Thank you, Mr. Chair. Good morning, colleagues.
I thank the committee for giving me this unique opportunity to speak to you today.
Over the past two weeks, following the initial publication of allegations in The Globe and Mail concerning the nature of conversations held between former minister Jody Wilson-Raybould and the Prime Minister’s Office, events have moved forward very quickly.
While many details remain uncertain, and based at least in part on anonymous accounts, it has become clear that Canadians deserve and require a public and transparent review of the events at issue. That is why I support the process initiated by this committee.
After all, one of the pillars of our democracy is that Canadians trust that our justice system is properly administered and monitored. I know that this committee can help to preserve that trust.
There is no question that the Attorney General of Canada plays an important role in upholding the rule of law in this country, and we should never doubt the government’s commitment to the role the Attorney General must play.
That said, I would like to take a minute to say a few words about what I can and cannot discuss here today. Although the facts remain uncertain, those that have been mentioned so far raise serious questions about the way in which the decision to initiate a prosecution is made.
We must provide Canadians with the transparency they deserve but in such a way that preserves rather than undermines the following: the right to a fair hearing in cases that are currently active, the integrity of the position of the director of public prosecutions, and the rule of law in our country more generally.
Furthermore, any responsible review must account for the fact that SNC-Lavalin is currently engaged in two legal proceedings involving matters related to the subjects under consideration today.
In other words, we must recognize that transparency can only happen if we approach conversations like today's and the ones that will follow in a considered and responsible manner.
Here is what I can talk about. There are three areas that I will be able to speak to today. The three areas reflect the three topics identified in the motion that this committee passed last week: first, the Shawcross doctrine, as well as its general implications to the matter at issue; second, discussions between the Office of the Attorney General and government colleagues; third, remediation agreements.
First, I want to be clear with the committee that while I had a general knowledge of this matter as a Montreal MP, I did not speak with the Prime Minister or any member of his office about it prior to my appointment as Attorney General.
Second, I am ready to discuss legal parameters concerning the role of the Attorney General in Canada and how those of us who are granted the honour and responsibility of the position must interact in cabinet. My view is that while the Attorney General must be able to make decisions independent of partisan considerations or direction, the Attorney General is also not an island. These are not easy decisions that face any Attorney General, and his or her ability to get the answer right on behalf of all Canadians is only improved through discussion and debate with the rest of cabinet and the experiences and views that they reflect.
For the purposes of this committee, it is important to understand what this relationship means in terms of what may or may not be protected by legal privilege. Privileged conversations will only occur between a lawyer and a client when the purpose of the conversation is to seek or give legal advice and the communication is intended to be confidential.
In my view, there will be many instances where a conversation between an Attorney General and his or her cabinet colleagues will not necessarily be in the framework of a solicitor-client relationship and therefore not be protected by this privilege. In particular, the Shawcross doctrine contemplates that where the Attorney General and not cabinet is the final decision-maker, he or she may consult his cabinet colleagues. Conversations of this nature are not inherently privileged by solicitor-client privilege. There are a range of opinions in both case law and academic commentary as to what aspects of these conversations might be covered by solicitor-client privilege.
Let me be very clear. I am not saying that there should be a rush to a comprehensive waiver of privilege without the benefit of details and regardless of any impact on ongoing legal proceedings, as some on the opposition benches have suggested should be the case. What I am saying, however, is that a policy debate between an Attorney General and a colleague at cabinet concerning a decision that the Attorney General must make is not inherently covered by solicitor-client privilege, whatever other protections may apply, depending on the facts of the case.
Finally, if it remains helpful to this committee, I believe we can discuss remediation agreements in general. It may be helpful for Canadians to understand some of the reasons that Canada has the mechanism in place, why other countries such as the United States and the United Kingdom also use them, and how they work in practice. I can also speak to the kinds of circumstances where a remediation agreement might be available.
On a related point, I can speak to the legal mechanism that allows the Attorney General, rather than the director of public prosecutions, to assume responsibility for a specific decision on a specific prosecution. On this point, I think it's important to note that the statutory regime is designed to protect the rule of law and shield prosecutorial decision-making, by ensuring that any decision on the part of the Attorney General to follow this course of action must be transparent to the Canadian public and include publication in the Canada Gazette.
Here is what I cannot talk about. I believe a discussion of those three areas will constitute a full response to last week's motion, in addition to an effort to assist the committee in its review of the allegations at issue. However, as I mentioned before, I wish to make clear in advance that there are also certain areas where I believe it would be irresponsible of me to speculate, express an opinion, or otherwise speak to matters that could undermine the conduct of ongoing prosecutions or the institution of the Attorney General.
Allow me to be more specific. First, I will not be able today to speculate on conversations I was not a party to. I think it is relevant to mention the fact that the former Attorney General issued no directives on the SNC-Lavalin case nor on any other prosecution, as nothing was published in the Canada Gazette. However, I am not aware of any of the details of the conversations that took place between Ms. Wilson-Raybould and the Prime Minister or his office, other than what the Prime Minister has made public.
Secondly, as I said before, I will not be able to discuss anything that is protected by solicitor-client privilege. Like any attorney, the Attorney General has the legal and ethical obligation to protect the confidentiality of solicitor-client communications. For any attorney general, those obligations are all the more crucial in that they involve the public interest. I will also not address matters protected by litigation privilege. These are matters that, were they disclosed, would compromise the ability of the government or Director of Public Prosecutions to pursue any legal proceedings currently underway or being considered.
Thirdly, I cannot speak of matters discussed in cabinet or with my cabinet colleagues. Canada has a long tradition of preserving the confidentiality of those discussions.
Fourth, I cannot discuss any matter that is currently before the courts. This restriction, commonly known as the sub judice convention, is essential to the protection of the constitutional independence of the judicial process. Consequently, I cannot answer any questions on ongoing legal proceedings. This includes any discussion in my capacity as Attorney General on the legal merits of granting a remediation agreement to SNC-Lavalin.
Finally, in addition to serving as Minister of Justice and Attorney General, I remain a lawyer, which is a profession that I have done my very best to honour for the past 25 years, first as a clerk at the Supreme Court of Canada, and then as a professor of law in the law faculty at McGill University.
I continue to take these obligations very seriously. As such, I will do my best to ensure that my answers today are as transparent and candid as they can be while still making clear to you any obligations of confidentiality that I owe to my client, Canada, that I understand myself to owe.
Thank you.
I now turn the floor over to my deputy minister.
