Mr. Speaker, I rise today in support of the motion before us to compel the Prime Minister of Canada to appear before the justice committee to answer questions in this affair, which has grown and changed over the last couple of weeks in quite dramatic ways.
I would like to begin by indicating what I would like to say in my remarks by way of outline. I would like to provide a bit of history about how we arrived here and the changing narrative of the government side. I would then like to talk about the role of the independent Attorney General and how precious that is in our democracy. I would like to try to then refute the argument that somehow everything is fine because the Conflict of Interest and Ethics Commissioner is going to have carriage of this. Lastly, I would like to talk about the issue of deferred prosecution agreements or remediation agreements, which have been put into the Criminal Code quite recently, only coming into force in September of last year and which are at the centre of this issue.
With that in mind, I would like to talk about the sequence of events that has led us here.
A Globe and Mail story reported that there apparently had been pressure put on the former attorney general in respect of a criminal prosecution. The Prime Minister's immediate response, and there were many, was that he did not direct her to do a particular thing.
That wording is important, because I think it is common ground between the government and the opposition that directing an independent attorney general to do something with a criminal matter is wrong. It is in fact unconstitutional, violating one of the key constitutional conventions of our democracy, and that is that we have the right to an independent, not political, decision-maker when a person is going to be subject to criminal charges.
The Prime Minister started by saying that he did not direct her to do certain things. However, that was never the story in the first place. The story was that she was pressured to do certain things, and I will come back to that.
Then, of course, the clerk appeared last week to say that there was vigorous debate, but there was simply lawful advocacy, no inappropriate pressure. I will develop why this matters in a moment.
There is a convention, a decision, called the Shawcross principle, which was generated in 1951 by a labour attorney general in the United Kingdom. It talks about the line that cannot be crossed. That is now a part of Canadian law and is referred to as the Shawcross principle. That line is that it is absolutely appropriate, and in fact sometimes very desirable, to have an attorney general discuss matters with his or her cabinet colleagues, but the final decision has to be his or her decision alone. The question before us is whether or not there was pressure that crossed that line, which, of course, comes to what happened.
On September 4, an independent person called the director of public prosecutions communicated to a company called SNC-Lavalin that there would not be a deferred prosecution agreement, that she was going to proceed in her decision with a prosecution of this matter in criminal court. Thereafter, it appears that the former attorney general, who has the ability under the statute to reverse that, to give a direction to that person, decided not to budge. I do not think the law even applies here, as I will describe in a moment. However, even if the law did apply in these circumstances, it is not my judgment that there ought to be a deferred prosecution agreement in these circumstances. It is her decision and her decision alone.
Then what happened was that on September 17, this issue came up in cabinet with the Prime Minister. We have heard testimony to confirm that. On December 5, the Prime Minister's powerful chief of staff, Gerry Butts, confirmed that there was a meeting at the Chateau Laurier where this issue was discussed again.
We must remember that the decision of the independent director of public prosecutions had already been made and it was not to be changed, as said by the attorney general.
On December 18, there was a meeting between Katie Telford and Gerry Butts, of the Prime Minister's Office, and the chief of staff to the former attorney general on this topic.
On December 19, the Clerk of the Privy Council, the most powerful public servant in the country, Mr. Wernick, told us at committee that he needed to “check in” with her to give her context in a phone call. Then there was Christmas, as usual, in December, and then there was a cabinet shuffle. Mr. Brison decided that he would leave, as we all know. There were only a couple of people affected by that cabinet shuffle, one of whom was the former attorney general, who was removed from that position and, as everyone knows, shortly thereafter resigned from cabinet.
The issue is whether there was inappropriate pressure upon the former attorney general. If there was, there are those who would argue that there was an obstruction of justice. When there is interference, reasonably perceived by an objective person, with the administration of justice, that is obstruction. It is a serious criminal charge, and we need to get to the bottom of it.
The question then becomes, was there inappropriate pressure? Was that line I talked about crossed? Let us examine it for a moment. First, it would appear to a reasonable person that the former attorney general did feel that this pressure existed. Imagine how many times this issue came up after the final decision was made. Imagine how many different people, both in the bureaucracy at the highest level and in the Prime Minister's Office at the highest level, tried to speak to her about this issue. “What part of 'no' don't you understand?”, I hear her say. I was not there.
