Justice Committee on Feb. 21st, 2019

[The Chair, Liberal, Anthony Housefather]

Okay.

Mr. Fortin, you have the floor for three minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Mr. Lametti, in your opinion does the Attorney General of Canada have the right to demand that the Director of Public Prosecutions undertake negotiations with SNC-Lavalin to conclude a remediation agreement? Does he have that power?

[David Lametti]

He has the powers that are set out in the act. The correct answer is that the powers are set out in the act.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

So the answer is yes.

[David Lametti]

There are interpretations of the act. I am not going to comment on the interpretations of the act, because this may lessen litigation privilege and have consequences on the actual litigation between SNC-Lavalin and the...

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I understand that this may not be timely. I don’t have much time and I don’t want to go on at length about that. I just want to know whether in your opinion that power exists.

[David Lametti]

I am not going to give an opinion. I will say that the act exists.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

So the act exists and it allows the Attorney General to require that the Director of Public Prosecutions undertake such negotiations.

[David Lametti]

I cannot give an opinion or interpret the act. I just want to point out that such a law exists.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Fine.

Since it exists, can you tell me why, to date, this has not been done? Why has the Attorney General not issued such a directive to the Director of Public Prosecutions?

[David Lametti]

I can’t speculate...

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I am not asking you to speculate; you are the Attorney General.

[David Lametti]

Yes. In that capacity, I cannot answer your question because of litigation privilege. If I provide an interpretation that could have repercussions on the current litigation between SNC-Lavalin and the Director of Public Prosecutions.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Without providing an opinion, why have you not yet issued such a directive? Why did you not require that the Director of Public Prosecutions undertake negotiations?

[David Lametti]

The lawyers in the room will understand that I cannot give you an answer because it would impact that file. I would like to answer you but it would contravene the principle of litigation privilege.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

And do you know why the Attorney General who preceded you did not issue such directives to the Director of Public Prosecutions? Do you know why?

[The Chair, Liberal, Anthony Housefather]

Mr. Fortin, at this point, I must advise you that you are getting very close to the sub judice convention and this could have an impact on the SNC-Lavalin appeal.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Our witness is very much aware of the rules. He knows, and he will stop me.

[The Chair, Liberal, Anthony Housefather]

I am giving you this advice so that you may word your questions in consequence.

[David Lametti]

The answer is the same.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Fine, it’s the same answer.

You had...

[The Chair, Liberal, Anthony Housefather]

Your speaking time has elapsed, Mr. Fortin. Thank you.

I would like to thank the witnesses.

We very much appreciated having you here to start down our path on this study.

We will suspend for about five minutes while we get Mr. Wernick up to the microphone.

[The Chair, Liberal, Anthony Housefather]

We will now reconvene with our second witness group of the day.

We are very lucky to be joined by Mr. Michael Wernick, the Clerk of the Privy Council and secretary to the cabinet.

Mr. Wernick, it's a pleasure to have you with us. We'll ask you to make your opening statement now.

[Michael Wernick, Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office]

Thank you, Mr. Chair.

I want to make it clear that I came at the very first opportunity the committee invited me and that I have always made myself available to parliamentary committees. I've done over 25 appearances, and they're all on the record. I'm happy to try to assist the committee in its important deliberations.

I have a couple of things that maybe I could make as opening comments, and then I'm willing to take any questions. I'm willing to stay as long as the committee wishes. I have done committee appearances that went into four and five hours at a time until the committee was satisfied. It's entirely in the hands of the committee.

If I can speak to Canadians through you, Mr. Chair, I'd like to say a couple of things because a lot has been said and written in the last few weeks, and I think there are a couple of things that need to be clarified.

I worry about my country right now. I'm deeply concerned about my country right now, its politics and where it's headed. I worry about foreign interference in the upcoming election, and we're working hard on that. I worry about the rising tide of incitements to violence when people use terms like “treason” and “traitor” in open discourse. Those are the words that lead to assassination. I'm worried that somebody is going to be shot in this country this year during the political campaign.

I think it's totally unacceptable that a member of the Parliament of Canada would incite people to drive trucks over people after what happened in Toronto last summer. It's totally unacceptable, and I hope that you, as parliamentarians, are going to condemn that.

I worry about the reputations of honourable people who have served their country being besmirched and dragged through the market square. I worry about the trolling from the vomitorium of social media entering the open media arena. Most of all, I worry about people losing faith in the institutions of governance of this country, and that's why these proceedings are so important.

There are a couple of things from my perspective.

Should Canadians be concerned about the rule of law in this country? No. In the matter of SNC-Lavalin, it is now seven years since the first police raid on the company and four years since charges were laid by the RCMP, and during that entire time and up to today, the independence of the investigative and prosecutorial function has never been compromised. The matter is proceeding to trial.

The director of public prosecutions issued a statement on February 12, which you can find on her website, in the context of the Norman matter, in which she said, “I am confident that our prosecutors, in this and every case, exercise their discretion independently and free from any political or partisan consideration.” That is from the DPP. The only communications with the director of public prosecutions about the potential use of a deferred prosecution agreement, an instrument provided for by legislation, were conducted by the minister, as is appropriate.

In this matter, the laws that you as parliamentarians created around ethics in government are demonstrably working. The prosecutor is independent. The Lobbying Act worked as intended. The Ethics Commissioner self-initiated his own process. In other words, the shields held. The software that is supposed to protect our democracy is working.

Is there two-tier justice in Canada? No. Demonstrably not. Despite the most extensive government relations effort in modern times, including meetings with officials, political staff, the opposition leaders and hate advertising and advocacy by two consecutive premiers of Quebec, the company did not get what it wanted, demonstrably because they're seeking judicial review.

Are we soft on corporate crime? No. As you are discussing, deferred prosecution agreements are an attempt to balance public policy interests. It's a legitimate concern for governments and indeed for everyone that the workers, suppliers, pensioners and communities in which a company operates suffer for the misdeeds of the corporate officers. A deferred prosecution agreement is not an acquittal, an amnesty, an exoneration, a get out of jail free card or a slap on the wrist. It is what it says: It's an agreement to defer prosecution. It is subject to compliance, and it can be revoked.

DPAs were not slipped into Canadian law. There were consultations leading up to the bill that drew 370 participants and 75 written submissions before the December 2017 deadline. I'm sure those submissions would be available to this committee. There was extensive review of the bill provisions at a Senate committee, and that's all on the record.

I'm open to answering questions about any matter the committee wants to ask about. I think I'm pleased to disclose or discuss my contacts with the company and meetings that took place over the course of the last little while, which have come up in media speculation. I'm here to say to you that the Globe and Mail article contains errors and unfounded speculation, and in some cases it's simply defamatory.

With that, Mr. Chairman....

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to our first round of questions, of six minutes each.

We will start with Ms. Raitt.