Gilakas'la. Thank you, Mr. Chair, and thank you to the members of the justice committee for providing me the opportunity for extended testimony today. I very much appreciate it.
Starting off, I would like to acknowledge the territory, the ancestral lands of the Algonquin people.
For a period of approximately four months, between September and December of 2018, I experienced a consistent and sustained effort by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the Attorney General of Canada in an inappropriate effort to secure a deferred prosecution agreement with SNC-Lavalin.
These events involved 11 people, excluding myself and my political staff, from the Prime Minister's Office, the Privy Council Office and the office of the Minister of Finance. This included in-person conversations, telephone calls, emails and text messages. There were approximately 10 phone calls and 10 meetings specifically about SNC, and I and/or my staff were a part of these meetings.
Within these conversations, there were express statements regarding the necessity of interference in the SNC-Lavalin matter, the potential for consequences and veiled threats if a DPA was not made available to SNC. These conversations culminated on December 19, 2018, with a conversation I had with the Clerk of the Privy Council, a conversation that I will provide some significant detail on.
A few weeks later, on January 7, 2019, I was informed by the Prime Minister that I was being shuffled out of the role of Minister of Justice and Attorney General of Canada.
For most of these conversations, I made contemporaneous notes, detailed notes, in addition to my clear memory, which I am relying on today, among other documentation. My goal in my testimony is to outline the details of these communications for the committee and indeed for all Canadians. However, before doing that, let me make a couple of comments.
First, I want to thank Canadians for their patience since the February 7 story that broke in The Globe and Mail. Thank you as well specifically to those who have reached out to me across the country. I appreciate the messages, and I have read all of them.
Second, on the role of the Attorney General, the Attorney General exercises prosecutorial discretion as provided for under the Director of Public Prosecutions Act. Generally this authority is exercised by the director of public prosecutions, but the Attorney General has authority to issue directives to the DPP on specific prosecutions or to take over prosecutions. It is well established that the Attorney General exercises prosecutorial discretion. She or he does so individually and independently. These are not cabinet decisions.
I will say that it is appropriate for cabinet colleagues to draw to the Attorney General's attention what they see as important policy considerations that are relevant to decisions about how a prosecution will proceed. What is not appropriate is pressing the Attorney General on matters that she or he cannot take into account, such as partisan political considerations, continuing to urge the Attorney General to change her or his mind for months after the decision has been made, or suggesting that a collision with the Prime Minister on these matters should be avoided.
With that said, the remainder of my testimony will be a detailed and factual delineation of approximately 10 phone calls, 10 in-person meetings, and emails and text messages that were part of an effort to politically interfere regarding the SNC matter for purposes of securing a deferred prosecution.
The story begins on September 4, 2008. My chief of staff and I were overseas when I was sent a memorandum for the Attorney General, pursuant to section 13 of the Director of Public Prosecutions Act. It was entitled “Whether to issue an invitation to negotiate a remediation agreement to SNC-Lavalin” and was prepared by the director of public prosecutions, Kathleen Roussel.
The only parts of this note that I will disclose are as follows: “the DPP is of the view that an invitation to negotiate will not be made in this case and that no announcement will be made by the PPSC.”
As with all section 13 notices, the director provides the information so that the Attorney General can take such course of action as they deem appropriate. In other words, the director had made her decision not to negotiate a remediation agreement with SNC-Lavalin.
I subsequently spoke to my minister's office staff about the decision and I did the standard practice of undertaking further internal work and due diligence in relation to this note, a practice that I have had for many of the section 13 notices that I received when I was the Attorney General. In other words, I immediately put in motion, with my department and minister's office, a careful consideration and study of the matter.
Two days later, on September 6, one of the first communications about a DPA was received from outside of my department. Ben Chin, Minister Morneau's chief of staff, emailed my chief of staff and they arranged to talk. He wanted to talk about SNC and what we could do, if anything, to address this. He said to her, my chief, that if they don't get a DPA, they will leave Montreal, and it's the Quebec election right now, so we can't have that happen. He said that they have a big meeting coming up on Tuesday and that this bad news may go public.
This same day, my chief of staff exchanged some emails with my minister's office staff about this, who advised her that the deputy attorney general, Nathalie Drouin, was working on something and that my staff were drafting a memo about the role of the Attorney General vis-à-vis the PPSC.
