Michael Wernick: Mounting the Offence? (A Hypothesis)

As clerk of the privy council, Michael Wernick is Canada’s most senior public servant and, therefore, ostensibly neutral. But a more passionate defender before the House Justice Committee this past Thursday (February 21st) of the various actors (the prime minister, the PM’s principal secretary, others and himself) who helped to present, in his word, “the context” about the SNC-Lavalin situation to former Attorney General Jody Wilson-Raybould, is unlikely to be found. His doing so set the stage for the former attorney-general’s appearance next week.

Discussing the various meetings Wilson-Raybould had with these various political actors, as well as his non-partisan self, Wernick went to great pains to make it clear that these conversations may have been pressure, but that they were not “inappropriate”, merely ensuring that Wilson-Raybould had the necessary information about the economic consequences if the director of public prosecutions (DPP) did not invite SNC-Lavalin to negotiate a remediation agreement. (For details of Wernick’s testimony, see “Top bureaucrat says Trudeau, staff pressed Wilson-Raybould on SNC-Lavalin settlement” in the February 21st edition of The Globe and Mail online and “Privy Council Clerk Michael Wernick adamant no undue pressure exerted on Wilson-Raybould” in the February 21st online edition of the National Post.)

Was Wernick’s testimony the neutral setting out of events about the interactions between the former AG and others? Or was it intended to set up the former AG so that she would be on the defensive when (if) she testifies before the committee? Was his testimony a cool articulation of how much political pressure on an AG is permitted before it cross the line? Or was it intended to ensure that when (if) the former AG testifies, she will come across as overly sensitive to legitimate discussions, indeed, even to some degree of okay pressure?

The stronger argument seems to me to be that Wernick was another form of attack against Wilson-Raybould. After all, he put it clearly:

So I can tell you with complete assurance that my view of those conversations is that they were within the boundaries of what’s lawful and appropriate, I was informing the minister of context. She may have another view of the conversation, but that’s something that the ethics commissioner could sort out. [emphasis added]

The National Post

In short, Wernick’s testimony puts Wilson-Raybould on the defensive. Yes, his testimony implies, she was subject to pressure, but really this is nothing more than one would expect in the tough world of politics. After all, the economic consequences of SNC-Lavalin having to go to trial, be convicted and not being able to bid for government contracts would be severe. The PM, the PMO, the clerk of the privy council and others all expected she would understand that and take the appropriate action: instruct the DPP to offer to negotiate an agreement with SNC-Lavalin (even though by then the DPP had already decided against doing so). And even though the reason behind all the (“not inappropriate”) pressure, the national economic interest, was a reason the DPP could not take into account in deciding whether to offer to negotiate a remediation agreement (s.715.32(3)).

So let’s think about being in Wilson-Raybould’s position. She is the AG. She is not to take political considerations into account in making legal decisions, including any instructions to the DPP. The DPP makes a decision not to offer SNC-Lavalin an opportunity to negotiate a remediation agreement. The AG does not need to be involved in that under the relevant provisions of the Criminal Code; she needs to consent if the DPP does want to offer the opportunity, but not if the DPP does not (s.715.32(1)(c)). She is assailed on all sides to think about the bad impact on employees and other other negative consequences if SNC-Lavalin has to go to trial, but she decides (let us suppose) that the DPP’s decision is the correct one that reflects the requirements of the remediation agreement provisions and the independence of the DPP. She rejects the pressure she has been subject to and does not counteract the DPP’s decision.

Perhaps that seems to end the matter. Although Wilson-Raybould does apparently believe that she had been inappropriately pressured by the PMO, at least, she had not resigned as AG, perhaps because no one did give her a direct order to countermand the DPP’s decision. (The Globe and Mail reported that when she met with cabinet on February 19th, she told cabinet members that the pressure from the PMO was improper.) The PM was careful to say when questioned after The Globe and Mail story revealing there had been pressure, that he had not directed Wilson-Raybould, although that had not been the The Globe and Mail‘s assertion. For example, on February 15th, he explained,

There were many discussions going on. Which is why Jody Wilson-Raybould asked me if I was directing her, or going to direct her, to take a particular decision and I, of course, said no, that it was her decision to make and I expected her to make it. I had full confidence in her role as attorney general to make the decision.

