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.