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Lametti says no need for Trudeau gov’t to probe ‘one-off’ SCC leak; but demand grows for RCMP investigation

Friday, April 12, 2019 @ 12:08 PM | By Cristin Schmitz

Justice Minister David Lametti says a damaging leak about the latest Supreme Court of Canada appointment was a “one-off” that did not come from his department or the Prime Minister’s Office (PMO) — nor does it require the Trudeau government to track down the leak’s source(s) or reconsider the adequacy of the confidentiality protections around the Supreme Court appointment process.

In an exclusive interview, Lametti told The Lawyer’s Daily he is “very confident” that last month’s leak to the Canadian Press and CTV News — purportedly disclosing confidential communications and a disagreement in 2017 between former Justice Minister Jody Wilson-Raybould and Prime Minister Justin Trudeau about who should be appointed to the top court and as Chief Justice of Canada — did not emanate from the Department of Justice (DOJ), nor did it come from PMO officials.

The new justice minister, who succeeded Wilson-Raybould in a cabinet shuffle Jan. 14, also suggested that the leak may have come, “even quite inadvertently”, from lawyers or others outside government who were consulted by his officials, under strict secrecy rules, about the western vacancy that culminated in the appointment of Justice Sheilah Martin in 2017.

Lametti said that he is relying on the prime minister’s word that the PMO was not involved in the leak, and that, apart from questioning his own officials, the DOJ has not internally investigated the apparent breach of confidentiality which led to an anonymously sourced March 25 CTV story, for example, headlined “Relations between Trudeau, Wilson-Raybould began to fray over her Supreme Court pick: Sources.”

“I can ask for an investigation in my own department. I don’t feel I need to do that given the circumstances, given my faith in the standards held in my own Ministry,” Lametti said.

“I spoke to people and I’m ... very confident that the only people who knew about it are utterly reliable,” he explained. “I could ask for another department in government [to investigate], but again the prime minister’s been quite clear that he doesn’t feel that it’s come from PMO. And I believe him.”

David Lametti

Justice Minister David Lametti says he is ‘very confident’ that the DOJ and PMO were not part of a confidentiality breach in the Supreme Court appointment process that Privacy Commissioner Daniel Therrien is investigating.

Lametti said he is “very concerned” about the leak and does not want to downplay its importance. “But it’s pretty hard to guarantee in any political system that there are no leaks,” he said.

Asked whether he intends to make any changes to enhance the confidentiality and security of the Supreme Court appointment process, the justice minister noted the leak was the only one he knows of in respect of some 280 federal judicial appointments made by his government.

Generally “I think the process works well,” he said. “I think we’re going to reiterate to people how important [confidentiality] is. We’re all reiterating it to our staffs — to our various ministerial staffs — it’s happening across government. … I think it’s a one off, and I’m pretty confident that we’re not going to see this happen again.”

Serge Joyal

Senate Liberal Serge Joyal

The justice minister’s stance was rejected by Senate Liberal Serge Joyal, the red chamber’s Legal and Constitutional Affairs Committee chair who called in the Senate chamber April 3 for Trudeau to request an RCMP probe.

The need for a police investigation is “inescapable” given the importance and consequences of the leak, Joyal told The Lawyer’s Daily.

He said it is implausible that the leak emanated from those consulted about the appointment, given the nature of the leak which purportedly reveals confidential communications between Wilson-Raybould and the prime minister.

“I think it’s for the prime minister to reassess … the overall issue, and make sure that the present rules, or the control, of confidentiality are reassessed at the highest level,” Joyal said. “We’re not talking here of a breach of confidentiality … at the lower level of consultation. We are here at the highest level of consultation.”

He added, while both Lametti and the prime minister have given their assurances their officials were not responsible, that does not obviate the need for an RCMP investigation “There was a leak. A leak is a fact,” Joyal remarked. “It’s not enough for the PM to say: ‘It’s not in my office.”

Trudeau condemned the leaks in the Commons, asserting “this was not something that my office had any part in leaking.”

Joyal said that is all the more reason for the prime minister to refer the leaks to the RCMP for investigation. (The PMO declined to say whether the prime minister will do so, nor would the RCMP say whether it is investigating or has been asked to investigate.)

Meanwhile, the Opposition is pursuing the issue. On April 11 the Liberal government used its majority on the Commons Justice Committee to vote down a motion that the committee investigate the leaks.

Daniel Therrien

Privacy Commissioner Daniel Therrien

Privacy Commissioner Daniel Therrien is also investigating the leaks, following complaints from the NDP and Conservatives.

However, Joyal said that is no substitute for an RCMP investigation. He noted the privacy commissioner does not have police powers. And although he can investigate the Privy Council Office (PCO) and the DOJ, he does not have jurisdiction over the PMO or other ministerial offices, including Lametti’s.

Nor can the privacy commissioner investigate potential Criminal Code offences, such as breach of trust; possible violations of the Security of Information Act; or national security and security clearance breaches — all of which would have to be referred for investigation to law enforcement (or CSIS), Joyal pointed out.

The leak is “a very serious breach” which the government must do its utmost to investigate, Joyal said. “Action has to be taken. There’s no doubt about it,” he urged, noting that it is the prime minister who is ultimately responsible for the integrity of the Supreme Court appointment process, and the appointments themselves, which are the prime minister’s sole prerogative.

“If they’re not investigating [the leak], … what would be the reasons — considering the seriousness of it?” he queried. “It’s part of the trust that Canadians have in their institutions. And the Supreme Court is one of those institutions where the sacred trust has to be maintained to the utmost.”

