National Post (National Edition)
EVIDENCE WILL LEAVE DOUBT IN THE MINDS OF CANADIANS.
Gerald Butts’ testimony at the justice committee did not present any exculpatory evidence that would exonerate the Trudeau government from allegations that it engaged in a pattern of interference in the independence of the attorney general.
But he may have placed doubt in the minds of the jury.
Justin Trudeau’s former principal secretary made clear he was not going to engage in a mudslinging contest with Jody WilsonRaybould over her testimony before the same committee last week. Instead, he gave a calm counter-argument to many of the points she raised.
However, his powers of persuasion were lacking when questions moved to exchanges between the former attorney general and members of the prime minister’s staff, and the clerk of the Privy Council — conversations in which Butts was not directly involved and about which he was reduced to offering robust character references.
“I am firmly convinced that nothing happened here beyond the normal operations of government,” he said.
Ye t when committee members raised WilsonRaybould’s allegations about PMO staffers Elder Marques and Mathieu Bouchard — that they suggested “an informal reach-out” to the director of public prosecutions and talked about “the need to get re-elected” — he could only say the idea that “accomplished lawyers with sterling reputations” might act that way was “inconceivable”.
Similarly, when NDP MP Charlie Angus raised the allegation that Michael Wernick, the clerk of the Privy Council, threatened WilsonRaybould, Butts said the accusation was “inconsistent with his character.”
(Wernick testified later in the day and denied he threatened the former attorney general. “I wasn’t wearing a wire but that is not my recollection of the way the conversation flowed,” he said, when it was suggested he warned Wilson-raybould not to get on the wrong side of the prime minister.)
Despite its shortcomings, Butts’ account was the first coherent counter-narrative to the one offered by WilsonRaybould that outlined an uncontrollable government machine running roughshod over prosecutorial independence.
Butts at least offered the impression of someone who believes Canadians deserve an explanation — in stark contrast to his former boss, who has offered little more than fragmented talking points.
He said that everyone working on the file knew the decision on whether to direct the director of public prosecutions to negotiate a remediation deal with SNC Lavalin was the attorney general’s to make.
“We respected the attorney general’s authority at all times and did our jobs with integrity at all times,” he said.
In one curious episode, Butts said he learned just last week in her testimony that Wilson-raybould made her final decision not to overrule the DPP on September 16 — even though in her testimony she said she told Trudeau she had made up her mind during their meeting on Sept. 17.
It seems inconceivable that this information was not passed on to Butts, but this blissful ignorance allowed him and others in the PMO to continue to urge Wilson-raybould to take another look at the file.
Butts pointed out that the attorney general has the power to direct the DPP at any time before a verdict is reached. In the absence of a written decision, Butts could claim that he was in the dark, even if it was clear everyone knew which way she was leaning.
There was obviously a concern in the PMO that Wilson-raybould had made a decision in haste and that she should consider a second opinion from an eminent jurist like former chief justice, Beverley Mclachlin.
Butts presented some grounds for sympathy with that conclusion.
Wilson-raybould was in Fiji when the director of public prosecutions decided not to pursue a remediation deal with SNC on Sept. 4. The department of Justice drafted an opinion on the powers of the attorney general to issue directives to the DPP on Sept. 8. Yet, as Nathalie Drouin, the deputy minister of Justice, testified on Wednesday, neither she nor her staff were privy to the evidence against SNC.
The PMO appears to have concluded that the attorney general did not base her refusal to intervene on sound reason, or the advice of her department.
The remediation provision was introduced into law to be used and the prime minister was apparently unconvinced that the conditions set out in the legislation had not been met.
As Wernick pointed out in his testimony, while WilsonRaybould said her decision was final in September, she had the ability, as new public interest considerations emerged, to re-examine her reasoning. “That is the most she was ever asked to do,” he said.
Many Canadian might find themselves sympathizing with the point of view emailed to me by a retired justice.
“The attorney general is not a law unto herself and has never been historically. If the conditions set out in a section 715.32 Criminal Code remediation agreement are met, and the factors set out in the section compelling, the attorney general should enter into the agreement. The government has a duty to the public to know why, if her refusal reasons are not justified in law,” said Roger Salhany, a former justice of the Ontario Superior Court.
The highest reaches of the Trudeau government were convinced of the need to seek outside counsel and Butts claims that not only was Wilson-raybould receptive to discussing the matter, she actually solicited meetings.
Butts said Wilson-raybould asked to meet him for dinner at the Château Laurier hotel, where the idea of asking a retired Supreme Court chief justice for advice was raised. She said bringing in someone from outside had never been done. Butts countered that remediation deals themselves were brand new to Canada, having passed into legislation earlier in the year. “My suggestion was that it is a legitimate public policy discussion to have in this circumstance,” he said. “We parted that meeting as friends and colleagues and exchanged personal text messages a couple of hours later.”
Butts said he understood that two people can experience the same event differently but that he did not consider the dinner as “pressure” in the way Wilson-raybould characterized it.
“When you boil this all down, the only thing we ever asked the attorney general to do was to get a second opinion. And we also made it clear that she was free to accept that opinion or not,” he said.
The other area where Butts provided an alternative narrative was the cabinet shuffle, which he said “had absolutely nothing to do with SNC Lavalin”.
He said if Scott Brison had not resigned as Treasury Board president, Wilson-raybould would still be justice minister. The prime minister had decided to move Indigenous services minister, Jane Philpott, to replace Brison and planned to shift Wilson-raybould into Philpott’s role “to send a strong signal that the work would keep going at the same pace”.
When Trudeau told the former attorney general of his plan, she said she was “a little bit shocked” at being moved from her “dream job”.
“I feel I’m being shifted out of Justice for other reasons,” Butts said she told the prime minister.
Wilson-raybould subsequently turned down the Indigenous services job, on the basis that she had spent her life opposing the Indian Act and could not be in charge of administering its programs.
Butts said he recommended Trudeau move Wilson-raybould from her old job in any case, because no prime minister could allow a minister to veto a cabinet shuffle by refusing to move. It was advice that was to have far-reaching consequences.
Ultimately, Butts was not convincing with his claim that Wilson-raybould’s demotion was unrelated to SNC. It seems eminently possible that Trudeau used Brison’s exit to remove a thorn from his side.
Ye t , thanks to Butts’ testimony, the near certainty in the minds of many Canadians that a parcel of rogues in the PMO were guilty of improper interference in the administration of justice may have been reduced to a mere nagging suspicion.