Obscure, confuse and deny

Strategy was to focus on the irrelevant

More than once in the course of his testimony to the Commons justice committee Gerald Butts said that he was not there to call anyone names or to cast aspersions on the character of Jody Wilson-raybould.

Which is why the prime minister’s former principal secretary confined himself to depicting her as sloppy, closed-minded and uncooperative, while heavily implying the former minister of justice and attorney general of Canada was a serial fabulist who said nothing to anyone about attempts to interfere with her authority over criminal prosecutions until after she was shuffled out of her “dream job” in January. Otherwise he might have gotten really nasty.

And yet he offered little that contradicted what she had earlier told the committee — that she was pressured to overrule the decision of the director of public prosecutions to proceed with charges of fraud and corruption against SNCLavalin, rather than to offer it the remediation agreement it had sought.

To be sure, on the specific charge against him, that he had told her chief of staff in a meeting on Dec. 18 that “there’s no solution that doesn’t involve some interference,” he had “a very different recollection.” Variations on that theme were to be heard later from the clerk of the privy council, Michael Wernick, who had “no recollection” of a variety of statements attributed to him — that SNCLavalin would move its headquarters from Montreal if it did not get its way, or that something unfortunate might happen to her career if she kept crossing the prime minister.

But for the most part the strategy appeared to be unchanged: to blur important distinctions and focus on irrelevant questions; to confuse the obvious, that two people might have conflicting accounts of the same event, with the insane, that it neither happened nor did not happen; and otherwise to rely on the public’s hazy grasp of the legal principles involved to see them through.

The emphasis of Butts’s testimony was that the sustained and mounting pressure the former attorney general said she was under — from ministers, political staff, civil servants and the prime minister himself — was not really pressure at all. Or if it was, it was merely pressure to seek an outside legal opinion on the matter, perhaps from a former Supreme Court justice.

Various reasons were presented as to why this was justified. Wilson-raybould had taken only 12 days to arrive at her decision not to overrule the DPP. The law permitting prosecutors to negotiate remediation agreements was “new,” having only been passed (in response to years of lobbying by Snc-lavalin) earlier that year.

Decisions on prosecutions are never final, but must be constantly reassessed in light of fresh evidence. And, of course, those 9,000 SNCLavalin jobs that were supposedly at stake.

All of these may (or may not) be true. They’re just not anyone’s business but the attorney-general’s, and the DPP’S. It is not relevant, as a matter of law, what the prime minister, or Butts, or anyone else outside the attorney-general’s office, thinks about Wilson-raybould’s decision-making process, or the new law, or what fresh evidence there might be. Those are considerations exclusively for the DPP, or in exceptional circumstances, the attorney-general.

Just so, she was told: the decision was hers and hers alone to make. She was the “final decision-maker.” Only the decision was also “never final.” She could make it, that is, but she would have everyone from the prime minister on down coming back to her again and again — not because there was any fresh evidence, but just because they could — all the while implicitly questioning her judgment, in the sly form of that repeated suggestion that she seek an outside legal opinion.

This last is a distraction. The attorney-general has available to her all the legal advice she requires. The only point of demanding she seek a second opinion was because they did not like the first. In any case, whether to seek outside advice is, again, the attorney-general’s decision to make, in the same way as it is her choice whether to seek the advice of her colleagues — as opposed to the unsolicited advice that Butts, Wernick and others were pressing upon her.

Ah, but if she felt this was interference, Butts wondered aloud, why didn’t she tell anyone? If she had made up her mind, why didn’t she say anything?

According to her testimony, she did: to the prime minister, at their Sept. 17 meeting (“I told him that I had done my due diligence and made up my mind on SNC”); to the clerk, at the same meeting; to the finance minister on Sept. 19 (“I told him that engagements from his office to mine on SNC had to stop — that they were inappropriate”); to Mathieu Bouchard and Elder Marques, officials in the PMO, on Nov. 22 (“I said NO. My mind had been made up and they needed to stop — enough”); and to Butts himself, on Dec. 5 (“I needed everyone to stop talking to me about SNC as I had made up my mind and the engagements were inappropriate”).

Yet Butts told the committee he only learned that she considered her decision final during her testimony before the committee last week. Not only did he not recall her telling him, but neither the prime minister nor the clerk nor the finance minister nor the two PMO officials who reported to him breathed a word. Or was the problem, as he said at another point, that she did not tell the prime minister “in writing”?

Well, there’s one way to sort this out: subpoena all emails, texts and other communication on the subject between the players named. Sorry — the Liberal majority on the committee voted not to do so. OK, then invite Wilson-raybould back to testify, as Wernick was, and this time let her speak to the conversations surrounding her demotion from Justice — as Butts did at some length. No again, said the Liberal majority. Fine, well at least let’s hear from some of the other players, starting with Bouchard and Marques. They are as yet not on the witness list.

On the other hand, the prime minister is reported to be weighing whether to make a statement of contrition. I suppose that will have to suffice.