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Justin Trudeau

PM, Butts deny ‘inappropriate pressure’ in SNC case; ex-AG’s speedy ‘final’ rejection of DPA questioned

Thursday, March 07, 2019 @ 5:44 PM | By Cristin Schmitz

Last Updated: Thursday, March 07, 2019 @ 6:09 PM

Prime Minister Justin Trudeau has acknowledged there was an “erosion of trust” between former Attorney General of Canada Jody Wilson-Raybould and his office, especially between Wilson-Raybould and his former principal secretary Gerald Butts.

But echoing comments made March 6 by Butts, and by Clerk of the Privy Council Michael Wernick, the prime minister continued to insist that neither he nor his senior officials ever “inappropriately pressured” Wilson-Raybould to shelve the SNC-Lavalin criminal prosecution on fraud and bribery charges in favour of negotiating a deferred prosecution agreement (DPA) with the Montreal-based construction giant.

Justin Trudeau

Prime Minister Justin Trudeau

In sum, the comments by the prime minister, Butts and Wernick proffer a narrative that PMO officials either did not know that Wilson-Raybould considered irreversible her Sept. 16 decision not to intervene in the decision by the Director of Public Prosecution (DPP) not to offer SNC a DPA (per Trudeau and Butts). Or PMO officials did not accept that Wilson-Raybould could take such a final decision, in law, prior to a court verdict being reached in the criminal prosecution — since a prosecutor is legally obliged always to take into account — and, as necessary, adapt her prosecutorial decisions to — emerging facts and evolving public interest considerations (per Wernick and Butts).

Nor did government officials consider that their communications to Wilson-Raybould and her staff last fall amounted to inappropriate “pressure” — rather than robust and appropriate discussions about the the best way forward in the public interest.

Moreover, the prime minister repeated his contention that if Wilson-Raybould believed that senior government officials were inappropriately pressuring her, and politically interfering with her prosecutorial independence, in the SNC-Lavalin case, she should have informed him at the time when the events were allegedly occurring between September and December (i.e. not have waited until last week when she made those allegations before the Commons Justice Committee).

At an early morning news conference in Ottawa March 7, Trudeau publicly addressed in some detail, for the first time, the events of the burgeoning political crisis that was triggered Feb. 7 when The Globe and Mail alleged that the PMO “put pressure” on Wilson-Raybould last fall to overturn her decision not to direct the DPP to revisit the DPP’s Sept. 4 decision to proceed to trial, rather than offer to negotiate a DPA with the company.

“I met with Jody Wilson-Raybould and the clerk of the Privy Council on Sept 17. During these meetings I raised the SNC-Lavalin file and, as you heard, I reaffirmed that that decision was up to the AG to make,” Trudeau said. “Yes I did mention that I was the [MP] for Papineau,” he said, alluding to Wilson-Raybould’s testimony that he inappropriately brought up partisan considerations.

Jody Wilson Raybould

Former Attorney General of Canada Jody Wilson-Raybould

“I care about the families, workers and students in my riding, but this comment wasn’t of a partisan nature,” Trudeau continued in French. “It is our job as parliamentarians to defend the interests of the communities we were elected to represent, to be the voice of those communities, in Ottawa,” he said. “I stressed the importance of protecting Canadian jobs and reiterated that this issue was one of significant national importance. Ms. Wilson-Raybould left that meeting saying that she would speak with her deputy minister and the clerk about this matter, but that the decision was hers alone. In the months that followed that meeting I asked my staff to follow up, regarding Ms. Wilson-Raybould’s final decision. I realize now that I should have done so personally given the importance of this issue and the jobs that were on the line.”

Trudeau insisted, however, that the conversations and interactions took place “at a time when my staff and I believed that the former minister of justice and attorney general was open to considering other aspects of the public interest.”

“However, I now understand that she saw it differently,” he conceded. “What has become clear from the various testimonies is that over the past months there was an erosion of trust between my office, and specifically my former principal secretary and the former minister of justice and attorney general. I was not aware of that erosion of trust. As prime minister and leader of the federal ministry I should have been.”

Asked why he asked his staff to continue to raising the issue of a DPA with Wilson-Raybould after she told him Sept. 17 that she had made up her mind and would not change it, Trudeau replied the DPP Act “indicates that that decision can be taken by the attorney general up until the very last minute of a trial — so we considered that she was still open to hearing different arguments and different approaches on what her decision could be.”

