‘I really feel uncomfortable about ... this conversation’
This is an edited transcript of the phone call that then-attorney general Jody Wilson-Raybould secretly recorded with Michael Wernick, clerk of the Privy Council on Dec 19, 2018. The text is how it was presented to the Justice committee.
Clerk: Um...I am not calling you about litigation directive. I am calling about the other important one — the Deferred Prosecution thing/SNC and so one — I wanted to pass on where the PM is at... so our intelligence from various sources is that company is getting to serious point now... the board has asked consulting firms for options for the board for their next which could be selling out to somebody else, moving...you know, various things. JWR: yep. C: So it seems to be real and not a bluff. Um, there is another rising anxiety as you can imagine about a signature firm and job loss and all that coming after the Oshawa thing and what is going on in Calgary and what not. So the PM wants to be able to say that he has tried everything he can within legitimate toolbox to try to head that off. So he is quite determined, quite firm but he wants to know why the DPA route which Parliament provided for isn’t being used. And I think he is gonna find a way to get it done one way or another. So, he is in that kinda mood and I wanted you to be aware of that. JWR: ok C: So, um, I don’t know if he is going to call you directly — he might — um and he is willing — I think he is thinking about getting somebody else to give him some advice...you know he does not want to do anything outside the box of what is legal or proper — um...but his understanding is — you know — the DPA tool is there and you have options that we talked about before to ask for reason from the DPP or even take over the prosecution. He just wants to understand more at this point of why the DPA route is not taken up on this route. So he is thinking on bringing someone in like Bev McLachlin to give him advice on this or to give you advice on this if you want to feel more uncomfortable you are not doing anything inappropriate or outside the frame of... JWR: I am 100 percent confident that I am doing nothing inappropriate. C: Ya, no but would not be if you decided to use some of these tools under the law... cause I think he feels that the government has to have done everything that I can before we lose 9000 jobs...and a signature Canadian firm. JWR: Right so — um — I again am confident in where I am at on my views on SNC and the DPA haven’t changed — this is a constitutional principle of prosecutorial independence that Michael — I have to say including this conversation and previous conversations that I have had with Prime Minister and many other people around it — it is entirely inappropriate and it is political interference. And I...the Prime Minister obviously can talk to whomever he wants — but what I am trying to do is to protect him. I could have a conversation with Beverley McLachlin...I can call her right now...um...I am just — um — issuing the strongest warning I can possibly issue that decisions that are made by the independent prosecutor are their decisions. We gave her, and them, the tools — the additional tools — I made it very clear at the cabinet table and other places that these tools are at the discretion of the prosecutor — and everybody agreed to that and that there was no guarantee that there would be a DPA in this or any other case. So we are treading on dangerous ground here — and I am going to issue my stern warning — um — because I cannot act in a manner and the prosecution cannot act in a manner that is not objective, that isn’t independent, I cannot act in a partisan way and I cannot be politically motivated. All of this screams of that. So I am actually uncomfortable having this conversation but I am happy to talk to you. I will call Beverley McLachlin...I cannot even imagine her feeling in any way, shape or form comfortable interfering with the independent prosecutor. C: Ok but I think that is where people are talking past each other. I mean I think the view that he has formed — I share — I am not the lawyer in any of these conversations — and Elder and others is — um — it is not interference — the statute specifically has these other provisions in it that allow you to ask questions of the DPP and that is provided for and that is not interference...
Wilson-Raybould says she understands about jobs.
JWR: I hear you on the jobs and wanting to save jobs — I mean we all want to do that — this goes far beyond saving jobs — this is about the integrity of the Prime Minister and interference — there is no way that anybody would interpret this other than interference — if I was to step in. It does not matter how I would look in doing that — I would be a mockery — and that is not the problem — the bigger problem is what it would look like down the road for the government. It is not about jobs — and I know that jobs are important so I do not want anybody to misinterpret that I don’t care about those jobs — this is about the integrity of the government and recognizing that there is the ability to issue a directive under the act...um...it is still irrespective of the ability that I have to do that — 1. it has never been done before but 2. this is going to look like nothing but political interference by the Prime Minister, by you, by everybody else that has been involved in this politically pressuring me to do this. C: Well...um... Wilson-Raybould repeats her concern over the call. JWR: I am surprised that you and I are having this conversation but I am just saying that I really feel uncomfortable about the appropriateness of this conversation. C: Ok I understand that — but I mean I think his view is that his is not asking you to do anything inappropriate or interfere. He is asking you to use all the tools that you lawfully have at your disposal...um. JWR: I know I have a tool under the prosecution Act that I can use. I do not believe it is appropriate to use tool in this case. C: ok alright .,. that is clear — um — well his is in a very firm mood about this so um .... JWR: Does he understand the gravity of what this potentially could mean — this is not about saving jobs — this is about interfering with one of our fundamental institutions — this is like breaching a constitutional principle of prosecutorial independence. C: Well I don’t think he sees it as that... JWR: No one is explaining that to him Michael.
Wernick talks about the prime minister’s mood.
C: Alright...um...well I am going to have to report back before he leaves...he is in a pretty firm frame of mind about this so...I am a bit worried... JWR: Bit worried about what? C: Well...it is not a good idea for the Prime Minister and his Attorney General to be at loggerheads. JWR: Well I feel that I am giving him my best advice and if he does not accept that advice then it is his prerogative to do what he wants... But I am trying to protect the Prime Minister from political interference or perceived political interference or otherwise. C: Alright, I understand that... but he does not have the power to do what he wants... all the tools are in your hands so... JWR: ... Ok so then...so I am having thoughts of the Saturday Night Massacre here Michael to be honest with you and this is not a great place for me to be in — I do not relish this place — but what I am confident of is that I have given the Prime Minister my best advice to protect him and to protect the constitutional principle of prosecutorial independence. C: Ok...alright but...I am worried about a collision then because he is pretty firm about this...I just saw him a few hours ago and this is really important to him.
Wilson-Raybould ends the call.
JWR: I am waiting for big...the other shoe to drop. so I am not under any illusion how the Prime Minister has and gets things that he wants...I am just stuck doing the best job that I can...