Justice Committee on March 6th, 2019

[Nathalie Drouin]

As I said, I cannot have an opinion, because to form an opinion on whether or not a DPA or a remediation agreement is an option on a specific case, you have to be aware of the evidence. I have never been aware of the evidence.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I guess I'm wondering if the fact that the DPP has made a decision would in any way preclude the AG from taking action.

[Nathalie Drouin]

Thank you for making your question a little bit clearer for me.

No. The AG, as I said, has authorities under the DPP Act to intervene, to issue directives or to decide to assume the conduct of specific prosecutions, but it's her decision, as I said at the beginning, to decide whether or not to use those authorities under the act.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would such an action on behalf of the AG in any way constitute interference?

[Nathalie Drouin]

The fact that an AG decides to exercise her authorities under the act is not an interference, because they are powers provided under the act, especially if we respect the parameters. The first one is to have a consultation with the DPP before exercising any authority, and the second one is to publish the directive or the decision in the Canada Gazette.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

To go back to the memo—

[The Chair, Liberal, Anthony Housefather]

That's the last question, Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair.

In that memo, was there any recommendation to undertake consultation with other government departments that might be affected?

[Nathalie Drouin]

No. The memo didn't contain any recommendations.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin is next.

[Murray Rankin, NDP, Victoria, BC]

Mr. Wernick, when you testified here previously, I thanked you for your 37 years of public service to Canada. I reiterate that today.

I live in Victoria, B.C. It will be no surprise to you that there are many retired senior public servants from the federal government who have called me over the last while. I have to tell you, sir, that to a person they have expressed deep concern about the line that I suggest you've crossed.

Today you said that you never give partisan advice, you don't engage in partisan activity, you're not part of someone's partisan agenda and you're not motivated by burnishing a politician's image.

However, when you appeared before us the last time, you did the following. You started by talking about an “assassination”. You talked about fear for your country, which Professor Wes Wark characterized as the “politics of fear”, and then you turned and delivered extemporaneous praise for Minister Carolyn Bennett. Finally, today you brought in a number of social media comments that, with great respect, have nothing to do with what's before us.

Mr. Gordon Robertson, the dean of clerks, said this in a 1971 article: “The Prime Minister’s Office is partisan, politically oriented, yet operationally sensitive. The Privy Council Office is non-partisan, operationally oriented, yet politically sensitive.”

The Clerk and the PMO must keep out of each other's way.

Sir, with great respect, how could we have listened to your testimony last time and, if we believe Madam Wilson-Raybould's testimony, not do anything but conclude that you have in fact crossed the line into partisan activity?

[Michael Wernick]

I can only repeat that I state categorically that I have never given advice or done anything for partisan purposes that would suggest to advantage one political party versus another in the political arena.

[Murray Rankin, NDP, Victoria, BC]

Then we're to assume that the attempt to change the channel last time so that the headline would be about assassination and the like, and the attempt to talk about a minister who has nothing to do with this matter and how terrifically she's served Canada—these were just things you wanted to get off your chest at a discussion of the Shawcross principle?

[Michael Wernick]

I was aware of the punditry, media and social media traffic that had been triggered around this issue. I stand by every word I said in the opening statement. They come from a deep place of concern about this country, and I repeat them. I have had the highest security clearances of this country and I am deeply worried about foreign interference in the election. If that was seen as alarmist, so be it. I was pulling the alarm. We need a public debate about foreign interference.

I am never accepting that we would normalize the cyber-bullying of political officials. I have been exposed to it. It upsets me, and it angers me. I am upset by the trolling that took place of Minister Bennett. I stand by that. That was not to the partisan advantage of the Liberal Party. I deplore the cyber-bullying of politicians of all stripes.

[Murray Rankin, NDP, Victoria, BC]

So do we all, although what that has to do with this is a little unclear.

[Michael Wernick]

It may have to do with the intimidation of a witness.

[Murray Rankin, NDP, Victoria, BC]

On December 19, 2018...a number of comments were made about you by Madam Justice Wilson-Raybould, and I would like to give you the opportunity to refute them.

Number one, you're quoted as saying, “I think he is going to find a way”—speaking about the Prime Minister—“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.”

Did you say that, or words approximating that?

[Michael Wernick]

I do not have an independent recollection of the event. I did not wear a wire, record the conversation or take extemporaneous notes.

[Murray Rankin, NDP, Victoria, BC]

Words like that wouldn't have stuck in your mind.

[Michael Wernick]

That is not my recollection of the conversation.

[Murray Rankin, NDP, Victoria, BC]

Then she said she warned you, in this call, as follows:

[W]e 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.

Does that sound right?

[Michael Wernick]

I do not have contemporaneous notes or a recording of that conversation. I recall the sentiment, and I agree with it. Nobody was ever asking her to do anything for partisan reasons.

[Murray Rankin, NDP, Victoria, BC]

Earlier in her testimony, she said:

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....”

Can you not see that she might reasonably interpret those words, if they were in fact said, as code—as a sinister effort to get her to change her mind? Couldn't a reasonable person hear that and conclude, as she did, that it was very much a veiled threat?

[Michael Wernick]

I am in no position to comment on what was in the mind of another person. I can only comment on what I was conveying to her, which was context and public interest considerations on a decision that was entirely hers to make.

[Murray Rankin, NDP, Victoria, BC]

It was entirely for her to make, but you certainly tried, it seems to her, to change her mind in a way that would cross the line we're here to explore. She took it as a veiled threat. When I read it back to you, I think a reasonable person could likewise infer that it was a veiled threat. It seems to me, sir, that you very much crossed the line in respect of an independent attorney general.