Evidence of meeting #138 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 decision.
A video is available from Parliament.
2:10 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Since I haven't seen them, I'm not going to say anything right now. I just ask you to move back to your opening statement, and the committee will consider that at a future date, when we're ready.
Thank you very much, Mr. Wernick. The timer is now back on.
2:10 p.m.
Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office
Thank you.
Mr. Chair, it has been suggested that my testimony to the Justice committee on February 21 was partisan, presumably in content or motivation. I would like to respond.
I would also like to provide the committee with my recollection of conversations I had with the former attorney general.
I want to first clarify my role within the Government of Canada as Clerk of the Privy Council. I am the deputy minister to the Prime Minister and secretary to the cabinet. In the first role, I'm charged with delivering advice to the Prime Minister and assisting him in delivering his agenda. I've had a close working relationship with the Prime Minister for more than three years, sitting in on countless meetings and discussions covering the entire range of governmental activity.
I work at the intersection of the public service and the elected officials, and I am present for many discussions that touch on matters that some would see as political. It is my role to be aware of this context, but I do not ever give advice that is partisan in content or motivation.
As Clerk it is part of my job to give the Prime Minister impartial advice and feedback on how his Ministers are exercising their roles, their relationships with colleagues and with the public service. The Prime Minister and his staff seek my advice before Cabinet shuffles and I have been the main advisor on appointments and deployments of Deputy Ministers.
As secretary to cabinet, my job is to ensure the smooth flow of decision-making through the cabinet system. The most scarce resource in Ottawa is time at cabinet. I work hard to ensure that discussions are well prepared, that due diligence has been exercised and that options are crystallized, so that ministers in the cabinet room can focus on the key aspects of decisions before them. Part of my job is to keep the government's agenda moving.
As the 23rd Clerk I have tried to be open with Canadians about my role and my perspectives. I communicate with them through a website and presence on Facebook, Twitter and Linkedln. All of my speeches are posted. I have given media interviews and I have appeared before Parliamentary Committees. As head of the public service, I submit a report to Parliament and Canadians every year on the state of their public service. I have always tried to be direct in my language.
I am profoundly disappointed to be accused of partisanship by people who have never met me. My career is on the public record. I have held the highest security clearances that this country can offer for many years. I was named to deputy minister-level positions by Prime Ministers Chrétien, Martin, Harper and Trudeau. I participated in the transition exercises, the swearing-in and the first cabinet meetings of Prime Ministers Martin, Harper and Trudeau. I've attended more than 200 meetings of cabinet and its committees since 1987. I've attended first ministers meetings with four prime ministers in the chair.
I set this out because it's been suggested that I'm part of someone's political agenda. I serve the government of the day.
Regarding the discussion at the standing committee on February 21, my comments about the ethical conduct of the government—and previous governments, for that matter—were not motivated by a desire to burnish its image. I have spent thousands of hours with politicians and political staff from all stripes, and from personal experience, I am in a unique position to attest to Canadians, through you, that they are well served by the women and men who work in the offices of the people they elect.
Since I was last here, there have been a few developments. One is that several people have suggested I am more political than a public servant should be. I hope I've clarified that I understand my role in government. The other development is the waiver, and that the former attorney general has testified. I will not respond to all of her evidence, but I do want to make a few points before we begin questions.
My understanding is that one purpose of deferred prosecution agreements is that corporate criminality does not devastate workers, pensioners, suppliers and others who did nothing wrong. This is in the Criminal Code and it is part of public interest considerations. In speaking to the Attorney General in December, I was giving her contextual information about the SNC-Lavalin matter directly relevant to a decision she had to make.
In dealing with the public interest, the Attorney General's decision is never final. The public interest can evolve and change, and the impact of a decision to prosecute or not prosecute was evolving in this case. When I mentioned to the Attorney General on September 17 that there was an election in Quebec, I did not do so out of any partisan consideration. That is an unfair inference. It is a long-standing convention for the federal government to try to stay out of the fray of provincial election campaigns, and that the people of each province decide for themselves who they want to govern. In mid-September, based on the company's public-disclosure obligations, I was concerned that a purely federal issue could surface in the last two weeks of that rather heated campaign. It is my job to remind elected officials about those conventions.
