Justice Committee on March 6th, 2019

[Pierre Poilievre]

Okay, thank you.

Now that I have 20 seconds—

[The Chair, Liberal, Anthony Housefather]

Yes, you do.

[Pierre Poilievre]

Were you aware that the government was working on a provision to allow SNC-Lavalin or companies like it that are convicted to continue to bid on federal contracts—yes or no?

[Michael Wernick]

These are not yes-or-no questions, sir.

It is well known that—

[The Chair, Liberal, Anthony Housefather]

I'll give you the time to finish the answer, even if the time has expired.

[Michael Wernick]

The law was brought into effect over the spring and summer of last year. It finally was brought into effect, I think, in mid-September. Like many pieces of legislation, it would require implementation regulations and protocols, and it is a matter of public record that there were extensive consultations, which are still under way, by the PSPC department about implementation of the law. Those were done in the public domain; the input is there; and the Minister of Public Services and Procurement has not pronounced and issued those regulations.

The purpose, as I understand it, was to make sure it wasn't a binary choice and that there would be options available to a government in terms of the consequences of a conviction, a ladder of sanctions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

Thank you, Ms. Drouin and Mr. Wernick, for reappearing before this committee. It's been very helpful.

My first question is for Madame Drouin. On pages 10 and 11 of your opening remarks, it says that you were told by a policy adviser in the Attorney General's office that “the Attorney General was not keen on the idea of exercising her authorities under the DPP Act.”

To me, when I look at the date, the day this would have happened and the day you were informed of this was two days after the notice had been issued. Was any reason provided to you as to why the Attorney General did not wish to exercise her authority under the DPP Act?

[Nathalie Drouin]

As I said to your colleague a little bit earlier, those authorities under the DPP have never been used, so there's a risk that for any AG to use the authorities under the act in any circumstances could be perceived as political interference.

[Ali Ehsassi, Liberal, Willowdale, ON]

Was any reason provided to you as to why they weren't?

[Nathalie Drouin]

I think the reason was that the former AG didn't see any room or marge de manoeuvre to use those authorities without being perceived as politically interfering in a case.

[Ali Ehsassi, Liberal, Willowdale, ON]

In your opinion was there any room to interfere?

[Nathalie Drouin]

I'm not here to provide any opinion to the committee. As I said before, the powers or authorities are under the DPP Act. It was clear when they were adopted that they should be used on an exceptional basis, and it's for the Attorney General to decide and to make a decision on that.

[Ali Ehsassi, Liberal, Willowdale, ON]

We've heard from the Clerk. In his statement he said, and I'd like to quote this passage: “ln dealing with the public interest, the Attorney General's decision is never final in the sense that the public interest can evolve or change.”

Putting on your legal hat, would you agree with that assessment?

[Nathalie Drouin]

I agree that it's the responsibility of a prosecutor—it's a continuum obligation—to assess and reassess the public interest regarding a specific prosecution in light of new facts and evidence put in front of the prosecutor.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay, so as the factual matrix evolves, you would think that there's an opportunity to revisit. That would be the obligation, essentially. That would be the obligation to actually—

[Nathalie Drouin]

It's a continuum assessment, if I may say, in light of new facts or evidence put in front of the prosecutor.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

Now I have another question for you. Would you agree that the discretion of the DPP is decidedly distinct and different from the discretion of the Attorney General?

[Nathalie Drouin]

The first discretion, and that should be in 99% of the cases regarding decisions to lay charges in specific cases, belongs to the DPP. The discretion of the AG is whether to decide, again, on an exceptional basis, to overturn, change or modify the decision of the DPP, respecting the obligations and the parameters under the DPP Act.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

The last time you appeared before this committee, you actually brought up the BAE decision, which has to do with discretion, and how the House of Lords, which was grappling with some of the same issues we've been grappling with, dealt with it. Did you ever have an opportunity to discuss the BAE decision with either the Attorney General or her staff?

[Nathalie Drouin]

I did not discuss the Corner House case with the former AG.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

If I could turn to the Clerk, how unusual is it for the Clerk or the PM's deputy minister to speak to a minister on issues where there is friction between different and distinct ministries?

[Michael Wernick]

It doesn't come up very often in a cabinet of 30 or 35 people. As the secretary to cabinet and the Prime Minister's deputy, I try to keep the flow of business through cabinet going, and I'm very watchful for relationships among ministers, and ministers and public servants. The Prime Minister doesn't always have a line of sight to that.

There are occasions where I will speak to ministers or speak to officials to try to—I guess the word might be conciliate, or to find a way through because they tend to chew up time and energy, and my role is to keep the agenda moving forward. I don't do it very often. I have done it from time to time over the last three years, and this was a case where I could see that there was a building tension and frustration about this issue.

[The Chair, Liberal, Anthony Housefather]

This will be your last question.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

The last time you appeared here, you testified that to the best of your knowledge there was no improper pressure applied to the former attorney general. In light of what we've heard from witnesses since your last appearance, would that still be your assessment?