Crossing lines?

There was considerable reaction to the testimony of Michael Wernick, the Clerk of the Privy Council, Canada’s top civil servant, and, arguably, one of the most powerful people in all of government, when, last week, he addressed the SNC-Lavalin/Jody Wilson Raybould affair. Some people felt that he crossed some important lines.

David Akin, for example, writing for Global News, said that “The Clerk of the Privy Council emerged Thursday from the shadows of the federal bureaucracy he leads to spend more than 90 minutes setting out the clearest account yet of how Jody Wilson-Raybould, while she was attorney general and justice minister, was subjected to all kinds of incredible pressure as she considered how to handle a criminal court case involving a Montreal engineering giant that employs more than 9,000 people … [and] … The testimony Michael Wernick gave to the House of Commons Committee on Justice and Human Rights was, at times, hysterical, absurd, fascinating, boastful, undeniably partisan and most welcome for finally putting some facts on the record where, until now, there had been only so many anonymous whispers.

He went on to say that “this head of the non-partisan, independent civil service would act like a partisan stung that his heroes were not getting the deference he felt they deserved … [but, he added] … for all the bizarro qualities of Wernick’s testimony, he provided some tremendously helpful details on the central issue: was there inappropriate pressure on the solicitor general? If so, how did that pressure manifest itself? … [because] … We have it on the record now that, on Sept. 17, Wilson-Raybould did, in fact, meet with Trudeau and Wernick, two weeks after the Director of Public Prosecutions (DPP) had decided SNC-Lavalin would be ineligible for a remediation agreement as part of a deferred prosecution agreement, thus putting in jeopardy SNC-Lavalin’s access to billions of dollars in federal government contracts.” Mr Akin goes on to enumerate some of the now confirmed details of the “pressure,” which looks, increasingly, to me, to have been highly improper and a serious violation of the Shawcross Doctrine.

Over in the Globe and Mail, John Ibbitson says that “Michael Wernick, in a remarkably partisan display for someone who is supposed to be a neutral public servant, tried to make the case for the Trudeau government’s defence in the SNC-Lavalin affair, Thursday. Instead, he may have sealed the case for the prosecution … [because] … The Clerk of the Privy Council wanted to prove that Jody Wilson-Raybould was wrong to claim she was pressed to override the prosecution of the Quebec-based engineering giant when she was attorney-general … [but] … Instead, in blunt, sometimes confrontational, testimony before the House of Commons justice committee, Mr. Wernick confirmed most of what The Globe and Mail had previously reported, and in seeking to prove no pressure had been applied, appeared to prove instead that plenty of pressure had been applied.

Mr Ibbitson explains that “Last September, the director of the Office of Public Prosecutions decided to proceed with corruption charges against SNC-Lavalin, despite relentless lobbying by the company, which sought a deferred-prosecution agreement that would effectively have let the company off the criminal hook. Only the attorney-general could override the director’s decision … [and] … Mr. Wernick confirmed that Prime Minister Justin Trudeau had discussed the matter with Ms. Wilson-Raybould after the decision to lay charges had already been made … [this, alone, seems to me to have crossed the Shawcross Doctrine lines, but] … The Prime Minister’s advisers also discussed the matter with her and her staff. And on Dec. 19, in a phone call with the then-attorney-general, Mr. Wernick raised the issue himself … [but] … In all of those conversations, “there was no inappropriate pressure put on the minister at any time,” Mr. Wernick insisted.” John Ibbitson and I are both incredulous.

In fairness, some observers, including some highly respected academics, have pointed out that Mr Wernick has something of a reputation for speaking out, fulsomely, in favour of the elected politicians, Conservative and Liberal alike, he has served in a long and distinguished career, and the sort of vigorous debate and robust discussions that took place ~ and no-one, now, seems to deny that they did ~ are par for the course amongst politicians, none of whom are shrinking violets, after all, and all of who have strong opinions on a range of issues. In the end, some observers says, and one must agree, Ms Wilson-Raybould took note of the strongly held views of her boss and his staff and she still stuck with her original decision ~ the one which was hers, alone, to make ~ and so the system worked. Yes, soon after she was demoted  from her top tier cabinet portfolio to one which is, to be charitable, down in the third tier, it looks a lot like the revenge of a petty dictator, but that, too, is par for the political course: the prime minister giveth and the prime minister taketh away, and (s)he needn’t explain himself or herself to you, me or the media.