“As we now learn from [her] testimony, that was not the case,” he said. “But like I said there was erosion of trust, a lack of communication to me and to my office about her state of mind on this and that is certainly something that I’m having to reflect on as a leader and that I’m looking forward to improving on as we go forward.”

Asked to clarify whether he was apologizing for anything, Trudeau responded “in regards to standing up for jobs and defending the integrity of our rule of law, I continue to say that there was no inappropriate pressure. Obviously reflecting on lessons learned through this, I think Canadians expect that of us that … there are things that we have to reflect on, and understand, and do better next time.”

In that regard (and without providing details), Trudeau announced that “we will be seeking external expert opinions on a number of things as they relate to the set of issues raised over the past few weeks. This includes: the dual role of the minister of justice and attorney general of Canada; as well as the operating policies and practices across cabinet, the public service and political staff, as they relate specifically to judicial matters, but also more generally.”

Trudeau deflected questions from Quebec reporters asking the prime minister to assess Wilson-Raybould’s handling of the SNC-Lavalin file, including what was described as the “rather expeditious” time frame in which she decided — irrevocably according to her testimony — that she would not intervene in the DPP’s decision to continue with a criminal prosecution which the government feared could lead to the loss of 9,000 Canadian jobs if the company is convicted (Wilson-Raybould has said she had made her final decision by Sept. 16 not to intervene in the DPP’s Sept. 4 decision).

Gerald Butts

Prime Minister Justin Trudeau's former principal secretary Gerald Butts

Noting that the attorney general told her deputy minister last September that she no longer wanted to hear about the SNC-Lavalin case from her officials or others, and that the attorney general vetoed the transmission of a DOJ legal opinion about the consequences of a criminal conviction for SNC-Lavalin that had been solicited by the Privy Council Office (PCO), a reporter asked in French “how do you describe. . .management of this issue? Is this an acceptable way to support such an important issue? . . . What is your assessment of Ms. Wilson-Raybould's work on this issue?”

Trudeau responded that it would be “inappropriate” for him to answer, given that SNC-Lavalin is challenging the DPP’s decision via a Federal Court judicial review.

Questions about how speedily Wilson-Raybould decided the SNC case — with no time apparently to consult with colleagues or others as to the public interest — were also raised at the Liberal-dominated Commons Justice Committee March 6.

MPs on the committee listened for more than five hours to successive testimony from Butts, Wernick and Deputy Minister of Justice Nathalie Drouin.

A chronology of events set out by Drouin suggests that the former attorney general had made her purportedly final decision not to intervene in the DPP’s decision, without any input from the prime minister or any of the other senior government officials she now alleges “inappropriately” pressured her to reconsider her decision, owing to the job losses and other fallout that might result if the company was successfully prosecuted.


Deputy Minister of Justice Nathalie Drouin

Drouin, who served as Wilson-Raybould’s deputy attorney general before the latter was shuffled to Veterans Affairs Jan. 14, 2019, told MPs the DPP informed the Department of Justice (DOJ) Sept. 4 that the DPP would not be negotiating a DPA with SNC-Lavalin. That in turn opened up the possibility for Wilson-Raybould to use her powers under the Director of Public Prosecutions Act (DPP Act) to direct the DPP to reconsider, or direct her to move forward with a remediation agreement under part XXII.1 of the Criminal Code — new legislation which did not come into force until Sept. 19, 2018.

Drouin revealed that after the DOJ learned of the DPP’s decision to continue with the SNC-Lavalin prosecution Sept. 4, she spoke by telephone with Wilson-Raybould, who was out of the country in Fiji, on Sept. 5. Drouin informed the attorney general that the DOJ was preparing a legal opinion for the minister on the powers of the attorney general to issue directives, and assume conduct of prosecutions, under the DPP Act.

Drouin said that as she and her officials were still preparing that legal advice on Sept. 6 and 7, Wilson-Raybould’s policy adviser told her that the attorney general “was not keen on the idea of exercising her authorities under the DPP Act.”

Drouin said her impression was that this was because Wilson-Raybould was concerned that issuing a directive to the DPP in the SNC-Lavalin case could be seen as politically interfering with the DPP’s independence (since the DPP Act came into force in 2006, an attorney general has never exercised his or her power to issue a directive to the DPP in a specific criminal prosecution).