The Prime Minister assured the Attorney General in my presence in September and in writing in December that the decision about prosecution was always hers to take.
On January 10 the cabinet shuffle was finalized, and the next day, in the context of calling five deputy ministers who were affected and would have to be ready by Monday, I called Madam Drouin and asked her to make sure that the new Minister of Justice and Attorney General would be brought up to speed on a number of prominent files that he would likely face questions about in the near future, perhaps as soon as the cabinet retreat in Sherbrooke, which would begin on Wednesday afternoon, two days after the swearing-in. I mentioned carbon pricing litigation, the Norman trial, TMX and SNC-Lavalin. I don't know if the deputy attorney general will agree with my recollection, but I never singled out SNC as the only issue, and it would be a misreading of my conversation with her to suggest it was.
I stand by my testimony of February 21.
I note that, after the former Minister's testimony on February 27, the following facts are not contested. She was always the decision maker. She was assured multiple times that she was the final decision maker. The former Minister agreed that entering into a Deferred Prosecution Agreement would have been entirely lawful.
The former minister maintains that her decision, a decision to take no action, was final in September. But she had the ability, as new public interest considerations emerged, to reassess the context and re-examine her reasoning. That is the most she was ever asked to do.
I repeat my contention that the minister experienced lawful advocacy to consider doing something lawful in the public interest. I made no threats, veiled or otherwise, that the minister's decision would lead to consequences for her, and my position could be captured at all times by the well-known phrase
"non-ingerence, non-indifference".
lt is my contention that the Minister was doing her job and I was doing mine.
As has the former minister, I have sought legal advice about what I can and cannot say today, and I've been advised not to opine on the minister's reasoning or state of mind, because some of the issues are or will be before the courts.
My recommendation to the committee would be to develop an all-party report proposing improvements to the law around deferred prosecution agreements. Your recommendations could be adopted by the House in a single sitting day and become law before the end of this Parliament.
This committee may also want to further explore the potential separation of the Attorney General function with a view to informing Canadians. Doing so would permit each party to take a clear position on this matter during the imminent election campaign. This is a profound change that could have consequences, intended and unintended, for decades to come, and it should not be rushed.
Finally, this is the Justice committee, and the committee may wish to hold hearings on the Attorney General of Canada's directive on civil litigation involving indigenous peoples, which she issued on January 11, 2019, effectively her last day on the job. This directive to all Government of Canada litigators could mark a profound change in Canada's legal landscape. However, it could be repealed or gutted at the stroke of a pen, and all that work turned to ashes, so I think now that all political parties need to be clear with Canadians on the future of that directive.
That is my opening statement. I'd be happy to take questions from the committee.
2:20 p.m.
Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office
Thank you for your patience.
2:20 p.m.
Nathalie Drouin Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
Good afternoon.
I would like to thank the members of the committee for allowing me to make this opening statement.
My opening remarks will address my role and responsibilities as Deputy Minister of Justice and Deputy Attorney General of Canada, my professional relationship with the Hon. Jody Wilson-Raybould and my chronology of events.
As Deputy Minister of Justice and Deputy Attorney General of Canada, I support the Minister of Justice and Attorney General and the government in the development of their policy objectives. ln the exercise of my duties, my vision has always been the provision of high-value legal services.
I encourage Justice Canada legal staff to build on the traditional role of legal professionals so that the role is one where legal professionals and clients form a strategic alliance, working as partners focused on finding solutions and delivering results.
In my role, I have the privilege of working with highly competent and impressive individuals. The former minister and attorney general and I had a very positive working relationship. I commend her for what she brought and brings to Canada in her role in public office. I can tell you that I learned a lot working with her, especially in terms of indigenous issues and law-making. In fact, we continue the work she began at Justice Canada by taking a new approach to indigenous litigation.