If that was all there was then I might be tempted to call in even and to accept that Mr Wernick, while, perhaps, as David Akin said, “hysterical, absurd, fascinating, boastful … [and] … undeniably partisan,” just gave us the facts. But, then, in no particular order, I saw:

  • In MacLean’s, Andrew MacDougall, a well known Conservative insider, says thatIf the dribs and drabs of information appearing on the front pages of The Globe and Mail over recent weeks turns out to be accurate foreshadowing, Trudeau might not be able to survive Wilson-Raybould’s truth, let alone handle it … [because] … As “did not direct” Wilson-Raybould has morphed into a “vigorous debate” on the question, and then to an admission of “pressure” from the Clerk of the Privy Council, but of the “lawful advocacy” kind, not the ‘do as you’re told’ vintage, Team Trudeau has, to date, succeeded only in lighting itself on fire when it comes to SNC-Lavalin. Now it’s time to see if Wilson-Raybould rocks up to committee with the final keg of kerosene … [and] … If you’re Trudeau, it’s hard to envision an appearance in which Wilson-Raybould doesn’t burn everything—Trudeau included—to the ground.  There has been some serious red-on-red action on the nation’s front pages in the past few days, and only one side can survive.” He goes on to say that “The one meeting we still don’t know much about is the one that might hold the key—and produce the most fireworks at Wilson-Raybould’s testimony: the Dec. 18 meeting between the PMO’s Gerry Butts and Katie Telford and Jessica Prince, Wilson-Raybould’s Chief of Staff. Wernick mentioned it briefly, but the PMO didn’t offer up any information on the substance of their conversation when media outlets started asking questions about it. But if their chat wasn’t about SNC, it stands to reason the PMO would have said so in order to shut down another unwanted avenue of inquiry.” In seems that the other key member of Team Trudeau, Ms Telford, may also be involved. How many, one wonders, will Justin Trudeau need to throw under the bus to save himself and SNC-Lavalin? And one must ask: just how much is SNC-Lavalin worth to the Liberals, or how much hold does it have on Prime Minister Trudeau?
  • Robert Fife and Steven Chase say the much the same thing in the Globe and Mail: “Two of Prime Minister Justin Trudeau’s top aides were at a key meeting in late December with former justice minister Jody Wilson-Raybould’s chief of staff where the SNC-Lavalin criminal prosecution was discussed … [and] … The Prime Minister’s Office confirmed on Saturday that Chief of Staff Katie Telford and Gerald Butts, the then-principal secretary, met on December 18 with Jessica Prince, who was Ms. Wilson-Raybould’s chief of staff at the time.” They also say that “Mr. Wernick confirmed for the House Justice Committee Thursday that Ms. Wilson-Raybould was unwilling to negotiate an out-of-court settlement with SNC-Lavalin despite repeated efforts by Mr. Trudeau and other senior officials to revisit the company’s pending criminal prosecution on fraud and corruption charges … [and] … The Clerk’s testimony revealed that officials repeatedly raised the economic ramifications of an SNC conviction — despite the fact that the law prevents the attorney-general from considering that factor in this particular case — but was not subjected to “inappropriate pressure” to shelve the prosecution of the Quebec engineering company. Under Canada’s new deferred-prosecution agreement rules, prosecutors are not allowed to consider national economic interests when deciding whether to settle with a company that faces charges under the Corruption of Foreign Public Officials Act;”
  • Daniel Leblanc and Robert Fife, also, again, in the Globe and Mail, say that “Jody Wilson-Raybould tried to limit the role of the Prime Minister’s Office in the judicial appointment process, sources have told The Globe and Mail, adding to an already tense standoff between the then-justice minister and Justin Trudeau’s inner circle over the prosecution of engineering giant SNC-Lavalin … [and] … After being named justice minister in 2015, Ms. Wilson-Raybould set about depoliticizing the way judges are appointed in Canada, giving greater independence to the seven-member screening committees, which rank candidates based on an extensive new questionnaire. Her judicial adviser until February of last year, Katie Black, said she was hired to bring a non-partisan point of view to the appointment process.” They report that “other sources said the PMO took exception to Ms. Wilson-Raybould’s decision to restrict the amount of information that was shared within the government on the various lawyers looking for a position on the bench. A specific point of contention was whether the PMO should have access to the confidential assessment of candidates provided by sitting judges, including the chief justices of the courts with vacancies to fill, the sources said … [and, further] … The internal debate over judicial appointments contributed to the fraught relationship between the PMO and Ms. Wilson-Raybould, who was shuffled to the Department of Veterans Affairs in early January. She resigned from her new position on Feb. 12 in the midst a growing furor over whether the PMO put pressure on her to reach an out-of-court settlement with SNC-Lavalin, which is facing bribery and fraud charges related to its efforts to secure government contracts in Libya;”
  • In the Toronto Sun, Anthony Furey reports that “A leading democracy watchdog is filing an ethics complaint against Prime Minister Justin Trudeau in relation to the SNC-Lavalin fiasco, the Sun has learned … [Mr Furey says that] … Democracy Watch, a Canadian advocacy group, believes Trudeau broke two sections of the Conflict of Interest Act by failing to abstain from a vote held last week in the House of Commons over whether or not to hold a public inquiry into the growing scandal. The Liberals defeated the motion with 159 against and 133 in favour … [and] … “Jody Wilson-Raybould did the right thing by abstaining,” Duff Conacher, co-founder of Democracy Watch and adjunct professor of law and politics at the University of Ottawa, told the Sun. “Democracy Watch will soon file a complaint with the Ethics Commissioner about Trudeau’s vote” … [that means that] … If Ethics Commissioner Mario Dion takes on the case, this would be in addition to the investigation he is already undertaking in response to complaints by the NDP about the broader concerns around political interference in the prosecution of SNC-Lavalin;” and
  • Again in the Globe and Mail, and again Steven Chase, Robert Fife and Sean Fine report that “The Trudeau government is considering changes to ethical procurement rules that stipulate how long a company can be banned from bidding on federal contracts, a revision of policy that one expert says could offer Montreal-based SNC-Lavalin another means of coping with the fraud and corruption charges it faces … [because] … SNC-Lavalin, the Quebec engineering giant at the centre of the Wilson-Raybould affair, faces the charges stemming from an RCMP investigation into its business dealings in Libya. If convicted, it could be banned from bidding on federal contracts for 10 years … [but] … Public Services and Procurement Canada is proposing granting itself more flexibility in deciding how long a company is banned from bidding when convicted … [and] … SNC-Lavalin has been seeking a negotiated settlement in which a company admits wrongdoing and pays a fine, but avoids a trial. Last September, however, the federal director of public prosecutions rejected the request and informed the company the prosecution would continue … [thus] … Even if SNC-Lavalin is convicted, a rewrite underway at Public Services could eliminate a one-size-fits-all punishment period for companies found guilty of offences that run afoul of the federal Integrity Regime. This is a set of rules to address how to treat companies convicted of offences such as corruption, bribery, bid-rigging and money laundering, rules that have evolved over the past decade to ensure Canada “does business only with ethical suppliers,” according to Public Services’ website … [and] … These proposed new rules say the Registrar of Ineligibility and Suspension at Public Services will decide what length of suspension applies, taking into account “the seriousness of the conduct … balanced against the steps taken by the [company] to ensure that similar conduct does not recur.” Other factors to be considered include the extent to which senior management at the company were involved in the offences for which the firm was convicted; whether the company is a repeat offender; the steps the firm has taken to address the wrongdoing; and whether it has implemented remedial measures.

