Evidence of meeting #135 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was general.
A video is available from Parliament.
Liberal
Liberal
The Chair Liberal Anthony Housefather
I can tell you it's 5:53. Would you like a break, Ms. Wilson-Raybould?
Liberal
The Chair Liberal Anthony Housefather
You're good? Okay.
The fourth round, just so I have it correct, starts with six minutes to the Liberals, six to the Conservatives, six to the Liberals, five to the Conservatives and three to the NDP.
Mr. Boissonnault, are you continuing?
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Mr. Chair, I would be happy to.
Ms. Wilson-Raybould, you know that I come at these things from a non-legal perspective. I was in business before this, and I'm learning what it's like to be on the justice committee, so it often leads me to seek to understand certain legal principles.
We've heard here today and in a testimony from other witnesses, including Wendy Berman, Kenneth Jull and the Clerk of the Privy Council, that the AG has a role to play in remediation agreements, and you mentioned in your document here the concept of prosecutorial discretion. One of the duties of a prosecutor is to determine whether to prosecute or not, correct?
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
From the Public Prosecution Service of Canada handbook, which is available on the justice department website, if anybody wants to look at it, it says very clearly:
When deciding whether to initiate and conduct a prosecution...council must consider two issues: Is there a reasonable prospect of conviction based on evidence that is likely to be available at trial? If there is, would a prosecution best serve the public interest?
With this in mind, would you agree that the two questions for a prosecutor are reasonable prospect of conviction and public interest?
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Those are definitely questions that the prosecutors take into account.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Okay. So then, to go back to the handbook:
On the basis of the available material, Crown counsel must continually assess at each stage of the process whether the prosecution is in the public interest.
I look at this from outside of the legal community. With the need to continually assess in mind, wouldn't it be fair to say that a decision to continue with a prosecution is never final and is subject to re-evaluation in the light of the reasonable prospect of conviction in the public interest?
So the AG should have an open mind to new information coming in all the time, and really, the decision is never final, because it's still active. You have to continually assess new facts and new information. Is that not the case?
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Are we talking broadly? Are we talking specifically to SNC and the DPA?
Liberal
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
I recognize that it is entirely within the prosecutor's ability and discretion to continue to evaluate prosecutions. I was a prosecutor proudly for almost four years.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thank you very much.
I also saw in the justice department material issued last year in September that one of the goals of remediation agreements is to reduce harm that a criminal conviction of an organization could have for employees, shareholders and other third parties who did not take part in the offence.
If we then look at the Criminal Code, section 715.31(f), it says that a remediation agreement is:
to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing.
I think it's fair to say that with the extent of the company, its history, the fact that it employs almost 9,000 people in the country—52,000 globally—there's a local impact on the communities that are home to many innocent pensioners, suppliers and customers.
In your consultation, you said that you did a due diligence. How did you take into account the public interest and the impact on the thousands of innocent employers, pensioners and suppliers, if a DPA would not be entertained?
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Mr. Chair, I believe we're treading on dangerous ground here. I fundamentally uphold my responsibility as a member of Parliament in the sub judice rule, and do not feel it's appropriate for me to answer questions with respect to remediation agreements, the Criminal Code, or in relation to SNC and DPAs.
I believe that's the nature of the question, and I think members of this committee should tread lightly on interfering with active cases before the court.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Mr. Chair, I appreciate the warning.
However, Ms. Wilson-Raybould, my question is about the public interest; it's not about a particular matter. The clerk and perhaps the chair can clarify the sub judice matter.
But how could an AG make a decision—and in your words have a final decision—without taking this information into account? It's clearly in the public interest.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
Again—and I would appreciate some comments from the chair on this—I will say, and it's entirely appropriate, and I said it in my testimony, as the Attorney General, all attorneys general get section 13 notices from the director of public prosecutions. The contents of that notice are between the director of public prosecutions and the Attorney General of Canada. I will not go into talking about any of the situations, scenarios, conversations about the national interest with respect to SNC-Lavalin.
I would appreciate hearing from the chair on this.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
What I would suggest is to keep it to general or a hypothetical of a situation, and not deal with the SNC question specifically as to her decisions on SNC. That's my suggestion.
Members, of course, have the absolute right to ask questions here, and the witness has the absolute right to answer or not answer based on her own inclinations. Then the committee, should they decide that they want to ask her to answer regardless, has that power.
My request is to try to keep it general or hypothetical, to the extent that you can.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
I appreciate that.
Let me ask this question, then.
What legal doctrine or what legal principles led you to the conclusion that the conversations you were having with members of the PMO and other colleagues had, in your words, constituted inappropriate pressure?
On what legal basis did you make that assertion? We heard from legal scholars that the bar is really high, and the bar is very close to direction. Having a robust conversation about the public interest, or about saving 9,000 jobs or 52,000 jobs, is a completely legitimate and appropriate conversation.
What's the legal basis, the doctrine you used to say that your decision was final and you were done taking in new information?
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
I appreciate the question, and I can reiterate what I have said earlier.
I recognize that when I was the Attorney General—and certainly attorneys general before me and after—it was entirely appropriate to consider discussions around the public interest. I had discussions with colleagues with respect to SNC, and for prosecution agreements about the potential losses of jobs, the potential of SNC moving.
But, having taken into account everything I did when I was the Attorney General, including having conversations with my department, my minister's office staff, and doing my own due diligence, I had made my decision that I was not going to exercise my discretion and issue a directive, either a directive under section 10 or under section 15, and take over the prosecution, because I believed it was inappropriate to do so, recognizing that the director of public prosecutions had made their decision.
Conservative
Lisa Raitt Conservative Milton, ON
I'll go back to the directives for a second, Ms. Wilson-Raybould.
My understanding from taking a look at reports is that these directives are very rare in practice. I think there have been three substantive ones in the past 13 years. Two were from you: one on HIV-positive prosecutions; one on, I believe, indigenous prosecutions as well, which I think was recent but it didn't make it onto the list. And there was one was from our government on terrorism. Other than that, my recollection is that there really aren't any other directives of a significant heftiness on policy.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
If I may, there was a directive—I can't remember the exact thing—around terrorism.
Liberal
Jody Wilson-Raybould Liberal Vancouver Granville, BC
There was a directive that I issued. I was pleased to work with the member, Mr. Boissonnault, on the HIV directive. I had to follow the process that's outlined.
It was a general directive, as the terrorism one was, to provide guidelines to the public prosecutor. In issuing that directive, I had to follow procedures, including putting the directive into the Gazette. Prior to that, I had conversations with the director of public prosecutions, Kathleen Roussel, about the HIV directive, as is entirely appropriate. That directive came in in early December.
In the other directive, I believe you're referring to the indigenous litigation directive.