Justice Committee on Feb. 21st, 2019

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

In your role as clerk, have you ever witnessed inappropriate pressure being exerted by the Prime Minister or anyone acting on behalf of the Prime Minister’s Office on the former Minister of Justice and Attorney General concerning remediation agreements or any other matter?

[Michael Wernick]

No.

The Prime Minister’s policy regarding conversations on legal matters and legal issues is very well set out in the document Open and Accountable Government, which he completed just after the elections. It describes the government’s policies in this regard.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

I think it—

[Michael Wernick]

On every occasion, the Prime Minister said, verbally and in a letter to the Minister of Justice, that the decision was and remained her prerogative.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Clerk.

Would it be possible for us to obtain a copy of that letter? Could it be sent to the clerk?

[The Chair, Liberal, Anthony Housefather]

It will be deposited and copies shared with members of the committee.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much for clarifying that no inappropriate pressure was applied to the former minister of justice and attorney general by the Prime Minister or officials in the Prime Minister's Office.

I think it would help Canadians who haven't seen the book that you reference, the important playbook, to use your words. When you're in a conversation, when you're in a room, how do you know where that line is in terms of robust and detailed conversations that do not then cross the Shawcross doctrine, do not go into direction and pressure?

[Michael Wernick]

I think that the minister tried to describe the two hats that he wears, and I think the committee will hear from witnesses more expert than I am.

When you are the Prime Minister and the chair of cabinet and answerable before Parliament and go to question period, everything that happens in the government apparatus is of some concern to you or of some interest to you to know what's going on and to follow it. That said, each minister has very specific roles given to them by statute to take decisions. They're regulatory decisions on all sorts of things, permits, licences, that are held by the minister.

The role of the Minister of Justice in the case of prosecutions is incredibly clear in Canada. There is a statutory, legal force field around the prosecution function in Canada that doesn't exist in the United Kingdom, by the way. We have the strongest protection of independent prosecution that I can think of.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You said something in your opening remarks that struck a chord with me. You said that the rule of law in this country is intact and it's a fundamental principle of our country.

Could you give us other examples in your current experience and across your 37 years of experience as to how you make that statement here today?

[Michael Wernick]

I have spent time in and around ministers and prime ministers. It's a great honour of my career.

I worked very closely with three active prime ministers, former active ministers, a dozen ministers. I've seen cabinet meetings of the Chrétien cabinet, the Mulroney cabinet, the Martin cabinet, the Harper cabinet and the Trudeau cabinet. I can tell you that they are always guided by trying to do the right thing the right way. The exceptions to that in Canada are extremely rare and are detected, corrected and punished.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

In the 20 seconds I have left, I would just like to ask you this: how can you say that the rule of law is paramount in Canada?

[Michael Wernick]

As I said, Parliament created all kinds of laws to protect ethics in government and they have been built by successive governments. This is not a partisan comment. Some of them come from different prime ministers in different periods. I'm a big fan of the accountability act of Prime Minister Harper. I'm a big fan of other things that have been done by other governments in terms of adding transparency and being vigilant about ethics of government.

As I said, we have an independent prosecutor. The Lobbying Act, which was in the interest of transparency, is working. All of the contacts by the company were disclosed and registered. The Ethics Commissioner, who is an officer of Parliament created by Parliament to serve and advise parliamentarians, initiated his own process. My view is that this is the appropriate forum to deal with this.

I am willing, and have made it very clear, as has everybody in this matter, to be interviewed and to deal with the Ethics Commissioner and submit to his investigation. He has the powers of a superior court judge to compel production of documents and to get people to act as witnesses.

I commend you to the officer of Parliament that you created.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, sir.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I'd like to say at the outset, Mr. Wernick, that with 37 years working in all political stripes—you are currently Clerk of the Privy Council and secretary to the cabinet—you are a servant of the people of Canada, and I thank you, sir, for your service.

I have to ask you this. There was earlier reference to a letter of December 5, a copy of which I think has been alluded to, which is a letter from SNC-Lavalin—

[The Chair, Liberal, Anthony Housefather]

From the Prime Minister to SNC-Lavalin....

[Murray Rankin, NDP, Victoria, BC]

—from the Prime Minister to SNC-Lavalin denying a request for a meeting but asking that they go to see the Minister of Justice.

Does it not strike you as a little odd that this would be the case given the context?

[Michael Wernick]

If you read the text into the record, I don't think it said to go and see—

[Murray Rankin, NDP, Victoria, BC]

I mean, obviously it says—

[Michael Wernick]

It says it's a matter before the courts and therefore you should deal with the Minister of Justice, which means deal with the legal system through the legal process.

[The Chair, Liberal, Anthony Housefather]

We're waiting for copies to be distributed.

[Murray Rankin, NDP, Victoria, BC]

Maybe I'll have time to come back to that.

I want to ask you this. I'm not asking you for legal advice, but I'm asking you, given your vast experience, about the nature of solicitor-client privilege in circumstances such as this. I'd like you to tell us a little bit more about your observations.

[Michael Wernick]

I've spent a lot of time reading material on the topic of this, the Shawcross convention and all of these issues and legal doctrines. I am not a lawyer, but I use them a lot. I am in no position to give this committee legal advice. You have excellent law clerks and people who can come and appear.

My conclusion, as somebody who spends a lot of time in governance, is I do not see where the former attorney general was a solicitor. The matter was never discussed at cabinet, never. So she was not giving advice to cabinet. She was not advising the Prime Minister. The Prime Minister said at every occasion, verbally and in writing, she was the decider. So she was not giving legal advice to the Prime Minister. She was the decider, the full and final decider. She can't be the fettered solicitor and the battered decider—in that horrible, vile cartoon—at the same time. It's one or the other.

[Murray Rankin, NDP, Victoria, BC]

Therefore, solicitor-client privilege couldn't apply.

[Michael Wernick]

That is my conclusion, not my advice.