appearance before the House of Commons justice committee, scheduled for Wednesday morning. Am I the only one missing some sharp details?
What follows may go some way toward explaining why I’m not much fun at parties.
On what date did Wilson-Raybould, wearing her attorney general’s hat, affirm the decision taken by the director of public prosecutions not to negotiate a deferred prosecution agreement (DPA) with SNC-Lavalin? Surely there must be a memo somewhere to that effect.
We know from her testimony that on Sept. 4 Wilson-Raybould received a memorandum in which she was informed of the director’s decision not to
issue an invitation to SNC to negotiate a DPA. Wilson-Raybould was out of the country at the time. So we know that the attorney general was notified in a formal, and presumably timely, manner. The so-called Section 13 notification was forwarded by Wilson-Raybould’s office to the PMO sometime in September. The memo included the standard language in such matters, specifically, Wilson-Raybould testified, that the “director provides the information so that the attorney general can take such course of action as they [sic] deem appropriate.”
Remember, the new, neverbefore-used legislation governing such agreements followed the U.K. template as opposed to that of the U.S. This is critical. In the U.K., it is the Crown Court that controls the ultimate outcome, independently reviewing the work of designated prosecutors. Similarly in Canada this falls to the attorney general.
In this role, Wilson-Raybould testified, she launched a process of due diligence, putting in motion “a careful consideration and study of the matter.” One might imagine that this would be rigorous work, involving extensive outreach, in order for the attorney general to satisfy herself in this first crucial test case that the appropriate decision had been arrived at. Otherwise there would be not much point in legislating the two-step approval process.
What was the extent of this due diligence? We do not know. How long did this examination take? Not very, it would seem.
Wilson-Raybould was imprecise in time-stamping her decision. While the Section 13 note to her was precisely dated, what happened after that was meandering and confusing. Her view had “formed,” she testified, on or before Sept. 16, that it was “inappropriate for me to intervene in the decision of the director of public prosecutions in this case.”
Of course if the director had concluded that a DPA was warranted, it would have been the responsibility of the attorney general to ensure and publicly confirm that justice was being served and that it was in the public interest to proceed.
When did Wilson-Raybould formally close the book on this?
What she describes as “one of the first communications,” an email to her chief of staff from Ben Chin in Finance Minister Bill Morneau’s office, was received on Sept. 6 at a time, according to her testimony, that she was engaged in care- fully studying the matter.
In her testimony it’s clear that between Sept. 4 and Sept. 16 she had no direct contact about the prosecutor’s decision with anyone beyond her own staff, who kept her apprised of conversations and communiqués.
During a one-on-one meeting with the prime minister on Sept. 17 she informed Trudeau that she had conducted her due diligence and had made up her mind on SNC-Lavalin.
She nevertheless agreed to engage in further conversations with her deputy minister and the clerk of the privy council. On Sept. 19, the clerk, Michael Wernick, told her that SNC didn’t “have anything” from the director of public prosecutions. She suggests to Wernick that SNC was free to “send me a letter expressing their concerns, their public interest argument” which she would then forward to the director.
Such a letter, she said, would be “permissible.”
Is it a reasonable reading of the activity through most of September that the file had not been formally closed on the matter?
When did the director of public prosecutions inform SNC that an agreement would not be negotiated? It was not until Oct. 10 that the engineering and construction company publicly announced that it had “been advised” that a negotiation was off the table. In its recent management discussion and analysis it reiterates that the decision arrived in October.
At which point did WilsonRaybould issue a cease-anddesist order?
In her testimony, she said she told Morneau on Sept. 19 that “engagements from his office to mine on SNC had to stop.” Does that mean that there were to be no further discussions on the matter? Or that it was inappropriate for Morneau’s staff to be sticking their noses in?
Where is the paper trail on all this? There followed, she said, an “apparent pause” in communications between Sept. 20 and Oct. 18. That’s a big chunk of time in a political interference story described as “consistent and sustained.”
One hopes that Gerald Butts, in addition to trying to take all the heat for his seemingly shambolic handling of the PMO, will be able to fill in some blanks here, as this break in the time line immediately predates SNC’s filing of a federal court application seeking to quash the no-deal decision.
And there remains this question: Were the communications prior to Sept. 20 improper? We do not know how the director of public prosecutions arrived at her decision.
I have written previously about the Corruption of Foreign Officials Act, and that a prosecutor must not consider the national economic interest when bribery has been alleged. But I have also written that the very similar case of RollsRoyce in the U.K. — allegations of grease payments in foreign lands across decades — nevertheless concluded with a deferred prosecution.
In the Canadian legislation, a prosecutor is free to consider any factor he/she deems relevant.
What could come into play here? Who knows? Little has been written about SNC’s nuclear division and the significant role it plays in decontamination, decommissioning and waste management.
Many observers have pointed out that SNC did not selfreport its misdeeds, and on that basis the company should be denied a DPA. But the legislation only encourages the self-reporting of wrong doing. Rolls-Royce didn’t self-report either.
I’m not here to defend SNCLavalin. But having watched Ms. Wilson-Raybould’s testimony a week ago, I was left with more questions than answers, beyond the observation that she was fortunate not to have to present her testimony in a court of law.
jenwells@thestar.ca