I hold myself and my staff to the highest standards of providing non-partisan advice. My role in supporting the Minister of Justice and Attorney General demands that I uphold the values and ethics expected of me, both as a public servant and as a lawyer.
I would like to begin by describing my dual role as the deputy minister of justice and deputy attorney general. I have been in this position since June 2017. In both of these roles, I support the Minister of Justice in fulfilling his or her responsibilities. My functions include giving legal advice and coordinating the legal advice given by the Department of Justice, supporting the development of legislation and policy that fall within the Justice portfolio, as well as acting as the formal representative of the Crown in all civil litigations involving the Government of Canada.
In addition to my support, the Attorney General of Canada is also supported by the director of public prosecutions, who is also a deputy attorney general of Canada. The DPP and I do not report to each other. It is not my role to discuss specific prosecutions with her and I have not discussed the substance of the SNC-Lavalin prosecution with her. However, I do provide advice to the Attorney General of Canada in her or his decision-making as to whether or not to issue directives to the director of public prosecutions or to assume the conduct of a federal criminal prosecution. In such situations, I approach giving legal advice in the same way I would when giving advice on any other statute, but with careful attention to the distinction between my job and the job of the DPP.
Mr. Chair, I would now like to provide the Committee with a detailed account of my interactions on this file, as is permitted by the scope of the Order in Council that was enacted by the Governor General in Council on February 25, 2019.
ln order to provide you with this account, to the best of my ability, I have reviewed my emails, files, and agenda. I have not consulted with Ms. Wilson-Raybould, the Hon. David Lametti or their staff or anyone outside of the Department on facts that are my own.
My account will include details of the discussions that I had with the former Attorney General respecting the exercise of her authority pursuant to the Director of Public Prosecutions Act.
On September 4, the Department became aware of the Director's position to continue with the prosecution of SNC-Lavalin. I would like to clarify that I do not know how or when the Director's position was shared with SNC-Lavalin.
As I mentioned, I have reviewed my calendar to my best ability. My calendar indicates that on September 5th I had a phone conversation with Paul Rochon, Deputy Minister of Finance; however, I cannot recall whether we talked about this file, another file, or both.
ln addition, from what I can recall, the first discussion that I had with Ms. Wilson-Raybould on this file was late in the afternoon on September 5th. The purpose of the call was to discuss another file, but from what I recall, SNC was also discussed on the margins. The former Attorney General was in Fiji and there was a 17-hour time difference.
Two of her staff members, Jessica Prince, Chief of Staff, and Emma Carver, Policy Advisor, joined the call. We agreed that the department would provide advice on the role of the Attorney General, for her consideration. I told them that the department had begun working on the advice the evening before.
For the next two days, September 6 and 7, my officials and I developed the written advice. I also provided verbal advice to the AG's staff, Emma Carver and François Giroux, on the Attorney General's powers under the Director of Public Prosecutions Act.
I advised that it would be very important for the Attorney General to be comfortable with the director's position to not pursue a remediation agreement. I emphasized that the Attorney General was entitled to receive as much information as she considered necessary from the director.
It was during the course of these conversations with Emma Carver and François Giroux that they read to me the extracts of the section 13 letter from the DPP.
For clarity, a section 13 letter from a DPP to the Attorney General is to “inform the Attorney General in a timely manner of any prosecution, or intervention that the Director intends to make, that raises important questions of general interest.”
As I have explained to the committee, in fulfilling my role as deputy AG, I am very careful to separate my role and responsibilities from that of my counterpart, the director of public prosecutions. As I have mentioned, I have no role in specific criminal prosecutions. I am not privy to any of the evidence. This is why I refused to review and receive the section 13 letter.
It was during the same conversation that Emma Carver informed me that she was drafting a document that she intended to provide to her counterparts in the Prime Minister’s Office. I was also told that the Attorney General was not keen on the idea of exercising her authorities under the DPP Act.
