Madam Speaker, it is an honour to rise today on what is a fundamental issue in our democracy, which is the constitutional convention of an independent attorney general. Unlike some of the speeches we have heard today where people suggest it does not matter to constituents, be assured, it matters to mine.
This may not be the kind of issue, like climate change or the housing crisis, that everyone will say is on the top of their list, and that is not surprising. Because it is such a bedrock principle of our democracy, people in Canada happily take it for granted. They do not take it for granted in places like China, or in banana republics, but they expect an independent attorney general to act in that way. I will be saying in the course of my remarks just what this convention entails and ask the House whether or not this matter does not deserve a full inquiry.
We can see there are two parts to the NDP motion I presented today. The first one deals with the solicitor-client privilege. The government would have us believe this is somehow too complicated for Canadians or parliamentarians. I will try to refute that during my remarks.
The second principle is that the government be urged to launch a public inquiry under the Inquiries Act to give Canadians the transparency and accountability promised by the government when it was running for office in 2015, because this is all about what happened and whether the Canadian public has a right to know. That is why it is such a fundamental issue.
I want to say at the outset that these are allegations of improper interference. I have no knowledge of what happened and neither do most Canadians. What we do have a right to know is the circumstances that have occurred, where two resignations have happened, one by the most senior political person in the PMO, namely the principal secretary to the Prime Minister, and the resignation by the former attorney general herself.
Canadians are asking what happened and why it matters. I am anxious for Canadians to use the justice committee, of which I am honoured to be the vice chair, as the vehicle to at least find out whether there was anything improper in the circumstances. I am not here to say there is anything improper. I do not know, but I do think Canadians deserve answers. The place to do that is the justice committee, at least initially.
For reasons I will describe, we also need an inquiry in the same way the Gomery inquiry was established under the Inquiries Act of Canada. It allowed for a number of things to be unearthed. That changed the course of our Canadian political history. This may or may not be in that category, and that is exactly why we need to know.
The question about solicitor-client privilege is not as complicated as the government would want us to think. Reasonable people can understand legal principles, and the question of whether or not the government can waive that privilege, whether that be the Prime Minister or the government at large, the Governor in Council if you will, is of course without question. The government can waive the privilege. Indeed, many prominent lawyers I have spoken to have said the government already has waived the privilege because the Prime Minister told us that he did not direct the former attorney general to do anything vis-à-vis SNC-Lavalin and the remediation agreement at issue. Therefore, it is already waived in the eyes of some.
Whether that is true or not, there are fundamental principles. The Shawcross doctrine, which we will come to, may or may not have been transgressed. I do not know. That is exactly why we need to have an inquiry. We need to start with the justice committee, and we need to have a full public inquiry so Canadians can see the state of their democracy at this moment in time.
The allegations are, of course, well known. We have had media reports, admittedly by unnamed individuals, whistle-blowers perhaps, that the Prime Minister or senior staff in his office pressured the former attorney general to interfere with a decision of the independent Public Prosecution Service to deny SNC-Lavalin a deferred prosecution agreement, sometimes called a remediation agreement, for charges of corruption or fraud relating to bribes paid to officials in Libya under the Gadhafi regime many years ago.
The Prime Minister's first line of defence was “I did not direct the former attorney general to do anything”, but of course that is not the issue; the issue is whether or not improper pressure was exercised.
Second, the Canadian public wants to know why she has chosen to resign and why she did a rather unusual, if not unprecedented, thing when she decided to put a letter out to her constituents and to Canadians saying that she was speaking truth to power now and wanted to assert the importance of an independent Attorney General. Then a few weeks later, she resigned even from the position that she was assigned in cabinet, namely the Veterans Affairs portfolio.
Canadians want to know why. Why did she feel she had to say that, and then why did she ultimately resign? Yesterday, why did the principal secretary, the leading official in the Prime Minister's Office, also say he had to resign? The line he used was that it was because he was becoming a diversion, and I would not deny that.
The Prime Minister removed her from office as justice minister, and people are asking serious questions as a consequence. Professor Craig Forcese has written a very helpful article on the whole public law aspect of this matter. He starts by saying that there are different degrees of influence that a government can exert on an Attorney General.