The Clerk of the Privy Council felt that he could advise us that, in fact, there was no inappropriate pressure. With the greatest of respect to an honourable senior public servant of great experience and service to Canada, how does he know? Was he at every one of those meetings? There were 50 meetings with people from SNC-Lavalin. There were 18 meetings with the Prime Minister's Office alone. He was not there, nor was he there when meetings with the former attorney general were taking place, out of earshot, at the Chateau Laurier or who knows where. With great respect, first, he does not know, and second, he is not the former attorney general and cannot tell us what she felt and inferred from that conduct.
Let us look at the objective standard of whether this line was crossed. There were so many different people and so many different conversations and so much relentless advocacy to change a position. What about the consequences for not doing so? She is gone. The government does not like to hear the word “fired”, so I will say that she was removed from that role. I guess there were consequences, some would infer, from that undue pressure. I would, but I want to hear from her.
That takes us to the justice committee. The parliamentary secretary made much of the fact that this independent master of its own procedure at committee is going to get to the bottom of this. Excuse me, but we tried to do so. We tried to get other people than simply the former attorney general to come to committee, and we were swatted down like flies. They said that maybe after they heard from her, they might allow us to hear from the other people, the only other people who can tell the other side of the story. One would think they would want that if they felt there was nothing going on here, but they do not seem to want that.
Maybe there is another theory. Maybe the straw that broke the camel's back in the mind of our former attorney general was that the government continued to have a yawning gap between the rhetoric and the reality of indigenous law reform. It is no secret that the former attorney general was pushing hard on that. She made a number of speeches that seemed to suggest that she was unhappy with that. Frankly, maybe this clumsy effort to pressure her in this matter and then to have her removed was the straw that broke the camel's back. I simply do not know.
We heard this morning from the hon. parliamentary secretary, and from the Prime Minister on many occasions and from the Clerk of the Privy Council at committee, that we should not worry. They are going to have an inquiry by the Conflict of Interest and Ethics Commissioner, and that is going to be good enough. With all due respect, it will not be good enough, because it is almost certain that there will not be anything found to be wrong in these circumstances, not because of the facts but because of the wording of section 9 of the Conflict of Interest Act, under which the commissioner has said he will do an investigation.
Mr. Dion, the investigator, said that he has “reason to believe that a possible contravention of section 9 [of the act] may have occurred”. Section 9 prohibits a public office holder from seeking to influence a decision by another person so as to improperly further another person's private interest, which is what he said he is going to look at. However, here is the punchline: All the other cases that have ever been decided by former commissioner Mary Dawson and others have said that there is nothing in the act to suggest that political interests are to be included in the concept of private interests. If it is money, okay, but if it is other things, no. Therefore, there is very little likelihood that it will lead Canadians any closer to the truth, which we must have in these circumstances. Frankly, it is not about the Prime Minister and interests. It is about whether there was interference with the independent role of the former attorney general.
What about these deferred prosecution agreements, which was what was at stake here? I have to say that there is a great deal of griping as to whether these agreements would even be applicable in these circumstances. I have mentioned that they have not been used, because they are brand new. They were put into an omnibus budget bill, which kind of sounds like the Harper government. At the end of a big budget bill, we had a couple of sections thrown in.
I was on the justice committee. We had a half hour or an afternoon on this particular section, and I can assure members that the words “SNC-Lavalin” were never mentioned. We had no idea that this was what was at issue. These things were described as important changes to deal with white collar crime.
Deferred prosecution agreements do have a role to play in our system, but they may not be applicable here, because there are certain conditions set out in the Criminal Code before they can apply. For example, one has to voluntarily disclose wrongdoing, admit corporate responsibility, make reparations to people, and so forth. Maybe there was just no way this square peg could fit into that round hole. It may just be that there was no way these even applied.
What would we expect an attorney general to do? “I would love to help you, but in fact, the law doesn't allow it”. The punchline here is that under the corrupt foreign practices legislation Canada has, if the defence says that it is going to be harmful to our national economic interest, it is not applicable. The whole lobby by SNC-Lavalin, this gigantic 50-times-they-met-people lobby, was to try to tell us about the national economic interest. Therefore, for a number of reasons, people are wondering whether the former attorney general was being asked to do something that was simply not possible or was, in fact, illegal.
