Justice Committee on Feb. 21st, 2019

[Michael Wernick]

Without watchdogs and transparency and a vigorous Parliament holding the executive to account, you're at risk.... I'll try to keep this short.

I occupy a position that has existed for almost 800 years: the King's councillors and advisers. That is exactly what the Privy Council oath is, to be a true and faithful adviser to Her Majesty. Some of you got to take that oath and some of you aspire to. It's important. Those are the 30 to 40 men and women who get to take decisions as a group in cabinet. It's everything that's wrapped around that, and their accountability to the legislature, that's the basic Westminster software of the country. It's not a book club thing. It's not theory. It's fundamental to how we govern ourselves as a free and democratic people. There are very many topics in there.

I think it's important when you get these episodes of high-octane politics—and they do happen and they're legitimate. I want to be very clear, partisan politics in a democracy is entirely appropriate; you should go at each other, hammer and tongs, to convince Canadians to send you back here. But when that debate starts to cause Canadians to lose faith in their institutions, I worry that we're on the slippery slope to what we see south of the border.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You mentioned the United Kingdom. If I have time later, maybe I'll ask you the question about the safeguards we have that the United Kingdom doesn't have, and how that may be causing things to play out there.

You mentioned the King's council, you mentioned the 800 years of history, you mentioned the impartial nature of the Privy Council Office. Can you share with us and with Canadians what structures, governance, safeguards are in place to make sure that the Privy Council Office is impartial and independent?

[Michael Wernick]

I commend anybody who's really interested in the topic to “Open and Accountable Government”, which is on the website, by the way. This is an old, analog paper copy of it, digital document. I just like to have it with me.

I wear three hats. Minister Lametti wears two; I wear three.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

And they are?

[Michael Wernick]

One is I am the deputy minister to the Prime Minister. I run a department of 900 souls who support the functions of the Prime Minister, and you're familiar with many of them, to make sure that all the jobs the Prime Minister has, and he probably has six or seven hats, are well supported. I'm a deputy minister, like any deputy minister.

I also am the secretary to cabinet, and that's the role you would have seen in any Tudor-era movie of somebody taking notes while the King's council met. Part of that is to support and record the business of cabinet and to protect the confidence of those conversations. Cabinet only works when those conversations are kept confidential. Cabinet confidence is a really important thing. Otherwise, those men and women would not feel free to express themselves, to argue, to disagree, and you would not get the best possible outcomes for Canadians. I am, institutionally, the guardian of cabinet confidence. I get to rule on disclosure of documents. I protect the confidences of all previous governments, so that you don't demand, with your majority on the committee, the discussions that took place in the Harper government, and the Harper government didn't demand all the discussions of the Martin government, and so on.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Right.

[Michael Wernick]

You know you can speak freely in the cabinet room because it goes in the vault—literally, in the vault—of confidences.

There are situations where they should be disclosed. I know that some of you followed the Norman trial very closely. I made a decision, of my own volition, with my own authority, that the easiest way to deal with the Norman matter was to let the judge decide what was relevant. I did that last October. That is an exception and an anomaly, but that's an example of our role.

I have a very statutory role under the Evidence Act with regard to cabinet confidence.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much. I suspect you'll see the website traffic tick up today.

[The Chair, Liberal, Anthony Housefather]

More people are interested in PCO than ever before.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Wernick, for referring to what you called, I think properly, the “precious gift” of an independent prosecutorial service.

We had a final decision by that prosecutorial service. That was on September 4, and then, on September 17, at a meeting that you told us was primarily about indigenous issues, the Prime Minister and the minister talked about SNC-Lavalin. On December 5, there was a meeting with Gerry Butts and the former attorney general as well. That we know.

Now, during that period, there were literally dozens of meetings—you've told us about some of them—that SNC-Lavalin had with people in the Prime Minister's Office and the like. My question is this. With all of that repeated lobbying of the Prime Minister's senior staff, its only purpose could have been to go over the Attorney General's head and influence the decision that she previously refused to make, that the company had asked her to make.

This is what Andrew Roman, a prominent Toronto lawyer, concluded:

There was no valid reason for either the Prime Minister or his senior staff to have initiated such a conversation with Jody Wilson-Raybould. The only reason for either of them to discuss her prosecutorial decision would be to encourage her to change it, without being seen to do so. This is damaging to the rule of law.

What do you say?

[Michael Wernick]

I don't agree with that. I don't agree with the premise or the conclusion.

[Murray Rankin, NDP, Victoria, BC]

Can you elaborate why?

[Michael Wernick]

Because there are appropriate conversations to have with the Attorney General in this kind of matter, and that is exactly the Shawcross line, and I think you will have to come to a view as to whether the Shawcross line was crossed or not.

[Murray Rankin, NDP, Victoria, BC]

I personally agree entirely with your conclusion; that is, there is a line and it's inappropriate to direct, we've heard, and that's why we first had the Prime Minister using that very careful lawyer's language.

It's also inappropriate to pressure. You've said that you didn't think there was any pressure. It would appear to most people that our former attorney general certainly felt that pressure coming from someone, and it may not have been the Prime Minister but it could have been.... Often people get others to do that, and that could properly have been people in the PMO with whom SNC-Lavalin met dozens of times. Don't the dots connect or at least can't we reasonably infer that they connect in that fashion?

[Michael Wernick]

The question that I think you're going to have to come to a view with, as will the Ethics Commissioner, is inappropriate pressure.

[Murray Rankin, NDP, Victoria, BC]

Right.

[Michael Wernick]

There's pressure to get it right on every decision: to approve, to not approve, to act, to not act. I am quite sure the minister felt pressure to get it right. Part of my conversation with her on December 19 was conveying context that there were a lot of people worried about what would happen—the consequences not for her, the consequences for the workers and the communities and the suppliers.

[Murray Rankin, NDP, Victoria, BC]

Why would she have said in her letter to Canadians, this unprecedented letter when she was removed as Attorney General, that there's a need to have an independent Attorney General function and then make similar comments in just this last couple of days? How can I but infer that she must have felt that pressure, inappropriate pressure, over-the-line Shawcross principle pressure? How can we infer anything else from that?

[Michael Wernick]

I think you should ask her directly.

[Murray Rankin, NDP, Victoria, BC]

We intend to if we're allowed to have her speak her truth, and after hearing the Attorney General today, we're not yet confident that's going to be allowed.

[Michael Wernick]

It will be up to the minister how she chooses to respond to your questions.

[Murray Rankin, NDP, Victoria, BC]

Subject, she says, to solicitor-client privilege, which you've said may not even apply.

[Michael Wernick]

As she sees it.

[Murray Rankin, NDP, Victoria, BC]

As she sees it.

[Michael Wernick]

Yes.