It was on or about this day that I requested a one-on-one meeting with the Prime Minister on another matter of urgency, and as soon as possible after I got back into the country. This request would ultimately become the meeting on September 17 between myself and the Prime Minister that has widely been reported in the media.
On September 7, my chief of staff spoke by phone to my then deputy minister about the call she had received from Ben Chin and the deputy stated that the department was working on this. The deputy gave my chief a quick rundown of what she thought some options would be. On the same day, I received a note from my staff on the role of the Attorney General, a note that my office also shared with Elder Marques and Amy Archer at the PMO.
The same day, staff in my office met with the deputy minister. Some excerpts of the section 13 note were read to the deputy minister, but the deputy minister did not want to be provided with a copy of the section 13 note.
On September 8, my deputy shared the draft note on the role of the Attorney General with my chief of staff, who subsequently shared it with me, and over the next day, clarity was sought by my staff with the deputy on aspects of the options that were laid out in her note.
A follow-up conversation between Ben Chin and a member of my staff, François Giroux, occurred on September 11. Mr. Chin said that SNC had been informed by the PPSC that it cannot enter into a DPA, and Ben again detailed the reasons why they were told that they were not getting a DPA. Mr. Chin also noted that SNC's legal counsel was Frank Iacobucci, and further detailed what the terms were that SNC was prepared to agree to, stating that they viewed this as part of a negotiation.
To be clear, up to this point I had not been directly contacted by the Prime Minister, officials in the Prime Minister's Office or the Privy Council Office about this matter. With the exception of Mr. Chin's discussions, the focus of communications had been internal to the Department of Justice.
This changed on September 16. My chief of staff had a phone call with Mathieu Bouchard and Elder Marques from the Prime Minister's Office. They wanted to discuss SNC. They told her that SNC had made further submissions to the Crown and that “there is some softening, but not much”. They said that they understand that the individual Crown prosecutor wants to negotiate an agreement, but the director does not. They said that they understand that there are limits on what can be done, and that they can't direct, but that they hear that our deputy of justice thinks we can get the PPSC to say “we think we should get some outside advice on this.” They said that they think we should be able to find a more reasonable resolution here. They told her that SNC's next board meeting is on Thursday, which was September 20.
They also mention the Quebec election context. They asked my chief if someone had suggested the outside advice idea to the PPSC and asked whether we are open to this suggestion. They wanted to know if my deputy could do it.
In response, my chief of staff stressed to them prosecutorial independence and potential concerns about the interference in the independence of the prosecutorial functions. Mr. Bouchard and Mr. Marques kept telling her that they didn't want to cross any lines, but they asked my chief of staff to follow up with me directly on this matter.
To be clear, I was fully aware of the conversations between September 4 and 16 that I have outlined. I had been regularly briefed by my staff from the moment this first arose, and I had also reviewed all materials that had been produced. Further, my view had also formed at this point, through the work of my department, my minister's office and work I conducted on my own, that it was inappropriate for me to intervene in the decision of the director of public prosecutions in this case and pursue a deferred prosecution agreement.
In the course of reaching this view, I discussed the matter on a number of occasions with my then deputy, so that she was aware of my view. I raised concerns on a number of occasions with my deputy minister about the appropriateness of communications we were receiving from outside the department and also raised concerns about some of the options that she had been suggesting.
On September 17, the deputy minister said that Finance had told her that they want to make sure that Kathleen understands the impact if we do nothing in this case. Given the potential concerns raised by this conversation, I discussed this later with my deputy. This same day, September 17, I had my one-on-one meeting with the Prime Minister that I requested a couple of weeks earlier. When I walked in, the Clerk of the Privy Council was in attendance as well.
While the meeting was not about the issue of SNC and DPAs, the Prime Minister raised the issue immediately. The Prime Minister asked me to help out and to find a solution here for SNC, citing that if there is no DPA, there would be many jobs lost and that SNC would move from Montreal. In response, I explained the law to him and what I have the ability to do and not do under the Director of Public Prosecutions Act around issuing directives or assuming conduct of prosecutions. I told him that I had done my due diligence and had made up my mind on SNC and that I was not going to interfere with the decision of the director.
