Justice Committee on Feb. 21st, 2019

[Ali Ehsassi, Liberal, Willowdale, ON]

I think it was implied that there was something—

[Lisa Raitt, Conservative, Milton, ON]

Nobody on our side, Mr. Chair, has gone on the record saying anything about this letter. Indeed, we only just received it or even just learned about it.

[The Chair, Liberal, Anthony Housefather]

Exactly.

I think what he was referring to was that Mr. Rankin, before he had a copy of the letter, asked about something that wasn't in the letter, because Mr. Rankin had no copy of it. That's probably—

[Lisa Raitt, Conservative, Milton, ON]

That's correct. It's an innocent mistake, but I really don't like the partisan nature of the comment that was made by the honourable member.

[The Chair, Liberal, Anthony Housefather]

I appreciate that.

[Ali Ehsassi, Liberal, Willowdale, ON]

I think you've just admitted that a mistake was made, and I simply said it was implied.

[The Chair, Liberal, Anthony Housefather]

I'm going to put Mr. Ehsassi's time back on, and again, we're all trying to get answers out of the witness. That's what Canadians want to hear today.

Let's get back on to Mr. Ehsassi's time.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

As everyone here knows, you essentially sit on top of the machinery of government.

One of the things you did say is that, first of all, there are many safeguards in our system, but you also indicated that, if something improper does take place, it is both detected and corrected.

What did you mean by that?

[Michael Wernick]

I was alluding to many mechanisms that were created by Parliament to safeguard governance in Canada. I could go through a whole bunch of them. The Public Service Commission is a safeguard of merit-based hiring and staffing in the public service that frees us from patronage. There's the existence of the Parliamentary Budget Officer and the existence of the Auditor General.

There are nearly 14 officers and agents of Parliament holding the executive to account. There are transparency laws and access to information. There are open government policies. I could go on and on, but when you compare Canadian governance to that of any other country, I think Canadians should feel assured that they work in a democracy under the rule of law.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that. So, mechanisms do exist.

At some point in your remarks, you did suggest that looking at the structures around the director of public prosecutions, you think, in relevant terms, compared to other jurisdictions, that we have a really good system in place.

Could you elaborate on that? I think it's an important point, and it would be good for all of us to hear your observations.

[Michael Wernick]

Anybody who is following American politics these days, if you can stand it, will be seeing vigorous debates about the role of prosecutors, grand juries, law enforcement agencies and so on—it gets pretty complicated in the American system—and whether pressure was put on prosecutors, whether attorney generals were fired, who's doing what in the American system.

I think Canadians need to be assured that their police and investigators, with the powers of the state, operate independently, and that the prosecution service, the state charging people with offences, is completely independent. There is a legislative and statutory shield around that, which demonstrably is working in the issue that this committee is looking at.

The director of public prosecutions said in writing last week that there is not, in this case or any case, partisan or political interference in the prosecutorial function.

Given that three Canadians are languishing in Chinese jails because of arbitrary detention, it's really important to project to the world that Canada operates under the rule of law.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

There are 35 seconds left, Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

That's fine.

[The Chair, Liberal, Anthony Housefather]

Now we're going to the second round of questions.

This is six minutes to the Liberals, six to the Conservatives, six back to the Liberals, five to the Conservatives and three to the NDP.

We will start with Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

Thank you, Mr. Wernick. Your testimony today was very compelling. We appreciate your public service to this country.

You mentioned that you've been in public service for over 37 years. As a clerk, you must have seen—and I think you mentioned this as well—multiple governments come and go. You would have been privy to the way they conduct business amongst each other, as colleagues, as cabinet ministers, as prime ministers and PMO officials.

Can you please elaborate on whether it would be normal practice to have robust discussions both inside cabinet and amongst the prime minister, ministers, the prime minister's officials about the application of both policy and the law in situations that impact Canadians?

[Michael Wernick]

I think governments of any stripe are always concerned about the well-being of Canadians and what's going on. The potential loss of jobs and the impact on families and communities is always of interest. Those could be oil workers in Calgary, to take a topic from this week. It could be auto workers in Oshawa.

It could be anywhere in Canada. No government is indifferent to the economic progress of communities in the country. Job loss is something that all governments I've ever worked with worry about and pay attention to and monitor.

There is clearly, in the SNC-Lavalin matter, potential job loss and economic impact on workers, suppliers, pensioners and communities. This isn't a secret. It's in national newspaper advertising from the company. It is in the statements of two premiers of Quebec.

There are consequences for the decision to prosecute or not prosecute, to go to a remediation agreement or not. Every decision that a minister makes has consequences for other people. That's the point. The Attorney General is a particularly powerful position in the country, because you're the chief law officer and because you have these very specific powers with regard to the role of the state and how it deals with Canadians and Canadian businesses.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

To reiterate, you said that no matter what these discussions are, ultimately the decision is up to the prosecutor and to the Attorney General to make.

[Michael Wernick]

Certainly, in the case of the prosecutorial function....

I'll take a few seconds to say that I've worked very, very closely for three years, on almost a daily basis, with the current government, the current cabinet and the current Prime Minister's Office. In my observation and my experience, they have always, always conducted themselves to the highest standards of integrity. You may not like their politics or their policies or their tweets, but they have always been guided by trying to do the right thing, in their own view, the right way.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Earlier, you spoke about remediation agreements as tools.

I'm hoping you can help us understand a little. There's a misconception out there that remediation agreements may be a way to get off scot-free. Can you clarify for us what exactly they are? How are they a tool?

I'll ask a follow-up question after that.

[Michael Wernick]

I think you had better witnesses just before me to explain the details.

My understanding of it is that a deferred prosecution agreement is exactly what it says, that the prosecutor defers going through to trial and conviction in exchange for an agreement. The agreement is binding. It has compliance tools. It is court supervised and it can be revoked. It's essentially an alternative sentence or an alternative punishment deal. Much like when individuals are charged with crimes, there are restorative justice options.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Is it normal for the Prime Minister, for ministers, for the Attorney General to discuss the use of these types of tools in how they conduct their business?

[Michael Wernick]

The statute that created them only came into existence last year. It was debated in Parliament, and came into force in September 2018.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Are there other standards in other countries?

[Michael Wernick]

Its potential use, which was advocated by this particular company, would be the first time. There was a lively discussion about whether this instrument should come to Canada or not. You'll hear from other witnesses on that. It is a real dilemma for governments: should the workers, pensioners, suppliers and communities pay the price for corporate crime?

In communicating with Canadians in the election campaign, I think each of your parties can be very clear with Canadians whether you think that tool should stay in the box, be repealed, be amended or be improved. It is an attempt to solve that dilemma that innocent people should not pay for the offences of corporate officers.