What were they trying to do if that was the case? Were they trying to get something done that was illegal, or were they trying to get the law changed so we could fix it? Today we read in the The Globe and Mail something that may be the answer. If one is found guilty of bribery or fraud abroad, one cannot do business with the Government of Canada for 10 years. However, do not worry, it appears that help is on the way. We are going to change that and say that we may give some discretion to some public servant to kind of change that 10 years to maybe six months, a slap on the wrist or something. If we cannot do it one way, if we cannot pressure an Attorney General to perhaps change things, then we will find another way to fix it.
This is serious. Transparency International reported in its 2018 report that Canada is lagging its fellow OECD countries on this issue. We are not doing the job. We have “regressed”, to use the word it put in its 2018 report. Therefore, it is serious. At the OECD and other places, the Prime Minister and Canada have talked about how we are right behind efforts to get at international white collar crime, bribery abroad and the like and that we were with them all the way. Well, maybe this was just another broken promise, and maybe that is what the former attorney general was thinking when she resigned.
The Liberals promised modest deficits when they ran, but they broke that promise. In my part of the world, they promised to redo the process that gave us this dreadful project that is going to do serious harm to southern resident killer whales and the indigenous way of life on the coast. They promised to “redo” that. He came to my riding and said that. I was there. However, he did not do that.
The Liberals promised to change the electoral system. My colleagues will remember that. I think it was several hundred times we heard the promise that the last election would be the last one under the first-past-the-post system. Of course, the Liberals changed their minds on that as well.
However, the promise I think Canadians have the right to care about the most, the one that was probably the most important, if one were to stand back from it, in a democracy, and the one that certainly got my attention, was the commitment to openness and accountability. I was completely in favour of that. I did a lot of work in the earlier part of my life on freedom of information. I believed the Liberals. I wanted to believe the government.
“It is time to shine more light on government”, it said in the Liberal 2015 campaign program.
“Openness and transparency will be our constant companions”, the Prime Minister said.
I would like to have a little openness and transparency at the justice committee. I would like to have an opportunity to hear from the protagonists in this important debate, the people in the Prime Minister's Office and the former attorney general.
I can tell members that I am not very optimistic, because Mr. Wernick, who has been 37 years in the public service, concluded, in an answer to a question I posed, that solicitor-client privilege does not apply here. It is not about litigation privilege. Solicitor-client privilege is about when a lawyer gives advice to a client and has to go to the grave with any secrets he or she hears in advising that client. Lots of lawyers say that it is simply not applicable in these circumstances, because we are not talking about advice. We are talking about whether a person was browbeaten in the exercise of her authority as the former attorney general. That is the issue here.
With regard to litigation privilege, there are two lawsuits. One is a case in Montreal, I believe, which has to do with fraud and bribery. It has nothing to do with what is going on here, nothing, not a thing. It does not talk about litigation and public privilege and the Attorney General. The second case is what most lawyers who do administrative law would call a Hail Mary pass. Believe it or not, SNC-Lavalin is seeking a judicial review of the prosecutorial discretion of the independent director of public prosecutions because she made a mistake in how she exercised her discretion. If ever there was a Hail Mary pass, it is that one. Those are the two cases the government wants to hide behind on the basis of litigation and public privilege.
Let us just review this. First, Mr. Wernick says that there is no such thing in these circumstances. I agree with him. Second, we have no advice to the government in the circumstances at all. That is not at issue. Third, the government refers to litigation privilege in two cases that have literally nothing to do with this. I am very proud of our justice committee chair, who concluded that any effort to use the sub judice rule in that regard would not likely be of any merit. I do not see that as an issue at all.
I know that we can get caught up in the weeds here. I know that we can get right into the specifics while Canadians wonder what the big deal is. This is not climate. This is not the housing crisis. This is not the opioid crisis. However, this is our democracy. This is about whether we live in a banana republic or not. Do we live in a country where we respect the rule of law and the independence of the Attorney General, or do we not? Are we prepared to take a risk and not thoroughly investigate whether there was improper interference, at the highest level, with the role of an Attorney General of Canada? I am not saying that there was. I do not know. I was not there. However, the Liberals would use their majority in the justice committee to not allow us to find that out, to hide behind solicitor-client privilege. The Attorney General could not tell us what it was or what was so complicated. He could not tell us who could waive it. Read the testimony.
Canadians deserve answers. We need to get to the bottom of this. It is important for democracy. It is important for the House of Commons. It is important for Canada.