OTTAWA — Michael Wernick wandered into the justice committee like a sun-struck madman and gave real answers to the questions he was asked by MPs not used to such transparency.
After two weeks of politicians citing “solicitor-client privilege” in the SNC Lavalin case, we finally got somewhere.
The public service generally operates on the principle that if there is nothing to be gained by saying something, it is generally better to say nothing than anything.
But the country’s top bureaucrat was provocative and unapologetic — perhaps because he is the likely source of any pressure, undue or otherwise, said to have been put on Jody Wilson-Raybould, the former attorney general, over the prospect of a deferred prosecution agreement that would curtail the criminal prosecution of engineering giant SNC-Lavalin.
From his opening statement, it was clear the clerk of the Privy Council was in feisty mood. He said he is worried about his country, about foreign interference in elections, about rising tides of incitement to violence (“I’m worried someone is going to get shot in this country this year during the political campaign”) and about people losing faith in the institutions of governance in the country.
The SNC story plays into that, he said.
The public service generally operates on the principle that if there is nothing to be gained by saying something, it is generally better to say nothing than anything
Despite the publicity around SNC, Canadians should have faith because the independence of the investigation and prosecution of the company have never been compromised. He pointed to laws that are “demonstrably working” when it comes to prosecutorial independence, lobbying and government ethics. “The shields held — the software protecting our democracy is working,” he said.
“Is there two-tier justice in Canada? No, demonstrably not. Despite the most extensive government relations effort in modern times, the company (SNC) didn’t get what it wanted.”
He defended the concept of deferred prosecution agreements as an attempt to balance public policy concerns, amid “legitimate” concerns by governments that workers, suppliers and pensioners of a company suffer from the misdeeds of corporate officials. “They are not an acquittal, an amnesty, an exoneration, a get-out-of-jail card or a slap on the wrist,” he said.
That was the background against which MPs set out on an expedition to get some answers.
Justin Trudeau has evolved into a politician so well versed in the art of denial, he can’t say yes.
Hence the confusion over who said what to whom. The most logical version of events to this point was that either Trudeau or his former principal secretary, Gerald Butts, tried to persuade Wilson-Raybould to grant SNC a remediation agreement at meetings in September and December.
Is there two-tier justice in Canada? No, demonstrably not. Despite the most extensive government relations effort in modern times, the company (SNC) didn’t get what it wanted
But Wernick was at the meeting between the former justice minister and the prime minister on Sept. 17 and said that Trudeau was clear the final decision on SNC was hers alone. “The prime minister said verbally and in writing that she was the decider.”
He said in his experience, Trudeau and his staff “always, always conducted themselves to the highest level of integrity. You may not like their policies, or their politics or their tweets but they have always been guided by trying to do the right thing.”
Having exonerated Trudeau and Butts, Wernick revealed that he himself is the likely source of any disquiet Wilson-Raybould may have over SNC.
He predicted that when the former attorney general appears before the committee next week, she will express concerns about a phone call he had with her on Dec. 19.
He said he called her that afternoon to discuss the SNC file and whether a deferred prosecution agreement was still an option, even though she had ruled out intervening during her conversation with the prime minister in September.
Wernick revived the issue, saying her colleagues and the prime minister were “quite anxious” about the future of the company, which was being discussed openly in the business press.
You may not like their policies, or their politics or their tweets but they have always been guided by trying to do the right thing.
“I can tell you with complete assurance that my view of the conversation is that it was within the boundaries of what is lawful and appropriate. I was informing the minister of context,” he said, while acknowledging she may have her own views on the issue. “But that is for the ethics commissioner to sort out,” he said. “My conclusion and my assertion is that there was no inappropriate pressure on the minister of justice in this matter.”
Murray Rankin, the NDP justice critic, pointed out that Wilson-Raybould was fired, “sorry removed,” for not offering a remediation deal.
Wernick refuted the suggestion, saying she was not fired, but was offered another position in cabinet that she accepted. At no time, he said, did she raise any concerns with the prime minister or the ethics commissioner.
He was vocal in his opinion that Wilson-Raybould should not be muzzled by solicitor-client privilege when she appears at committee next week. “I do not see where the former attorney general was a solicitor. The matter was never discussed at cabinet, never. She was not advising the prime minister,” he said.
What to make of it all? It bore the hallmarks of a man unconstrained by the need to get re-elected, with nothing to lose in terms of self-advancement (Wernick has worked in the public service for 37 years and has reached its apex).
The odds on him continuing in his current job should the Conservatives win in October were not improved by his staunch defence of Trudeau and his advisers. Wernick declared himself “neutral” and pointed out he has served as a public servant under seven prime ministers. One academic suggested some of his comments sounded like “cheer-leading” for the current government. He certainly came close to crossing lines.
But no clerk is a wallflower at the orgy — he or she has to be invested in the success or failure of the government, if the relationship is going to work.
By his testimony at the committee, Wernick showed he is heavily invested.
He expressed himself frustrated by media coverage, taking issue with the Globe and Mail story that started this affair. He stated clearly he does not believe there is a case to answer. And he obviously relishes the prospect of Wilson-Raybould giving her version of events next week, unfettered by privilege.
In light of his testimony, Wernick is suggesting the SNC affair boils down to whether there is an objective standard when it comes to defining what is “lawful and appropriate” in conversations between the attorney general and others.
Legal precedent in the U.K. suggests those conversations are more likely to be judged by a subjective standard, said Nathalie Drouin, the deputy minister of justice, who was also a witness at the committee.
No thanks to anyone in this government, its case is now on firmer ground.
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