There is nothing wrong whatsoever in asking advice of cabinet colleagues. Indeed, as Lord Simon in the United Kingdom said, sometimes you'd be a fool not to do so, but where you cross the magic line of the Shawcross principle, first established in the 1950s and now the law in Canada as well—a constitutional convention, in fact—is that one cannot pressure or exert undue influence on the Attorney General. At the end of the day, he or she has to stand up and say, “The decision to prosecute or not to prosecute was mine alone. That decision to go into a remediation agreement or not, to tell the director of public prosecutions to do thus or so—that was my decision and mine alone.”
Obviously, someone thinks there was a problem here, including the former attorney general, who was removed from her office and then subsequently resigned. Canadians want to know why.
Why is the government, with its avowed commitment to transparency and accountability, not anxious to have her and Mr. Butts, the principal secretary, speak and tell their side of the story to clear it up? Maybe there is nothing here, but for the government to not want that to happen causes reasonable people to be concerned and to ask questions.
That is all that this motion is designed to do: to ask the government to please waive any privilege it thinks it has and that she might think she has and let her speak. Let her tell her side of the story, and also allow us to hear from the other side, the other alleged protagonist in this drama, Mr. Butts, and others who work for him in the Prime Minister's Office. Why would the government not welcome that? That is what is confusing, and it is actually adding fuel to this fire.
As Professor Forcese says, there are degrees of influence, and it matters whether it is pressure or whether it is direction. Canadians might be wondering why this matters and why it is is such a big deal; it is because we cannot have partisan or political considerations in supervising prosecutions. It simply cannot be done if we are going to keep the convention of an independent prosecution, of an independent law officer of the Crown, which is what the Attorney General is.
In some democracies, such as England, the role of the Attorney General is separate. In that system, the role played by our Minister of Justice is played by the Home Secretary, so important is it that the Attorney General be seen to be outside political influence. That is what some countries do.
We have seen south of the border, with Mr. Trump and Mr. Comey, how that plays out. We in Canada have been proud, and justly so, of an independent prosecution service, and now people want to know if there were any problems that occurred in this circumstance.
In 2002, in the Supreme Court decision of Krieger v. Law Society of Alberta, the Supreme Court said:
It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.
That is why it is a big deal. Was there anything that crossed that line, the Shawcross line? As we heard in the eloquent speech of the deputy opposition leader and justice critic for the official opposition, what is at the bottom line here is the rule of law.
The Attorney General owes her ultimate loyalty to the rule of law, not to the government of the day. That is a bedrock constitutional principle in our country that we sure hope was not transgressed in circumstances when pressure may have been exerted to enter into a deferred prosecution agreement when it was clear that the director of public prosecutions, that independent officer, did not think it was warranted. Our Attorney General appears to have not thought it was warranted either; then, poof, she was removed from her cabinet role in that regard.
Is that a problem? I do not know that it is or is not. I need to understand further.
Professor Forcese concluded as follows:
At risk of being very wrong, one might infer that people in the [Attorney General's] office thought a line had been crossed – someone was, after all, the Globe [and Mail's] source [for the story that led to this bombshell]. But if a clear Shawcross line was crossed, the expectation would then be that the [Attorney General] would resign.
Of course, that did not happen initially, but then eventually it did.
The government members have been speaking about just how difficult this whole solicitor-client business is, and about the independence of the prosecutorial function being so difficult and so forth. The late Mr. Justice Rosenberg of the Ontario Court of Appeal wrote down what he thought the five components of the Shawcross principle were. He said:
[T]he Attorney General must take into account all relevant facts [in making a decision to prosecute] including the effect of a successful or unsuccessful prosecution on public morale and order.
It is perfectly legitimate, in other words, to take those into account.
Mr. Rosenberg continued:
Second, the Attorney General is not obliged to consult with cabinet colleagues but is entitled to do so.
That is no problem. He went on to say:
Third, any assistance from cabinet colleagues is confined to giving advice, not directions.
That is why, presumably, in his first original line of defence, the Prime Minister talked about direction so categorically.
