Justice Committee on Feb. 21st, 2019

[Murray Rankin, NDP, Victoria, BC]

I'm not asking for legal advice. You have 37 years, a lot of experience. That is fascinating and very helpful.

On another related matter, cabinet confidentiality, is it your view that if a person—let's say the principal secretary to the Prime Minister, Mr. Butts—meets with the Attorney General at a hotel and talks about a particular matter, that somehow that can be subject to cabinet confidentiality?

[Michael Wernick]

There's material on cabinet confidence on the website. I would commend you to that. It is—and I know this sounds evasive—a bit murky. It generally applies to conversations among ministers, and conversations among ministers about matters before cabinet or about to go to cabinet. But there is law that says that intermediaries and representatives of ministers may be caught in that.

I have a statutory role—

[Murray Rankin, NDP, Victoria, BC]

Yes, you do.

[Michael Wernick]

—as the guardian of the confidences of previous governments and generally as the umpire on cabinet confidence issues.

[Murray Rankin, NDP, Victoria, BC]

Can you conceive of how a political staffer could be somehow cloaked with cabinet confidentiality in conversations with an attorney general?

[Michael Wernick]

It certainly could be advice to ministers and it could potentially be covered by cabinet confidence, because those staffers would be representatives of the minister. For these purposes, the Prime Minister is a minister. That's as far as I think I can go before I'm giving legal advice, which I shouldn't.

[Murray Rankin, NDP, Victoria, BC]

You talked in your opening statement, Mr. Wernick, about the director of public prosecutions in this case saying that she wrote that she had freely and independently exercised her prosecutorial discretion. She didn't budge when asked perhaps to do so...50 meetings, etc. It appears that the former attorney general didn't budge either. Then you concluded that the system worked.

In fact, Mr. Clerk, is it not possible that we could infer that meetings subsequent to that with the Prime Minister perhaps applying improper pressure and crossing that red line of the Shawcross convention, or his chief of staff doing so in a hotel off Parliament Hill, talking about this case after the decision had been made to, as you say, fully exercise independent discretion of the DPP, doesn't that strike you that the system may not have worked, that there might have been continuing political pressure that Canadians might reasonably infer out of those circumstances?

[Michael Wernick]

If you boil it down for Canadians as to what is going on here with the facts that we have and all of the facts that I know from my participation in meetings and conversations, we are discussing lawful advocacy and whether the minister took a lawful decision, which in the end, she did not take.

[Murray Rankin, NDP, Victoria, BC]

Yes, and there continued political pressure thereafter to change the tune.

[Michael Wernick]

The question is for the committee and, I would argue, for the Ethics Commissioner as a trained legal professional who is not in any way potentially besmirched as doing it for partisan reasons in an election year, before by-elections or in running for the leadership of a party. The Ethics Commissioner was created by Parliament precisely for these ethics in government issues. If this is not the kind of issue an ethics commissioner is there for, why do we have one?

[Murray Rankin, NDP, Victoria, BC]

Well, we do. It's a matter before the Ethics Commissioner, as you well know.

[Michael Wernick]

Yes.

[Murray Rankin, NDP, Victoria, BC]

It may be that we have a separate responsibility in this justice committee to see whether the chief law officer of the Crown, namely the former attorney general, was somehow improperly interfered with in her constitutionally required independent role in deciding whether prosecutions proceed or not.

In other words, we can have different investigations and hearings in respect of different matters. It seems to me to be completely appropriate. Indeed, we could have a judicial inquiry to determine whether or not, with full cross examination and the like—

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin, it's your last question.

[Murray Rankin, NDP, Victoria, BC]

I'm just putting it back to the witness that it doesn't mean we can't have this—

[The Chair, Liberal, Anthony Housefather]

I understand.

I'll let the witness briefly answer, and then we'll move to the next questioner.

[Michael Wernick]

I do not see, as a matter of governance, how a separate inquiry overlapping and in parallel with the work of an officer of Parliament with all of those powers would shed any additional light on the matter.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

First of all, allow me to thank the Clerk for appearing before our committee.

After having heard your remarks, I think we should all be concerned. One of the things you highlighted was that you're very much concerned about media speculation. Speaking of media speculation, I'd like to draw your attention to a Globe and Mail article of February 7 which, as everyone is well aware, is based solely on an anonymous source.

In that specific article, it is reported that the Honourable Jody Wilson-Raybould's speeches earned her “a private rebuke from Privy Council Clerk Michael Wernick”.

Is that correct?

[Michael Wernick]

Thank you for the opportunity to put this on the record. That never happened.

I can elaborate on that answer, if you wish, but that never happened. I have known the former attorney general for almost 15 years. I was the deputy minister at what was then called Indian and Northern Affairs for eight. We walked the path together for many years through many episodes in the journey towards indigenous reconciliation. I considered her a partner, an ally and a friend, and I would have too much respect for a minister of the Crown to rebuke someone.

That is from an anonymous source about a conversation that would have been between me and the minister, and I'm telling you it did not happen.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

You kindly presented us with a letter from the Office of the Prime Minister to the Office of the Attorney General. I think some of the members here were implying that there was something wrong with this letter.

In your opinion, looking at this letter and reading it, did anything improper happen there?

[Michael Wernick]

There was an incoming letter from the company asking for a meeting with the Prime Minister. The Prime Minister declined—

[Lisa Raitt, Conservative, Milton, ON]

Point of order, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Stop the time.

Yes, on a point of order.

[Lisa Raitt, Conservative, Milton, ON]

I'm sorry, the member just indicated that members here implicitly indicated that this letter was.... I don't know what your word was, but nobody—