National Post

The PM said if Wilson-Raybould had concerns, she should have raised them with him, but she did not. Or perhaps she was not concerned because she did not give in to the pressure, did what she thought was right and nothing negative followed.

Until the prime minister had an opportunity to shuffle his cabinet in mid-January when Scott Brison left government, Wilson-Raybould continued to be attorney general. And, said, Trudeau, if Brison hadn’t left, she still would be. The PM took the opportunity to move Seamus O’Regan from Veterans Affairs to Indigenous Services, replacing Jane Philpott who was given Treasury. And. to the surprise of many, he filled Veterans Affairs with Jody Wilson-Raybould (Global News had reported on January 14th that there was some expectation that Veterans Affairs would be filled by a newcomer from Nova Scotia).

The reality is, fair or not, that Veterans Affairs is seen as a less significant portfolio than many others and thus a demotion for Wilson-Raybould. Although the PM is free to name cabinet members as he wishes (taking into account the usual factors of geography and competence, among others), there are times appointments raise eyebrows and this was one, since overall, Wilson-Raybould had been a successful minister). Was she being punished because she refused to toe the line? Or was her removal a reflection of the lack of trust the PM now had in her to do what he wanted?

The PM replaced her with David Lametti, an MP from Quebec, who wasted little time in letting everyone know that he might still direct the DPP to offer to negotiate a remediation agreement with SNC-Lavalin. This suggested that the PM still wanted a different outcome on the SNC-Lavalin file, through a possibly more compliant minister (although possibly one who genuinely thought that there was cause to override the DPP’s decision, despite the remediation agreement provisions) . Possibly, we might infer from Wernick’s testimony, one who could take more pressure than could Wilson-Raybould without seeing it as inappropriate.

On that point, The Globe and Mail reported that “Lametti said the attorney general ‘is not an island’ who can’t talk to cabinet colleagues or government officials before making a decision about a prosecution. ..” but he also said
it is crucial that the final decision must be the attorney general’s alone.”

This is an accurate statement about the independence of the attorney general: she can consult with colleagues and is encouraged to do so, but she must make the decision. When she concludes that the political actors have become directing, she may have to resign. (This is the Shawcross doctrine, named after a UK attorney-general, Lord Shawcross). This is the crux of the matter. Repeated efforts to convince her to change her mind (or to reach a particular conclusion contrary to her inclination) from senior members of the government, the PMO and the PCO might well have crossed the line, but may also have been very close to it. At least one statement of attorney general independence, that relies on the Shawcross doctrine, says that “the government is not to put pressure on him or her” and that

although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis

The Honourable Marc Rosenberg , “The Attorney General and the Prosecution Function on the Twenty-First Century“, Ontario Court of Appeal website

Here there was “pressure”, not merely consultation. Rather than resigning, however, Wilson-Raybould kept her own counsel. The large clue to this lies in her statement posted on her website following her demotion:

The role of the Attorney General of Canada carries with it unique responsibilities to uphold the rule of law and the administration of justice, and as such demands a measure of principled independence. It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. This is how I served throughout my tenure in that role. (emphasis added)

Website of Jody Wilson-Raybould

She may well have thought all was forgiven until she was demoted and then, she, a good member of the Liberal government accepted that, or at least it seems she did, until the PM went one step too far. He mused that Wilson-Raybould was satisfied with the government because she was still in cabinet — upon which she resigned as minister of veterans affairs on February 12th.

Back to Michael Wernick’s testimony before the justice committee. The prime minister said on Friday (February 22nd) that Wernick “is someone we need to heed very carefully when he chooses to express himself publicly and I’m sure everyone is taking a careful look at his words yesterday”, effectively saying, “here’s the truth of the matter against which other views must be compared”. Wernick confirmed (it appears) the extent of the extensive pressure from various high officials on Wilson-Raybould. What he did not necessarily confirm is that that degree of pressure, despite Wilson-Raybould’s not giving in, did not constitute attempts to undermine the AG’s independence.

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