Mr. Rosenberg continued:
Fourth, responsibility for the decision is that of the Attorney General alone; the government is not to put pressure on him or her.
That is the point.
Fifth, and equally, the Attorney General cannot shift responsibility for the decision to the cabinet.
Nor, I dare say, can responsibility be shifted to anybody else.
Having explained the Shawcross principle and explained for Canadians why this is such an important question before us, now we can talk about what to do about it.
We have asked, and I join the official opposition in that regard, for a justice committee to hear from the key principals in this story. We should invite our colleague, the now former veterans affairs minister and former attorney general, the Vancouver Granville MP, to come and tell her side of the story.
She is getting advice from an eminent former Supreme Court justice, the Hon. Thomas Cromwell, and we hope that some advice is provided that would let her feel comfortable in coming and telling Canadians her side of the story.
We have asked for that, and so far, sadly, that has not happened. The government members on that committee have somehow thought this was just politics, that there was nothing to see here, so drive on. They may be right, but why on earth would they not let us find out so we can put our minds at rest? The government members of the committee then, of course, accuse us of being partisan when we want to do our job as parliamentarians.
What else do we know? We know that there was a frenzy of lobbying for this particular company. It is an engineering company, so I would not be surprised if it was lobbying about bridges and roads and the like, but it was lobbying for something called justice and law enforcement, and that is a little unusual for an engineering company. It visited officials in the Prime Minister's Office 14 times over the period of a couple of years, 12 visits with principal secretary Butts and the Prime Minister's senior Quebec adviser, Mathieu Bouchard.
All we have asked for is for those two individuals to say what happened. Is that crossing some line? Are we somehow being irresponsible in wanting to know?
This is an unusual circumstance because, lo and behold, we soon thereafter had this brand new insertion in an omnibus budget bill, called a “deferred prosecution agreement”. I am not here to say that those are horrible and improper at all times—not at all. There may be a legitimate role for them, and I am sure that was brought to the attention of the director of public prosecutions.
However, Transparency International and others lobbied to make sure that if we were going to insert that section into the code, it did not allow the national economic interest to be taken into account. That is not a legitimate relevant consideration in granting one of these, so there is a question as to whether the DPA could even be appropriate in these circumstances. I do not know, and that, I gather, is still before the courts in some way.
Then the Prime Minister pivoted and said that he did not direct her at all, but that there was a resignation from cabinet by the former treasury board president, and had that not happened, she would still be Minister of Justice.
Hello? It seems a little odd in the circumstances to date that the sudden resignation would trigger all of this, and then yesterday his principal secretary decided to offer his resignation.
I salute Professor Donald Savoie of the Université de Moncton, who has written so much about the centralization of power in the Prime Minister's Office. I dare say that there are a lot of questions about whether it is the so-called board of directors of Canada that decides what goes on—what we used to think was the cabinet—or if it is really the Prime Minister's Office. I do not think a company of the sophistication and size and SNC-Lavalin would have been lobbying the Prime Minister's Office that many times if it did not also perceive that it had a lot of influence on cases of this kind.
It may be that the DPA is a legitimate exercise, but it is passing strange that we no longer have this individual in the cabinet and that individual in the Prime Minister's Office.
In all of these circumstances, I have to ask again: Why would the government not join us in trying to get to the bottom of this? Indeed, when the proverbial shoe was on the other foot, I note that the Liberals in opposition were anxious to have an inquiry before the Standing Committee on Access to Information, Privacy and Ethics in respect of Senator Duffy. They put forward a motion to the government of the day that that the committee be instructed to examine the conduct of the Prime Minister's Office regarding the repayment of Senator Duffy's expenses, that the Prime Minister be ordered to appear under oath as a witness for a period of three hours and that the proceedings be televised.
It is kind of interesting, now that the shoe is on the other foot, that this seems radical and wrong, but I want Canadians to remember it only because when Liberals were in opposition, they understood what the job of an opposition is. When our democracy may be under threat, when there is a possible breach of a constitutional convention, I expect Canadians to have parliamentarians join together and get to the bottom of it, regardless of partisan considerations.