“In my opinion, from what I understood, it was that she saw no room for manoeuvre in exercising the powers she had under of the DPP Act which would not have been perceived as political interference (translation),” Drouin told MPs in French. “Those authorities under the DPP Act have never been used, so there’s a risk that for any AG to use, in any circumstances, the authorities under the Act, that could be perceived as political interference.”

Drouin said the draft legal opinion on the attorney general’s powers to issue directives was provided to Wilson-Raybould’s office Sept. 8. She said three days later, on Sept. 11, she received an e-mail from Francois Giroux, Wilson-Raybould’s acting chief of staff, informing her that the attorney general “was not intending to intervene in the case and she would be pleased to discuss it.”

On Sept. 12, the Department of Finance told Drouin that SNC-Lavalin was still in discussion with the DPP. “I therefore understood that the DPP’s position on whether to invite SNC to negotiate a remediation agreement was not final,” Drouin said.

Drouin said that when she saw Wilson-Raybould on Sept. 18 — for the first time since the attorney general’s Sept. 12 return from her trip abroad — Wilson-Raybould remarked that she (the attorney general) was not comfortable with the conversation she had had with the prime minister and Wernick in respect of SNC-Lavalin the day before.

(Wilson-Raybould told the Justice Committee last week that she directly asked the prime minister if he was interfering with her prosecutorial independence in the SNC-Lavalin matter after Wernick and the prime minister raised the prospect of job losses and the potential departure of SNC-Lavalin from Montreal if the company was convicted, and also pointed out that there was an impending Quebec election and that the prime minister is a Montreal MP. Wilson-Raybould testified she told them she had done her due diligence, had made up her mind and would not change it, and warned the prime minister not to politically interfere with her role and her decision as attorney general.)

Drouin said that on Sept. 19 Wilson-Raybould told Drouin that the attorney general had just had another conversation with Wernick.

“I clearly recall that the former attorney general said to me that this would be the last time we discussed the SNC-Lavalin matter and she also instructed me not to have any discussion with the DPP,” Drouin recalled.


Clerk of the Privy Council Michael Wernick

Drouin also noted that “near the end of October” Wernick’s Privy Council Office (PCO) asked the DOJ to provide the PCO with a legal opinion on the potential impacts on SNC-Lavalin if the DPP’s prosecution resulted in a criminal conviction.

“My department developed the draft legal advice,” Drouin said. “It was not provided to PCO, at the request of the [justice] minister’s office.”

Liberal MP Randy Boissonnault asked Drouin how Wilson-Raybould’s instruction to Drouin not to raise the SNC-Lavalin matter anymore could be reconciled “with her legal and professional responsibility to consider public policy interests such as the impact on jobs and other considerations we have heard here?”

“I think it's for her to answer that,” Drouin replied. “I would like to offer that she said last week [to the Commons Justice Committee] that she did her due diligence when she received a Section 13 letter” under the DPP Act (A s. 13 notice from the DPP informs the attorney general of any prosecution or intervention she intends to make that raises “important questions of general interest.”)

Drouin noted that in the legal opinion the DOJ supplied to the attorney general on her role, “we say that the first thing for an AG is really to make sure she has all the information she needs to take her decision.”

“According to your testimony then, the former minister and AG instructed the DOJ not to discuss, consult or consider anything related to SNC-Lavalin after September 19th,” Boissonnault rejoined. “The former attorney general, said she did not want to work on this file anymore. Has this decision prevented the government from seeking further advice on the SNC-Lavalin's question?”

“In fact, the attorney general is the decision maker on this file,” Drouin replied. “When [the decision maker] makes its decision, actually it means that the door is closed to any gesture. Only she can decide to exercise the powers under the DPP Act.”

Liberal MP Iqra Khalid asked Drouin whether the deputy minister believed that Wilson-Raybould had an open mind to the options that the DOJ provided her — i.e. between Sept. 4 when the DPP informed the department of the decision and Sept. 17, when Wilson-Raybould said she told the prime minister she had made her decision and she would not change her mind.

“We didn't recommend any specific options,” Drouin noted. “We just exposed all the options she had in front of her. She didn't want to, and that was her decision, not to exercise any of those options. … In all my discussions on any files with the minister, she was always open to receive information, to seek advice, and then it was for her to take decisions.”