Lametti told The Lawyer’s Daily April 9 that he has apologized in person to Manitoba Queen’s Bench Chief Justice Glenn Joyal, whose identity was revealed in the leaks and news stories as the candidate reportedly favoured by Wilson-Raybould for the chief justiceship of the top court.

The Canadian Press attributed the leak to “well-placed” anonymous sources. The stories, which cast Wilson-Raybould in a negative light, collaterally damaged Chief Justice Joyal, who felt compelled to disclose that he had withdrawn himself from Supreme Court consideration due to his wife’s ill health.

The nature and timing of the leaks, in the midst of the political fallout from Wilson-Raybould’s allegation that the prime minister and senior government officials pressured her to shelve the bribery prosecution of construction giant SNC-Lavalin in favour of a deferred prosecution agreement (a charge vigorously denied by the prime minister and his officials), have prompted speculation in Parliament and within the legal community that they emanated from sources inside, or close to, the PMO.

But Lametti suggested the leaks could have come from senior bar members or others who were consulted, under strict secrecy rules, on the western Supreme Court appointment (Trudeau ultimately elevated Richard Wagner of Quebec to chief justice of Canada).

“There are a number of people across the country who were consulted on that particular appointment, and so leaks could have come from a variety of different places that are outside of Parliament Hill,” Lametti explained.

“The consultation process speaks to members of the bar across the country, speaks to members of the bar in a given province where the seat is coming from — so a number of people could have leaked that, even quite inadvertently,” he said. “And so we’re going to continue just to stress how important that confidentiality in the process is as we move forward.”

Lametti said “that we can, I think, assure Canadians that we’ve got a good system. And I think we can assure participants in the system, whether they be candidates or whether they be people giving advice, that this is going to be treated with the utmost confidence. I think we’ve done a reasonably good job.”

He advised the legal community “to continue to have confidence in the system. … I think, given the number of appointments we’ve made, the number of sensitive appointments we’ve made … the process has generally worked.”
He stressed, “I understand the importance of confidentiality throughout, in terms of the consultations that are had — and I will do my best — should we have another Supreme Court appointment, under my watch, to make sure everyone understands the seriousness of this.”

However, Sen. Joyal did not accept that reiterating the need for confidentiality in the Supreme Court process to all future participants is sufficient to restore confidence in the confidentiality and security of the appointment process.

“We cannot just trust the present rules,” he said. “The proof is that there has been a major leak that is at the highest level, so the system is certainly not as waterproof as one would like to see it. That’s why I think there is a need for an investigation.”

In Joyal’s view, the leak might be the most serious aspect of the whole SNC-Lavalin affair — not only because its fallout jeopardizes the overall integrity of — and public confidence in — the judicial appointment process, but also because the apparent breach of confidentiality involves conversations and communications between the prime minister and justice minister about the appointment of Canada’s top judge.

“With all respect, I think this is the highest breach of confidentiality that one can see happening in the system,” he said. “Does the leak come … because the conversations are taped surreptitiously, through a technical device we don’t know is there?” he queried.

“The investigation should be immediately conducted by the most able forces of the RCMP — could you imagine that kind of conversation not being [secure as between] the prime minister and the minister of justice — in the hands of a foreign country, for instance?” he asked.

“And if that kind of information that is so sensitive is not protected — what is protected inside the government? This is to me the worst leak that one can think of — so if that is not protected, well everything else is open for leaks. That’s why I think it is so serious that it jeopardizes the overall trust of Canadians with the justice system.”

Joyal also urged the government to use its own internal resources to uncover the source(s) of the leaks, noting that the Privy Council Office has its own security division to look into confidentiality breaches.

“The overall legal community should be reassured,” he said. “The Supreme Court is one of those institutions where the sacred trust has to be maintained to the utmost.”

If the government does not ask for an RCMP investigation into the leak, Joyal said he could do so himself, or introduce a motion in the Senate calling on the government to act.

Indeed senators have already expressed substantial support for Joyal’s views.

In the Senate chamber April 4, Sen. Larry Smith, leader of the Opposition in the Senate, called the leak a very serious matter, and noted that Chief Justice Joyal felt compelled, as a result, “to publicly respond to this leak and, in doing so, to disclose highly personal information about his family. Those who have rightly condemned this leak include the Canadian Bar Association and two former Supreme Court justices, Louis LeBel and John Major. The Manitoba Bar Association called this incident appalling and also stated: ‘It demeans the entire selection process, and is harmful to the privacy of individual applicants.’ ”

If Lametti “is truly concerned about this leak, then why won’t he investigate it?” Smith asked Sen. Peter Harder, the government’s representative in the Senate.

Harder replied, citing with approval Sen. Joyal’s statement in the Senate chamber, which Harder said garnered “widespread and all-party applause” and “which I think, reflects everybody’s view in this chamber with regard to this event.”

Harder said the matter is “of great concern to the government. With regard to whether there is an investigation, I will, of course, make inquiries. But I will also convey, on behalf of the honourable senator as well as all senators, as I did already with respect to Senator Joyal’s statement, the seriousness which we feel this deserves.”

Wilson-Raybould has also called for an investigation into the leak.

Joyal told senators April 3 “such an inexcusable leak regarding the exchange of views in the selection process challenges the whole system of appointments at the highest level and the integrity of judges; it jeopardizes the trust of every Canadian in the judicial system in Canada. The prime minister must intervene immediately and launch a thorough investigation so that corrective measures be put in place to protect the democratic right of every Canadian to be heard by an independent and impartial court. To safeguard the rule of law demands nothing less.”

Photo of Justice Minister David Lametti by Roy Grogan