In response, the Prime Minister reiterated his concerns. I then explained how this came about and that I had received a section 13 note from the DPP earlier in September and that I had considered the matter very closely. I further stated that I was very clear on my role as the Attorney General, and that I am not prepared to issue a directive in this case, that it would not be appropriate.
The Prime Minister again cited the potential loss of jobs and SNC moving. Then, to my surprise, the Clerk started to make the case for the need to have a DPA. He said, “There is a board meeting on Thursday September 20 with stockholders”, “they will likely be moving to London if this happens” “and there is an election in Quebec soon”.
At that point, the Prime Minister jumped in, stressing that there is an election in Quebec and that “and I am an MP in Quebec—the member for Papineau”.
I was quite taken aback. My response—and I vividly remember this as well—was to ask the Prime Minister a direct question, while looking him in the eye. I asked, “Are you politically interfering with my role/my decision as the Attorney General? I would strongly advise against it.”
The Prime Minister said, “No, no, no. We just need to find a solution.”
The Clerk then said that he spoke to my deputy and she said that I could speak to the director.
I responded by saying no, I would not. That would be inappropriate. I further explained to the Clerk and the Prime Minister that I had a conversation with my deputy about options and what my position was on the matter.
As a result of this discussion, I agreed to and undertook to the Prime Minister that I would have a further conversation with my deputy and the Clerk, but that these conversations would not change my mind. I also said that my staff and my officials are not authorized to speak to the PPSC.
We finally discussed the issue for which I had asked for the meeting in the first place.
I left the meeting and immediately debriefed my staff about what was said with respect to SNC and DPAs.
On September 19, I met with the Clerk as I had undertaken to the Prime Minister. The meeting was one-on-one, in my office.
The Clerk brought up job losses and that this is not about the Quebec election or the Prime Minister being a Montreal MP. He said that he has not seen the section 13 note. The Clerk said that he understands that SNC is going back and forth with the DPP, and that they want more information. He said that “Iacobucci is not a shrinking violet”. He referenced the September 20 date and that they don't have anything from the DPP. He said that the Prime Minister is very concerned about the confines of my role as Attorney General and the director of public prosecutions. He reported that the Prime Minister is very aware of my role as the Attorney General of Canada.
I told the Clerk again that I instructed that my deputy is not to get in touch with the director and that given my review of the matter I would not speak to her directly regarding a DPA. I offered to the Clerk that if SNC were to send me a letter expressing their concerns, their public interest argument, it would be permissible and I would appropriately forward it directly to the director of public prosecutions.
Later that day, my chief of staff had a phone call with Elder Marques and Mathieu Bouchard from the Prime Minister's Office. They wanted an update on what was going on regarding the DPAs since “we don't have a ton of time”. She relayed my summary of the meeting with the Clerk and the Prime Minister.
Mathieu and Elder also raised the idea of an “informal reach out” to the DPP. My chief of staff said that she knew I was not comfortable with that, as it looked like and probably did constitute political interference. They asked whether that was true if it wasn't the Attorney General herself, but if it was her staff or the deputy minister. My chief of staff said “yes”, it would, and offered a call with me directly. They said that “we will regroup and get back to you on that”.
Still on September 19, I spoke to Minister Morneau on this matter when we were in the House. He again stressed the need to save jobs, and I told him that engagements from his office to mine on SNC had to stop, that they were inappropriate.
They did not stop. On September 20, my chief of staff had phone calls with Mr. Chin and Justin To, both members of the Minister of Finance's office, about DPAs and SNC.
At this point, after September 20, there was an apparent pause in communicating with myself or my chief of staff on the SNC matter. We did not hear from anyone again until October 18 when Mathieu Bouchard called my chief of staff and asked that we—I—look at the option of my seeking an external legal opinion on the DPP's decision not to extend an invitation to negotiate a DPA.
This would become a recurring theme for some time in messages from the PMO, that an external review should be done of the DPP's decision.
The next day as well, SNC filed a Federal Court application seeking to quash the DPP's decision to not enter into a remediation agreement with them.
In my view, this necessarily put to rest any notion that I might speak to or intervene with the DPP, or that external review could take place. The matter was now before the courts and a judge was being asked to look at the DPP's discretion.