Asked whether the Sept. 4 to Sept. 16/17 timeframe was “reasonable” for the minister to assess all the identified options and come to a final decision, particularly since she was out of the country for most of that time, Drouin said “I think it's not for me to assess, as I said. She did say in her testimony that she did her due diligence. I was not part of that due diligence exercise. As I said, in order to make a decision, yes, she had to take into account the context, but she also had to take into account the evidence and the information she got from the DPP.”

“The evidence and the information that is ever-evolving in a live case like this one?” Khalid asked.

“It's the role of any public prosecutor to continuously assess the public interest on whether or not to continue a specific case,” Drouin responded. “Of course, this continuum, if I may say obligation, depends on new facts or new evidence that can be submitted to the prosecutor.”

In his appearance before the Justice Committee, Butts said he was not even aware until Wilson-Raybould testified last week that she considered that she had made a final decision in the SNC-Lavalin matter last September.

“So what, exactly, was [PMO] staff talking to the minister about?” he said in his opening statement.

“We had a view, which was informed by DOJ advice, that it would be appropriate for her to seek independent advice from an eminent Canadian jurist or panel of jurists. We believed that this was appropriate, first because the law empowering the attorney general to use remediation agreements is new. Indeed, this was the first time that entering into a remediation agreement under the new regime was even possible.”

“Second,” he explained, “we felt that outside advice was appropriate because of the extraordinary circumstances of a conviction. The fact that the company involved employs so many people across the country heightened the public importance of the matter. That was the entirety of our advice to the attorney general, which we made clear she was free to accept or not.”

Butts said PMO officials also made it clear that if the attorney general agreed to take external legal advice on the matter “she was equally free to reject or accept that advice. It was not about second-guessing the decision; it was about ensuring that the attorney general was making her decision with the absolute best evidence possible. … That was the substance of the discussions that the PMO had with the attorney general and the Attorney General’s Office. When you boil it all down, all we ever asked the attorney general to do was to consider a second opinion.”

Butts noted that the DPP disclosed her decision not to pursue a remediation agreement Sept. 4 while the attorney general was out of the country, and the latter did not get back to Canada until Sept. 12.

“In that version of events the attorney general made the final decision after weighing all of the public interest matters and a new law involved in just 12 days,” he remarked. “Imagine for a moment that on September 16 — the day the former attorney general told this committee [she made] the decision, firmly and finally — that she made a public announcement to inform Canadians of that decision. What would be the rationale? In fact, I learned for the first time, while watching the former attorney general’s testimony, that she had made a final decision on September 16. My understanding is that nobody in the PMO or PCO knew that at that time either. In fact it is not, to my knowledge, how the law works. My understanding, which was informed by the public service and lawyers in the PMO, is that the attorney general’s power to direct the DPP extends until the time a verdict is rendered. My further understanding is that the attorney general is free to take advice on the decision up until that point and is obligated to bring fresh eyes to new evidence.”

He pointed out that the DPP herself considered the matter again anew in late September when new evidence was presented by the company, and she made a fresh decision on Oct. 9, 2018.

“It was in that spirit that [PMO advisers] Mathieu Bouchard and Elder Marques had a discussion with the former attorney general on November 22, 2018,” said Butts, who did not elucidate what new information or considerations might have come into play after the attorney general made her decision.

“Following the September 17 meeting the attorney general had with the clerk and the prime minister I was debriefed that the next step on the file would be to have the clerk and the deputy minister of justice meet with the [justice] minister,” he continued. “If the attorney general had made a decision and communicated to the prime minister and clerk [of the Privy Council], why would there be a next step at all? Why would the attorney general take and solicit meetings on a closed matter? Moreover, why would the attorney general not communicate her final decision in writing to the prime minister?”

He said Wilson-Raybould's preferred method of communicating in complex and/or important matters is in writing. “Yet in all our texts and e-mails, which begin the summer of 2013, there is a not a single mention of this file or anyone’s conduct on this file until during the cabinet shuffle.”

Asked by Boissonnault why anyone should believe Butts’ categorical denial that anyone in the PMO pressured the former attorney general, Butts replied “I’m not ... here to cast aspersions on anyone, or to suggest that anybody is deliberately misleading anyone else. I do believe that it is possible for people to draw different conclusions from the same experience. … I’ll also say this: these are really important jobs, but at the end of the day we’re all people. When trust breaks down among people, I think that it’s easy to see things that have already happened in a different light.”

Photo of Gerald Butts by Sean Kilpatrick/Canadian Press