Information & Ethics Committee on March 19th, 2024

[Michael Wernick]

No. Parliament, over the years, created a number of watchdogs and investigative bodies to look at the enforcement of other laws. The ones that are relevant here, I think, are the Conflict of Interest and Ethics Commissioner, the Public Sector Integrity Commissioner and the Commissioner of Lobbying. Not every issue of ethics and behaviour rises to the standard of a breach in criminal law. I remind you that the Attorney General said, on more than one occasion, that she didn't think criminal activity had taken place.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

The questions directed towards you have been rather fierce, Mr. Wernick, about your time when you were a public servant. My experience with the public service is that it is non-partisan, that it is there to carry out the policy that Parliament.... We pass laws; the public service implements those laws.

My experience—and I just wonder if you could comment on this—is that your role was not to be partisan and to do, as Mr. Barrett just said, “Justin Trudeau's bidding”. Is that correct?

[Michael Wernick]

I was deputy minister to the Prime Minister, so I was there to support him in all of the roles that our Prime Minister plays. I've been before parliamentary committees of the House and Senate probably 30 times. This is the sixth time since I retired. I'm not intimidated or worried about helping Parliament do it's job.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I guess my question was whether the public service is partisan.

Most public servants serve through different political parties and are doing so in a very professional way, not being partisan. I'm thinking not just of the separation with the RCMP. I look at Correctional Service of Canada, where they carry out and follow policies put in place by the government, and they are doing it in a non-partisan way.

Is that an accurate description of our public service?

[Michael Wernick]

I think the line that you're trying to draw, which I agree with, is around partisan party politics—team blue, team red, team orange—and that is not the job of the public service. The public service is there to support, advise and implement the policies and programs of whoever has the confidence of the House of Commons at the time.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you.

I served on municipal council for five years. I appreciate that comparison with how decisions are made. It's very public. It's all done out in the open. There are very strict rules on when we can even go in camera. There are specific topics that we need to deal with. It's very different from cabinet.

Do you think most Canadians understand the whole concept of cabinet confidence? I ask because it's been portrayed very differently by the opposition as a way to keep secrets.

I just wonder what you think about that. Do Canadians actually understand the thinking behind what a cabinet confidence is and why it's in place?

[Michael Wernick]

As a matter generally, I would guess that Canadians are busy with their lives, their families and their communities, and they don't think about how government works, except in episodes where there is some conflict or some problem. Then they may pay attention for awhile, but then it fades away.

The issues that this committee has wrestled with around access to information and transparency are important. You could be drafting new transparency laws to shift the balance towards disclosure and so on. Parliament basically sets the overall balance points.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Damoff and Mr. Wernick.

Mr. Villemure, you have the floor for two and a half minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Mr. Wernick, I understand and agree that the public service must be impartial. You said earlier that you read the Ethics Commissioner's report. You know the findings. I would like your assessment of these findings as an impartial official.

[Michael Wernick]

I believe that everyone involved in this case—including the Prime Minister, individuals at the Prime Minister's Office, myself as clerk, the deputy minister of justice and policy advisors—tried to do their jobs as effectively as possible and in good faith.

[René Villemure, Bloc, Trois-Rivières, QC]

I remember the situation at the time. The same thing happened again recently. The Ethics Commissioner found that there had been an offence. However, the RCMP didn't say whether there had been an offence, and merely stated that it couldn't look into the matter. Understandably, this creates doubt.

I understand that something can conflict with the code of ethics without being criminal in nature. However, how can public confidence in the government be restored or strengthened? In these types of cases, which involve an apparent contradiction, people have their doubts.

[Michael Wernick]

Since then, Canadians have had the opportunity to have their say in two general elections. It's a form of accountability for Canadians. If you, as parliamentarians, aren't satisfied with the rules for transparency, you can change the legislation.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Villemure.

Mr. Green, for two and a half minutes, go ahead.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Wernick, on a couple of occasions you mentioned that it was five years ago, a long time. I think you stated that you're not a historian, but you are a professor and you are teaching governance.

What lessons do you teach your students about this whole affair?

[Michael Wernick]

I don't talk about this affair as a specific....

You can read my book on governance.

[Matthew Green, NDP, Hamilton Centre, ON]

I'm just going to tell you, from where I sit, that sounds supremely arrogant when I'm asking you a question in this committee. I'm not interested in buying your book, sir. I am interested in your answering the question. What lessons were learned from this whole affair?

If your suggestion is that you don't delve into this conversation at all in your class, that's fine, but to continue to say, “Check my resumé, check my LinkedIn, read my book, buy my book,” is not landing the way you think it probably is.

I'll ask you again what lessons you have learned from this affair, whether to students or to this committee for recommendations, because ultimately we have a responsibility to have some kind of report or recommendations coming back from this. Five years later, it's still a mess. It's still murky, and it still undermines the people's faith in the democratic institution here.

[Michael Wernick]

Parliament can change the laws, so I have two specific recommendations.

One is that the law that was drafted and implemented by this Parliament in 2018 about deferred prosecution agreements has some ambiguity in it in terms of the evaluation of economic interest, which was the subject of one of the conversations.

You should go in and reopen the law and take a look at the language on what can and cannot be used in considerations around the deferred prosecution agreement, because it will come up again some time in the future. There is a job that only you parliamentarians can do.

If you're not happy with the rules about disclosure of cabinet confidences to police forces or judges, change the law.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

It really wasn't that hard. I appreciate that answer.

Those are all of my questions.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Green.

Mr. Cooper, you have five minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Mr. Wernick, your telephone conversation with Jody Wilson-Raybould on December 19, 2018 was made at the request of Justin Trudeau. Is that correct?

[Michael Wernick]

I'm sorry. I didn't hear that.

[The Chair, Conservative, John Brassard]

Restate the question, please.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Your telephone conversation with Jody Wilson-Raybould on December 19, 2018 was made at the request of Justin Trudeau. Is that correct?

[Michael Wernick]

It was not specifically to call her, but my recollection of it—and you can read me back my testimony—is that he wanted to find out what her rationale was for not pursuing the DPA at the time.