Justice Committee on March 6th, 2019

[Murray Rankin, NDP, Victoria, BC]

I'm going to pass it to Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Finally, Mr. Butts claimed that there was new evidence, which would be reason to intervene in a public prosecution but, Mr. Wernick, you said that this new evidence consisted of SNC's share price.

When the Prime Minister's Office wrote that legislation, it specifically exempted the economic argument. Ms. Wilson-Raybould was very clear that this could not be, and yet you believe that if it's something that you think can happen, “Well, we'll just make it happen.”

If “economic argument” was written by the Prime Minister's Office as not allowable, how do you get to claim that's new? That's not new evidence. That's new opinion.

[Michael Wernick]

The phrase “national economic interest” in the legislation is a cut and paste from the OECD code on anti-bribery.

In my understanding—and you can seek advice on this from experts—it is to distinguish national economic interest from the interest of other countries. If you're part of this group in the OECD, you cannot favour or let a company off because it helps France versus Germany, or Germany versus Italy, or Canada versus the United States.

[Charlie Angus, NDP, Timmins—James Bay, ON]

But it could be perfectly fine if used in an election. You would use it to—

[Michael Wernick]

If I could finish the question—

[The Chair, Liberal, Anthony Housefather]

Let Mr. Wernick finish, and then the time has expired.

Mr. Wernick.

[Michael Wernick]

My view is that the economic impacts of jobs—and it's explicitly in the Criminal Code. The impact on suppliers, pensioners, customers, communities is a relevant public interest consideration.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

To start off, Mr. Wernick, with regard to things that you can talk about today, is it true that you would not have been able to talk about those same things the last time that you were before the committee, and now you're able to talk about them because of the order in council?

[Michael Wernick]

Yes. There's one thing specifically, which is the legal opinion I sought and obtained in October, which I'm now at liberty to share with the committee.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

I'd like to turn to the September 19 one-on-one meeting.

The former attorney general said that you raised the fact that a board meeting was to take place on September 20 with stockholders, and she deemed this to be inappropriate. She also claimed that you raised the issue of SNC's lawyer, Frank Iacobucci, not being “a shrinking violet”, which she also felt was inappropriate.

Did you raise those issues, and do you consider raising them to be appropriate?

[Michael Wernick]

I don't remember the terminology.

I know Mr. Justice Iacobucci because we worked on a committee together, which was the selection committee that chose the head of the Truth and Reconciliation Commission. I was aware of him because I attended the University of Toronto when he was dean of law and so on.

If I used the phrase, I think it was intended to convey that I knew Mr. Iacobucci by reputation and somewhat personally, and he has an extremely tough legal mind.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Why were you concerned about the September 20 meeting of the SNC board?

[Michael Wernick]

I think I explained this earlier. It was not so much the board meeting. The board would make decisions about divulgation to shareholders and the public. They are a publicly traded company that regularly would have obligations to markets, and what they told the market would have repercussions. So the board, obviously for a company that was headed for a criminal trial, was continually, as the stewards of the company with responsibilities to shareholders, reassessing its options.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Why did you think that this was relevant information to share?

[Michael Wernick]

I think that I was of the view, and I remain of the view, that the potential impact on 9,000 people—the suppliers, the customers and the communities—is a relevant public interest consideration.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

The former attorney general wouldn't further consider anything that you raised at the September 19 meeting, indicating that should SNC draft a letter expressing their concerns, she would forward it to the DPP.

At that point, would you say that the Attorney General had made up her mind, and from your conversations, what, if anything, would have changed her mind?

[Michael Wernick]

September 19 was the first opportunity for me to follow up on September 17. That was the week that Parliament came back, as I'm sure all of you remember. The first chance to go and see her was after national caucus ended on Wednesday. We met in her office for about 10 to 15 minutes, in my recollection. We had a conversation, which was along the lines of what the former minister testified when she was here. She was very firm that in her mind it was final, and the only route open was for the company to make public interest arguments through its lawyers, and that's where I left the matter.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Going to the September 17 meeting with the Prime Minister, you were present. Ms. Wilson-Raybould indicated in her testimony that the reason for the meeting was not SNC, and you confirmed that in your testimony as well.

Can you talk about what 90% of the meeting was about, as per your testimony?

[Michael Wernick]

In February—I think it may have even been Valentine's Day 2018—the Prime Minister spoke in the House and committed his government to a new approach to recognition of indigenous rights, a fundamental change in the relationship. It's something that he wanted to do and I'm sure would like to still pursue.

Through the course of the summer, we were not making progress on ironing out the public policy on legal considerations around that. I was trying to keep the agenda moving through the fall, which included NAFTA, the legalization and regulation of cannabis, and many, many, many other issues. I stepped in to try to conciliate and move that forward. My colleagues at PMO were immersed 7-24 in NAFTA negotiations.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

I have one question for both of the witnesses.

There have been comments made about the possible separation of roles of the Attorney General and the Minister of Justice.

Can you please both comment on that feasibility and whether this is a step that we should take?

[Michael Wernick]

I think that when you're considering a change of that magnitude, you are not talking about changing an app; you are talking about going into the deep code and the operating system of this country. It should not be done lightly. It should be studied thoroughly.

I think parties should declare themselves in the upcoming election. It might be a good topic for an expert panel, a royal commission, a Senate committee that's not running for election this summer.

I do have views, which I'd be happy to share at the time, but my view is that I wouldn't do it lightly. The U.K. analogy is not a perfect one, because the United Kingdom does not have a statutory wall around the prosecutorial function, and Canada does.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. Drouin.

[Nathalie Drouin]

If I could add, I have been working with that system for six years. I think it's a good system. I think it's working.

Whether or not something else can be brought into Canada is a policy question. I'm ready to support doing analysis if there's a need to do that.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll now go to three minutes for each of the non-recognized parties. Then we'll excuse the witnesses, and we'll come back to Mr. Rankin for his motion.

Ms. May.