In other words, the campaign to save SNC-Lavalin from the consequences of proven corrupt business practices, in the past, to be sure, goes on, and is seems that the Trudeau regime will risk everything and everyone to save one firm. Also, Ms Wilson-Raybould may have more grievances than have yet been made public. She was a well known advocate for First Nations and seems to have clashed with Dr Caroline Bennett in cabinet on indigenous issues, but she may, also, have been trying to do the Attorney General’s job as Lord Shawcross intended: independently; and that may have been the cause of her demotion and resignation and it may be why she may wish to explode a bomb under Justin Trudeau and under the Québec wing of the Liberal Party of Canada.

Ms Wilson-RaybouldI’s appearance has been delayed, but, the Globe and Mail reports, Prime Minister Trudeau has, finally, waived at least some of the solicitor-client privilege issues that might have kept her silent. It will be fascinating to watch her testimony and the consequences for Justin Trudeau’s political future. I cannot believe that there are not a few Liberals who are getting ready to abandon ship or even mutiny. As a friend of mine put it: in Australia the prime minister would already be long gone after a caucus revolt.

Did Michael Wernick cross the lines between being an apolitical bureaucrat and a political partisan? It’s hard to say … some of his remarks seemed very partisan but he is, after all, at the very centre of government and was engaged with a file which appears to have the highest priority for this ministry. Many observers say that Mr Wernick’s comments are very revealing and that the prime minister cannot, now, back away from the facts he laid out; facts which, if we accept them at face value, suggest that intense pressure was, indeed, applied to Jody Wilson-Raybould, and when she resisted it she was demoted. But what about Justin Trudeau? Has he crossed some lines, too? Is he putting the fate of one Québec company ahead of, say, Canada’s energy industry, and the livelihood of hundreds of thousands of Canadians?

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