In her testimony, the former minister mentioned that I had conveyed information from the Department of Finance. To clarify, on September 7, I spoke with the deputy minister of finance, Paul Rochon. He had questions regarding the decision-making process and the roles and relationship of the AG and the director of public prosecutions.
Also on September 7, I spoke to the former attorney general's chief of staff and provided her with a verbal outline of what we were drafting for the AG's consideration.
On September 8, I provided a draft opinion to the former AG's office. The opinion is entitled “The power of the Attorney General to issue directives and to assume conduct of proceedings”. The opinion begins with a discussion of the Attorney General's independence and her ultimate responsibility for criminal prosecutions. It describes the role of the DPP in much the same way I have explained to this committee. It also describes the power to assume conduct of a prosecution and the power to issue directives.
The opinion also provides advice to the AG on the role of the DPP, and that the AG is entitled to receive information from the DPP in order to understand a decision.
Various options are set out for a situation in which the AG either disagrees with the director's position or wishes to further assess the decision. These options include the issuance of directives that direct reconsideration or appoint a specific prosecutor to reassess.
Another option covered is for the AG to decide to assume conduct of a prosecution, consider whether statutory conditions for remediation agreements are met, and, if so, to appoint an agent to negotiate such an agreement.
The legal opinion also canvasses the possibility of seeking outside advice with respect to the AG's powers under the act and the Criminal Code in order to assess whether the conditions for a remediation agreement are met.
The legal opinion advises that the relevant constitutional and statutory framework prioritize independence and transparency, and that any decision by the AG is hers to make, independent of the political considerations or processes.
There is also a short discussion of the deference by courts to prosecutorial discretion, which can be reviewed only for abuse of process.
I would like to bring some context to this part of my remarks. While I have been at Justice Canada for almost three years, as you know, I also worked in Quebec in similar roles. During that time, I gained expertise in this area and I have faced similar situations where decisions of a DPCP were publicly challenged and where an AG was called upon to act. I appropriately brought this professional experience and expertise to bear on the advice my department provided to the AG in this matter.
On September 10th, the Department responded to two follow-up questions that we had received from the Attorney General's office as a result of the draft advice.
On September 11th, the Attorney General's acting Chief of Staff, Francois Giroux, informed me by email that the AG was not intending to intervene in the case and that she would be pleased to discuss it.
On September 12th, the Department of Finance indicated to me that SNC-Lavalin was still in discussions with the DPP. I therefore understood that the DPP's position on whether to invite SNC to negotiate a remediation agreement was not final.
On September 12 or September 19—I would like to be more precise, but I don't have any evidence of that—a discussion occurred with the Clerk on the margins of a weekly meeting that we call the “DM breakfast”.
I recall that I had a discussion with the Clerk in which we discussed the role of the AG and the options that the AG had available to her, as well as the DPP's role and my role.
On September 16, I had a call with PCO in which we would also have discussed the advice on the AG's role and options.
To the best of my recollection, my first face-to-face meeting with the former attorney general on this file was September 17, and I believe we may have only briefly discussed it on the margins of another meeting.
I also saw the minister on September 18 and 19. On September 18, the only purpose of the meeting was for the minister to debrief on her meeting the day before with the Prime Minister. I do not recall her specific words, but I remember her telling me that the Clerk was present. She also expressed to me that she was not comfortable with the content of this conversation.
On September 19, during my bilateral meeting in the afternoon with the former AG, she told me that she had just had a discussion with the Clerk. During the same meeting, I clearly recall that the former AG said to me that this would be the last time we discussed the SNC-Lavalin matter, and she also instructed me not to have any discussion with the DPP.
To the best of my knowledge and to be clear, after September 19 I did not have any further involvement in this file with the minister or her staff, with two exceptions.
The first of the two exceptions occurred on October 19th when the application for judicial review of the DPP's decision was filed with the Federal Court. As would be regular process where there is an application for judicial review, officials in my department discussed with the DPP who should appear on behalf of the Crown.
