A few months ago I suggested that the then Justice Minister, Jody Wilson-Raybould, should step up, in the case of Vice Admiral Mark Norman, and defend the principle of cabinet government, which, as Professor Philippe Lagassé of Carleton University, who is an expert on our parliamentary system, explains is a powerful “constitutional convention of collective ministerial responsibility, which requires ministers to uphold and publicly support all cabinet decisions, and … [is accompanied by] … principle of cabinet confidentiality, wherein ministers keep secret all conversations and materials connected with a cabinet decision.“
I said that “Many of the documents that Ms Marie Henein, Admiral Norman’s lead lawyer, wants the government to release are, in fact, of a nature that requires that they remain strictly confidential because the very nature of cabinet government depends upon public servants being able to provide the cabinet with frank, factual information, some of which, if released, even in a serious court case, might be very damaging to … the national interest.” That means, I said, and I still believe, that cabinet confidences can only be revealed in the most extraordinary circumstance and I did not, still do not, believe that even something as important as a fair trial rises to that standard.
That being stated, I think that every Canadian is entitled to justice in our courts and if they cannot receive a fully fair trial ~ because, for example, the government cannot release, not even to a judge, all the information the defence needs to make its case ~ then it is the duty of the Crown to withdraw the charges. A person who cannot mount a fair defence must be declared to be not guilty, no matter how strong the evidence might be.
I said, specifically, that, “Ms Wilson-Raybould should also tell Canadians that Minister Brison was quite correct to say that the leak of cabinet confidences makes it difficult for government to do its job properly … [and she should] … that Mark Norman was wrongfully or, at least, very prematurely accused, and was, then, wrongfully dismissed from his post as Vice Chief of the Defence Staff and he cannot now receive a fair trial and must be presumed to have been wrongfully charged, too … [I went on to say that after withdrawing the criminal charges the government should] … offer a generous financial settlement to Admiral Norman ~ certainly several million dollars ~ to compensate him for the damage done to his reputation and to his future prospects.“
I still believe that is good moral and political advice, but, like Gerald Butts, Justin Trudeau and Michael Wernick, I’m not a lawyer, so it may be lousy legal advice.
But, if one believes, as I do, that cabinet confidences, and a privy councillor’s sworn oath to safeguard them, matter in the criminal trial of VAdm Norman, then one must, it seems to me, believe, as I also do, that neither Dr Jane Philpott nor Ms Jody Wilson-Raybould should be encouraged to violate cabinet confidentiality, on their own accord, in order for the “truth” to come out.
The notion, being floated by some Liberals, that Dr Philpott and Ms Wilson-Raybould can simply rise in the House of Commons and speak, using their parliamentary privilege as a shield, is rubbish and an insult to our intelligence. Even shop-worn (and allegedly corrupt (remember strippergate in 2004 and improper living expenses in 2010?)) Liberal hacks like Judy Sgro should be ashamed to suggest it. That nonsense is thoroughly debunked by Professor James B Kelly (Concordia University) in his very informative blog.
But, the truth needs to come out, and we should all know, by now, that, as the Globe and Mail‘s John Ibbitson says, it does come out … “Always.“
So, how to square that circle? The truth must, and will come out, but Dr Philpott and Ms Wilson-Raybould must not, not least because their own deeply held senses of honesty and duty prevent it, violate important constitutional conventions to get it out. It seems to me that only the Liberal caucus can manage the task. They, at least a fair few of them, need to agree, amongst themselves, that r=their public duty, to Canadians, and the fate of their Party, over the mid to long term, is more important than the fate of Justin Trudeau or even of their own success in the forthcoming election. A leader needs to emerge, and there is always a pool of potentials …
… who will see beyond her or his own, personal interests and put the country first and who will inspire others to join in an effort to force the prime minister and the cabinet to waive a greater degree confidentiality and attorney-client privilege to permit a more in depth look at what was said and done to, by, for or about the former Attorney General and her duties. The waiver has to be broad enough to allow Canadians to understand what happened but not so broad as to encourage or allow opposition “fishing trips” into other areas.
Campbell Clark, writing in the Globe and Mail, says that, “it’s time for Mr. Trudeau to cross the Rubicon that he should have crossed a month ago. He should tell the country that Ms. Wilson-Raybould can reveal everything – and extend the waiver of solicitor-client privilege that he already issued to Ms. Wilson-Raybould so that it covers another 30 days, the period when she was veterans affairs minister. And then he should invite both former ministers to say their piece in the House of Commons.” I agree, but I’m not sure that just allowing them to speak in the House of Commons will settle the issue to anyone’s satisfaction. Therefore, I’m now going to
‘spit ball’ suggest a couple of ideas that may be well beyond my proper scope, but, ‘fools rush in’ and all that …
The matter may need to be discussed by an ad hoc parliamentary inquiry that can protect cabinet confidentiality while, at the same time, allowing parliamentary privilege (see Professor Lagassé (link above) again and Professor Kelly (also linked above) also again) ~ perhaps headed by an independent senator (Sen Frances Lankin, P.C. (the post nominal P.C. means Privy Councillor) comes to mind) and composed of members (government and opposition, equally) who are also privy councillors, although I suspect that would not allow for Independent (including e.g. BQ and Green) or NDP representation, although Senator Lankin was an Ontario NDP minister in the 1990s.
Perhaps a better idea is that it would not be at all unreasonable for the government to appoint a judge who is, also, a serving senator, e.g. one or more of Senators Pierre Dalphond, Murray Sinclair or Howard Weston, …
… all retired judges, and all members of the Independent Senators Group, to the privy council for the express purpose of heading the notional parliamentary inquiry. It would, equally, not be totally unreasonable for a prime minister whose political life is hanging by a thread to agree to appoint a couple of NDP members, from the (growing) list of those who are not seeking re-election in 2019, to the privy council, again for the express purpose of participating in an parliamentary inquiry that, I suggest, might be open only to sworn members of the Queen’s Privy Council for Canada.
Suffice to say that I am conflicted:
- I believe that cabinet confidentiality must be broken for only the most serious of reasons. I believe that the right of Vice Admiral Mark Norman to a fair trial is not sufficient; but since the right to a fair trial is also central to our political system the government should, in my opinion, withdraw all charges against him, apologize and compensate him, too. But the allegation, made by former ministers, of serious, perhaps even criminal wrongdoing by the prime minister and his inner circle in the exercise of their official responsibilities does, I think, rise to the standard where cabinet confidentiality might have to be sacrificed in order to preserve our democracy;
- It seems to me that Parliament, itself, is the right place to conduct a public inquiry into such a serious matter;
- It also seems to me that a suitable, ad hoc, parliamentary inquiry could be established within the rules, as I (very imperfectly) understand them; but
- I think that can only happen if the Liberal caucus, in parliament, decides that the good of the country outweighs the partisan, political needs of Prime Minister Justin Trudeau; and
- I suspect that will require something akin to a caucus revolt to force the issue, and that, I believe, will be a terribly difficult for Liberals, even those who sympathize the most with Dr Philpott and Ms Wilson-Raybould, to manage; it would cause many great and painful crises of conscience.
My idea would be a very high risk venture for the Liberal Party of Canada. A less than perfect outcome would see the demise of Justin Trudeau and, most likely, a resounding Liberal defeat in October. On the other hand, a good outcome, one that told Canadians that no laws had been broken and no unreasonable political actions had taken place, would almost guarantee a landslide Liberal victory in 2019 and Justin Trudeau would look both honest and brave for allowing everything to be aired in public.