However, on October 26, 2018, when my chief of staff spoke to Mathieu Bouchard and communicated to him that, given that SNC had now filed in Federal Court seeking to review the DPP's decision, surely we had moved past the idea of the Attorney General intervening or getting an opinion on the same question. Mathieu replied that he was still interested in an external legal opinion idea. Could she not get an external legal opinion on whether the DPP had exercised their discretion properly, and then on the application itself, the Attorney General could intervene and seek to stay the proceedings, given that she was awaiting a legal opinion?
My chief of staff said that this would obviously be perceived as interference and her boss questioning the DPP's decision. Mathieu said that if six months from the election SNC announces they're moving their headquarters out of Canada, that is bad. He said, “We can have the best policy in the world but we need to get re-elected.” He said that everybody knows that this is the Attorney General's decision, but that he wants to make sure that all options are being canvassed. Mathieu said that if at the end of the day the Attorney General is not comfortable, that is fine. He just “doesn't want any doors to be closed”. Jessica, my chief of staff, said that I was always happy to speak to him should he wish.
In mid-November, the PMO requested that I meet with Mathieu Bouchard and Elder Marques to discuss the matter, which I did on November 22. This meeting was quite long; I would say about an hour and a half. I was irritated by having to have this meeting, as I had already told the Prime Minister, etc., that a DPA on SNC was not going to happen, that I was not going to issue a directive. Mathieu, in this meeting, did most of the talking. He was trying to tell me that there were options and that I needed to find a solution. I took them through the DPP Act, section 15 and section 10, and talked about the prosecutorial independence as a constitutional principle, and that they were interfering. I talked about the section 13 note, which they said they had never received, but I reminded them that we sent it to them in September. Mathieu and Elder continued to plead their case, talking about if I'm not sure in my decision, that we could hire an eminent person to advise me. They were kicking the tires. I said no. My mind had been made up and they needed to stop. This was enough.
I will briefly pause at this moment to comment on my own state of mind.
In my role as Attorney General, I had received the decision of the DPP in September, had reviewed the matter, made a decision on what was appropriate given a DPA and communicated that to the Prime Minister. I had also taken additional steps that the Prime Minister asked me to, such as meeting with the Clerk.
In my view, the communications and efforts to change my mind on this matter should have stopped. Various officials also urged me to take partisan political considerations into account, which it was clearly improper for me to do. We either have a system that is based on the rule of law, the independence of prosecutorial functions and respect for those charged to use their discretion and powers in a particular way, or we do not.
While in our system of government, policy-oriented discussion amongst people at earlier points in this conversation may be appropriate, the consistent and enduring efforts—even in the face of judicial proceedings on the same matter, and in the face of a clear decision of the director of public prosecutions and the Attorney General—to continue and even intensify such efforts raises serious red flags in my view, yet this is what continued to happen.
On December 5, 2018, I met with Gerry Butts. We had both sought out this meeting. I wanted to speak about a number of things, including bringing up SNC and the barrage of people hounding me and my staff. Towards the end of our meeting, which was in the Château Laurier, I raised how I needed everybody to stop talking to me about SNC, as I had made up my mind and the engagements were inappropriate.
Gerry then took over the conversation and said how we need a solution on the SNC stuff. He said I needed to find a solution. I said no and I referenced the preliminary inquiry and the judicial review. I said further that I gave the Clerk the only appropriate solution that could have happened, and that was the letter idea that was not taken up. Gerry talked to me about how the statute was a statute passed by Harper and that he does not like the law. I said something like that is the law that we have.
On December 7 I received a letter from the Prime Minister dated December 6, attaching a letter from the CEO of SNC-Lavalin dated October 15. I responded to the Prime Minister's letter of December 6, noting that the matter is before the courts so I cannot comment on it, and that the decision re a DPA was one for the DPP, which is independent of my office.
This brings me to the final events in the chronology, the ones that signal, in my experience, the final escalation in efforts by the Prime Minister's Office to interfere in this matter. On December 18, 2018, my chief of staff was urgently summoned to a meeting with Gerry Butts and Katie Telford to discuss SNC. They want to know where I—me—am at in terms of finding a solution. They told her that they felt like the issue was getting worse and that I was not doing anything. They referenced a possible call with the Prime Minister and the Clerk the next day.
