Evidence of meeting #105 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was investigation.
A recording is available from Parliament.
February 27th, 2024 / 12:35 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Okay. I'll read out a couple of components. The actus reus of the offence of obstructing justice is that the act has the tendency “to defeat or obstruct the course of justice.” The mens rea is a specific, deliberate intent to do the act that would result in the obstruction of justice. Success is not necessary. “The offence is made out even if the accused fails to succeed or fails to complete the attempt to commit the offence.” Pursuant to another decision, Regina v. Watson from the Ontario Superior Court, it is no defence that the actions were an error in judgment or a mistake.
With the evidence that you did receive, which largely consisted of the ethics committee report and the testimony of Jody Wilson-Raybould, was there an impediment of the actus reus or the mens rea to obstruction of justice?
S/Sgt Frédéric Pincince
I would have to say that when we conducted the review, the mens rea portion of it was part of the main focus of our review.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Okay. Thank you.
I left off my first round essentially talking about the evidence we heard from Jody Wilson-Raybould that this wasn't a one-off and that over the course of four months, no fewer than 11 different officials, from the Prime Minister on down, in a series of meetings, memos and telephone conversations, attempted by means of varying degrees of subtlety to change the AG's mind. Explicit political considerations were raised, as well as the impact of SNC-Lavalin's conviction in job loss and company relocation, which was later proved to be a lie, and upcoming elections, both provincially and federally. This, at all times, was Justin Trudeau's problem.
We also have recorded evidence—not just a he-said-she-said but recorded evidence—between Jody Wilson-Raybould and the Clerk of the Privy Council. I am quoting here from Michael Wernick, that the Prime Minister is “quite determined, quite firm” on this—he said that four times—and “wants to know why the DPA route...isn't being used”; he's going to “find a way to get it done one way or another”; “he is in that kinda mood”; and “this is really important to him.”
If that doesn't cry out for a specific intent, I don't know what does. What do you say about that?
S/Sgt Frédéric Pincince
What I have to say is that when we looked at the specifics, and I'm referring to the quotes that were just mentioned here, of course in the assessment we did assess these comments that were made, but again, we had to take a more global approach when we looked at all the comments that were made. Of course, our determination vis-à-vis the mens rea portion is based not only on some of the comments but also on the totality of the evidence and the totality of the statements that were made.
Conservative
Larry Brock Conservative Brantford—Brant, ON
The totality is that the Prime Minister made it his personal mission to interfere in the criminal prosecution for his own political needs and the needs of SNC-Lavalin. Do you agree or disagree with that statement?
S/Sgt Frédéric Pincince
From the assessment that we conducted, again, our conclusions were that there was insufficient evidence to substantiate an offence.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Do you understand why Canadians feel that there's two-tiered justice here in Canada? The Prime Minister is immune to prosecution because he can hide behind cabinet confidences. He can commit a litany of criminal offences and just say, sorry, cabinet confidence; I'm not going to allow the RCMP to investigate.
Do you understand their concerns, sir? Do you understand Canadians' concerns?
S/Sgt Frédéric Pincince
Yes, Mr. Chair.
With regard to this, we're talking about ethics and criminality here, which sometimes seem to be intertwined. Again, as I indicated earlier, we have to follow the parameters as laid out in the Criminal Code.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Pincince and Mr. Brock.
Mr. Housefather, you have five minutes. Go ahead.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you, Mr. Chair.
My colleagues Mr. Cooper and Mr. Brock are both excellent attorneys, and they covered some matters that I would like to revisit.
Mr. Cooper was trying to make the point that the Prime Minister himself was somehow involved in the decision by the Privy Council Office not to allow the RCMP request for certain documents that you had asked for from witnesses.
I refer back to the assessment report, which stated in section 211:
On June 13, 2019, Mr. Shugart declined the Commissioner's request for access to all Cabinet confidences in respect of his examination. As reported by Mr. Trudeau's legal counsel, the decision on whether to expand the waiver was made by the PCO without the involvement of the Prime Minister or his office. Beside this limitation, the Commissioner felt that there was sufficient information available to reach a conclusion on the matter.
Do you have any reason to dispute what you declared in section 211, that the decision was made by the Privy Council Office without the involvement of the Prime Minister or his office?
S/Sgt Frédéric Pincince
We have no information as to who had partaken in the decision-making process.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Perfect. So nobody else would have that knowledge, other than the people involved. To your best knowledge, when they're saying this, would that be correct?
Liberal
Anthony Housefather Liberal Mount Royal, QC
We're talking now about this double standard. Here, you were not asking a court to require the production of documents. You were asking for a voluntary disclosure of documents. Is that correct?
Liberal
Anthony Housefather Liberal Mount Royal, QC
While we're talking about double standards, is it that every investigation that you do has witnesses who offer documents without a requirement for a production order—you ask them to deliver, and they always do it—and this is different?
S/Sgt Frédéric Pincince
There are situations where witnesses do provide information, but it varies.
Liberal
Anthony Housefather Liberal Mount Royal, QC
It's not always happening. There are many times when people decline to provide documents. Is that right?
Liberal
Anthony Housefather Liberal Mount Royal, QC
In the event that the RCMP had determined that it wished to proceed down the road of an investigation and you did have enough evidence to substantiate the disclosure of further documents, you could have gone to court to seek the production of these additional documents, as well. Is that correct?
Liberal
Anthony Housefather Liberal Mount Royal, QC
I'm now coming to Mr. Brock's comments related to the analysis. In section 240 and following in the assessment report, you've done a very detailed assessment of all the evidence, holistically, and come to the conclusion that there was insufficient evidence to go forward with further attempts to produce documents or a criminal prosecution. Is that correct?