Justice Committee on March 6th, 2019

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

I identify myself to Mr. Wernick as someone who has stated publicly that he transgressed the line.

I would suggest, and maybe you can agree, that when we use the word “partisan”, I would never suggest for a moment, Mr. Wernick, that you were a strong lifetime Liberal or strong lifetime Conservative. I think your evidence is consistent with being willing to interfere in partisan fashion for whoever is in power.

My question to you is: Had you ever met Frank Iacobucci in the context of anything in the four months that has been described to us by Jody Wilson-Raybould's testimony? Did you have a chance to talk to him in that four-month period about anything?

[Michael Wernick]

No. I do remember that he attended the Sherbrooke cabinet meeting, as I did. I crossed him in the hall. I came over and greeted him because I know him. I have never had a conversation with Mr. Justice Iacobucci about these matters.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

In your previous history of public service, for a remarkably long time you were deputy minister at the Department of Indian and Northern Affairs, and our former attorney general, of course, was a prominent indigenous leader with the B.C. Assembly of First Nations.

Did you have any relationship with her prior to her time as attorney general, in that context?

[Michael Wernick]

Yes. I met her as early as 2006, when I started working at INAC. I attended assemblies of B.C. chiefs. I was a co-panellist with her at academic conferences. I was a co-panellist with her at a number of meetings. We've had breakfasts and lunches. We've had an ongoing conversation.

I had relationships with indigenous leaders right across the country in order to do my job, and as I said in my testimony, I considered the former minister an ally in what we were trying to accomplish, a colleague and a friend.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

In the context of your evidence here today, we had a discussion about it being cut-and-paste language from the OECD agreements about how to understand the term “national economic interest”, but it is clear that subsection 715.32(3) says that the public prosecution must not consider the national economic interest as a factor.

Isn't it a fair inference from that that you would not consider a jobs argument in deciding whether to bring a public prosecution or not?

[Michael Wernick]

That's not my reading of the law. My understanding is in this context, “national economic interest” means domestic as opposed to the interests of other countries. I repeat that I believe the impacts on jobs, suppliers, customers, pensioners and communities are a legitimate public interest consideration.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

In the public interest then, Mr. Wernick, in preparing advice to cabinet, what work did you do to assess the threat to jobs? Did you look at the commitments made to the Government of Quebec not to move headquarters, as mentioned? Did you look at the current financial status of SNC-Lavalin? Did you in fact have an independent assessment of whether there would be any impact on jobs from a decision to proceed as the director of public prosecutions had decided to proceed?

[Michael Wernick]

No, because the file was entirely in the carriage of the then minister of justice.

[The Chair, Liberal, Anthony Housefather]

I'm sorry, but the time has expired.

Mr. Plamondon, it's your turn.

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Thank you, Mr. Chair.

Earlier we talked about the Privy Council Office's request for a legal opinion that you moreover prepared—you said so earlier—and that, at the minister's request, you didn't forward to the Privy Council Office.

Now that the minister is no longer here, could you send us that legal opinion so the committee can take note of it?

[Nathalie Drouin]

Are you talking about the legal opinion on the impact of the criminal conviction against SNC-Lavalin?

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Yes.

[Nathalie Drouin]

I can take note of your request, but I'll have to review it and request an opinion before providing that document to you. It's still in draft form. So I'll have to seek advice before answering you, but I promise to look into that possibility.

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Something has been bothering me since these discussions started. In eight days after returning from a trip, the minister decides to paint yourself into a corner: she decides to start a prosecution and accepts no advice.

You offer her the option of seeking an outside legal opinion and you tell her she can even discuss the case directly with the prosecutor. However, she accepts no advice and stubbornly maintains that she will go to trial.

A little later, SNC-Lebanon loses $1.6 billion in three months, and its stock falls 35%. That doesn't prompt her either to consider whether she might perhaps reconsider the matter.

Did she give you a reason why she remained so resolute in her decision, not wanting to listen to anyone?

[Nathalie Drouin]

Earlier I said that respect for the independence of their office is very important for the minister and attorneys general. That's why they are so guarded in the exercise of their decision-making authority.

I also answered the question by saying that, in my opinion, based on what I understood, she felt she had no leeway in exercising her authorities under the Director of Public Prosecutions Act that would not have been perceived as political interference.

[Louis Plamondon, Bloc, Bécancour—Nicolet—Saurel, QC]

Even though, a year earlier, she had voted for the bill that allowed it?

[Nathalie Drouin]

In fact, there are two elements.

The remediation agreements regime that the bill introduced into the Criminal Code is a tool that is granted to the director of public prosecutions.

The options that the Department of Justice proposed to the minister were to exercise, or not to exercise, her authorities under the Director of Public Prosecutions Act, that is to say, to intervene in a decision or overturn a decision made by the director of public prosecutions not to offer a remediation agreement.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to the next speaker.

Mr. Weir, the floor is yours.

[Erin Weir, Independent, Regina—Lewvan, SK]

Thanks very much.

Mr. Wernick, in your opening statement you indicated that the former minister agreed that entering into a deferred prosecution agreement would have been entirely lawful. My understanding of Ms. Wilson-Raybould's testimony is that she did not believe that SNC-Lavalin was eligible for a deferred prosecution agreement under Canadian law. I wonder if either or both of you could shed any further light on whether SNC-Lavalin would have been eligible for that provision.

[Michael Wernick]

What I meant by lawful was that it was an option available to the minister under legislation passed by this Parliament. There was nothing illegal about a deferred prosecution agreement. It's a lawful instrument and an option that was always, and still is, available to the Minister of Justice.

[Erin Weir, Independent, Regina—Lewvan, SK]

Fair enough.

Do either you or Ms. Drouin have any view on whether SNC-Lavalin would have qualified for the provision that is in the legislation?

[Michael Wernick]

I have no line of sight to the evidence and the arguments. That is a decision that is entirely, 100% in the hands of the DPP and the minister.

[Nathalie Drouin]

I would just add that the offences that SNC-Lavalin is facing are covered under the remediation agreement regime, but as the Clerk said, whether or not this tool is available on a specific case is the decision of the DPP.

[Erin Weir, Independent, Regina—Lewvan, SK]

On the possibility of separating the Minister of Justice portfolio from the Attorney General portfolio, Mr. Wernick, you said that it's not a decision to be taken lightly, that there should be more study, and that you might have views to present as part of such a study. Given that you're in charge of the machinery of government in this country, I'm wondering if you have any views that you could present today.

[Michael Wernick]

I think that if you're going to go down this road—and I do think it's a productive thing to go down—then you'd have to look at Australia, New Zealand, the United Kingdom and provincial governments and ask yourself where has it been done and where has it not been done.

My general comment on machinery changes is that you trade one set of issues for another set of issues. There are consequences that are intended and there are unintended consequences. The people who make decisions on machinery—who are actually you, in passing legislation—have to decide which set of issues they'd prefer to have.