The second exception occurred near the end of October. I do not have the exact date. The Privy Council office asked my department for an opinion on the potential impacts on SNC-Lavalin if the prosecution were to result in a criminal conviction. My department developed the draft legal advice. lt was not provided to PCO at the request of the Minister's Office.
Finally, before completing my chronology, I would like to return briefly to the time I first became aware of the January 14 shuffle. Again, I would like for the report to say that I haven't discussed this testimony with the Clerk.
On Friday, January 11, the Clerk of the Privy Council called to inform me of the upcoming shuffle. I was not told who the new minister would be. I proactively asked the Clerk what areas or files I should be preparing to brief the new minister on. The Clerk identified briefing the new minister and Attorney General on roles and responsibilities as the primary need. This indicated to me that we were going to be receiving a first-time minister.
The Clerk also recommended that I brief the new minister on indigenous files because the Prime Minister could ask the new minister to attend a meeting with indigenous organizations early the next week. He also recommended briefing the minister on current issues, including remediation agreements and SNC.
As you are aware, SNC-Lavalin had sought a judicial review of the DPP's decision, so it was a live issue for the new minister to be made aware of. To brief the new minister, I developed, with the assistance of my immediate team, a briefing handbook, which I am tabling here today.
I think you have the documents, in English and French, to distribute to the members of the committee.
You will notice in the handbook that the remediation agreement is also included.
It was in this context that on the afternoon of January 11, I informed Jessica Prince, who I thought was remaining as the chief of staff, what we would need to brief the new minister on.
Thank you for your consideration. I know I have slightly exceeded my speaking time.
I am now prepared to answer your questions.
2:35 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you for your testimony.
Thanks to both witnesses.
We will go to questions. We will do two rounds. We will see where the time is and ask people if they wish to continue for a third round.
Round one is six minutes to the Conservatives, six to the Liberals, six to the NDP and six to the Liberals.
Mr. Cooper is first.
2:40 p.m.
St. Albert—Edmonton, CPC
Thank you, Chair. I will split my time with Monsieur Berthold.
2:40 p.m.
St. Albert—Edmonton, CPC
Yes, thank you.
Madame Drouin, when you briefed the current Attorney General, did you advise him that the former attorney general had made a decision not to overturn the decision of the DPP?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
As you will know, there are a lot of things in the transition book. Whether or not I brief the new minister on specific subjects is not covered by the waiver, but I think you can have a flavour of it in the first briefings I had with him.
2:40 p.m.
St. Albert—Edmonton, CPC
Thank you for that.
Mr. Butts, in his testimony, made reference to a legal memo from the Department of Justice that recommended seeking outside legal opinion. Is that memorandum the opinion that you made reference to on September 8?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
This is my understanding, yes.
2:40 p.m.
St. Albert—Edmonton, CPC
Who would that have been sent to, aside from the former attorney general?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
As I told you, the opinion was first sent to the minister's office on September 8. I know my teams forwarded it to the Privy Council Office and to Public Services and Procurement Canada around October 10 or 12.
2:40 p.m.
St. Albert—Edmonton, CPC
Was it sent to anyone in the Department of Finance, in Minister Morneau's office?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
Not that I know of.
Nevertheless, as I said in my opening remarks, I have discussed roles and responsibilities and authorities that an AG has under the DPP Act with my colleague at Finance.
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
I don't have direct contact with the PMO, but as I said, my office sent it to the PCO.
2:40 p.m.
St. Albert—Edmonton, CPC
In terms of the decision of the DPP, there was some suggestion that Ms. Wilson-Raybould could have put something in writing if she decided that she did not wish to overturn that decision, but in her not doing anything, would you agree that the decision of the DPP would stand?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
When an AG takes a decision on whether or not to exercise his or her authorities under the DPP Act, there is no obligation to have reasons and to have written documents for that.
2:40 p.m.
St. Albert—Edmonton, CPC
Then in her not acting, the DPP decision would stand, right?
2:40 p.m.
Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice
That's the conclusion. If they don't exercise...the DPP decision stays.