I will now read to you a transcript of the most relevant sections of a text conversation between my chief of staff and me almost immediately after that meeting.
Jessica: “Basically, they want a solution. Nothing new. They want external counsel retained to give you an opinion on whether you can review the DPP's decision here and whether you should in this case.... I told them that would be interference. Gerry said, 'Jess, there is no solution here that does not involve some interference.' At least they are finally being honest about what they are asking you to do! Don't care about the PPSC's independence. Katie was like 'we don't want to debate legalities anymore....' They keep being like 'we aren't lawyers, but there has to be some solution here.'”
I—MOJAG—texted: “So where were things left?”
Jessica: “So unclear. I said I would of course let you know about the conversation and they said they were going to 'kick the tires' with a few people on this tonight. The Clerk was waiting outside when I left. But they said they want to set up a call between you and the Prime Minister and the Clerk tomorrow. I said that of course you would be happy to speak to your boss! They seem quite keen on the idea of you retaining an ex Supreme Court of Canada judge to get advice on this. Katie Telford thinks it gives us cover in the business community and the legal community, and that it would allow the Prime Minister to say we were doing something. She was like 'If Jody is nervous, we would of course line up all kinds of people to write OpEds saying that what she is doing is proper.'”
On December 19, 2018, I was asked to have a call with the Clerk. It was a fairly lengthy call, and I took the call from home. I was on my own, by myself. Given what occurred the previous day with my chief of staff I was determined to end all interference and conversations about this matter once and for all. Here is part of what the Clerk and I discussed.
The Clerk said he was calling about DPAs, SNC. He said he wants to pass on where the Prime Minister is at. He spoke about the company's board and the possibility of them selling out to someone else, moving their headquarters and job losses.
He said that the Prime Minister wants to be able to say that he has tried everything he can within the legitimate tool box. The clerk said that the Prime Minister is quite determined, quite firm, but he wants to know why the DPA route, which Parliament provided for, isn't being used. He said, “I think he is going to find a way to get it done, one way or another....So he is in that kind of mood, and I wanted you to be aware of it.”
The Clerk said he didn't know if the Prime Minister was planning on calling me directly or if he is thinking about somebody else to give him some advice. You know, he does not want to do anything outside of the box of what is legal or proper. He said that the Prime Minister wants to understand more, to give him advice on this or give you advice on this if you want to feel more comfortable you are not doing anything inappropriate or outside the frame.
I told the Clerk that I was one hundred per cent confident that I was doing nothing inappropriate. I again reiterated my confidence in where I am at on my views on SNC and the DPA have not changed. I reiterated this as a constitutional principle of prosecutorial independence.
I warned the Clerk in this call that we were treading on dangerous ground here. I also issued a stern warning because, as the Attorney General, I cannot act in a manner, and the prosecution cannot act in a manner, that is not objective, that isn't independent. I cannot act in a partisan way and I cannot be politically motivated. This all screams of that.
The Clerk wondered whether anyone could speak to the director about the context around this, or get her to explain her reasoning. The Clerk told me that he was going to have to report back to the Prime Minister before he leaves. He said again that the Prime Minister was in a pretty firm frame of mind about this, and that he was a bit worried.
I asked what he was worried about. The Clerk then made the comment about how it is not good for the Prime Minister and his Attorney General to be at loggerheads.
I told the Clerk that I was giving him my best advice and that if he did not accept that advice, then it is the Prime Minister's prerogative to do what he wants, but I am trying to protect the Prime Minister from political interference or perceived political interference, or otherwise.
The Clerk acknowledged that, but said that the Prime Minister does not have the power to do what he wants. All the tools are in my hands, he said.
I said that I was having thoughts of the Saturday night massacre, but that I was confident that I had given the Prime Minister my best advice to protect him and to protect the constitutional principle of prosecutorial independence.
The clerk said that he was worried about a collision because the Prime Minister is pretty firm about this. He told me that he had seen the Prime Minister a few hours ago and that this is really important to him. That was essentially where the conversation ended, and I did not hear from the Prime Minister the next day.
