Good morning, everyone, and welcome to the Standing Committee on Justice and Human Rights, as we move forward with our meetings on remediation agreements, the Shawcross doctrine, and the discussions between the Office of the Attorney General and government colleagues relating to SNC-Lavalin. This is an important meeting where Canadians will be able to hear answers to questions that are swirling around.
I want to set out some rules for these meetings. Because we want to give people the opportunity to pose questions fairly and because the time limits are set, I want to make sure that people's questions are answered. Witnesses have the right to answer the question, but witnesses need to be succinct in their answers so as not to take away the time from people on their questions. I will strictly monitor the time limits. As a chair, I'm usually very flexible on time, but here we're going to stick with six minutes, six minutes and six minutes so that we give everybody a fair shot to get through the rounds, and so everybody gets their questions in.
I’d like to ask all of the witnesses to provide rather brief answers.
Mr. Fortin, we are pleased to have you here with us today.
Today, in our first meeting on the subject, we're joined by the honourable David Lametti, Minister of Justice and Attorney General of Canada.
We also welcome Ms. Nathalie G. Drouin, Deputy Minister of Justice and Deputy Attorney General of Canada.
We will now hear presentations by witnesses, and we will begin with Mr. Lametti.
Thank you, Mr. Chair. Good morning, colleagues.
I thank the committee for giving me this unique opportunity to speak to you today.
Over the past two weeks, following the initial publication of allegations in The Globe and Mail concerning the nature of conversations held between former minister Jody Wilson-Raybould and the Prime Minister’s Office, events have moved forward very quickly.
While many details remain uncertain, and based at least in part on anonymous accounts, it has become clear that Canadians deserve and require a public and transparent review of the events at issue. That is why I support the process initiated by this committee.
After all, one of the pillars of our democracy is that Canadians trust that our justice system is properly administered and monitored. I know that this committee can help to preserve that trust.
There is no question that the Attorney General of Canada plays an important role in upholding the rule of law in this country, and we should never doubt the government’s commitment to the role the Attorney General must play.
That said, I would like to take a minute to say a few words about what I can and cannot discuss here today. Although the facts remain uncertain, those that have been mentioned so far raise serious questions about the way in which the decision to initiate a prosecution is made.
We must provide Canadians with the transparency they deserve but in such a way that preserves rather than undermines the following: the right to a fair hearing in cases that are currently active, the integrity of the position of the director of public prosecutions, and the rule of law in our country more generally.
Furthermore, any responsible review must account for the fact that SNC-Lavalin is currently engaged in two legal proceedings involving matters related to the subjects under consideration today.
In other words, we must recognize that transparency can only happen if we approach conversations like today's and the ones that will follow in a considered and responsible manner.
Here is what I can talk about. There are three areas that I will be able to speak to today. The three areas reflect the three topics identified in the motion that this committee passed last week: first, the Shawcross doctrine, as well as its general implications to the matter at issue; second, discussions between the Office of the Attorney General and government colleagues; third, remediation agreements.
First, I want to be clear with the committee that while I had a general knowledge of this matter as a Montreal MP, I did not speak with the or any member of his office about it prior to my appointment as Attorney General.
Second, I am ready to discuss legal parameters concerning the role of the Attorney General in Canada and how those of us who are granted the honour and responsibility of the position must interact in cabinet. My view is that while the Attorney General must be able to make decisions independent of partisan considerations or direction, the Attorney General is also not an island. These are not easy decisions that face any Attorney General, and his or her ability to get the answer right on behalf of all Canadians is only improved through discussion and debate with the rest of cabinet and the experiences and views that they reflect.
For the purposes of this committee, it is important to understand what this relationship means in terms of what may or may not be protected by legal privilege. Privileged conversations will only occur between a lawyer and a client when the purpose of the conversation is to seek or give legal advice and the communication is intended to be confidential.
In my view, there will be many instances where a conversation between an Attorney General and his or her cabinet colleagues will not necessarily be in the framework of a solicitor-client relationship and therefore not be protected by this privilege. In particular, the Shawcross doctrine contemplates that where the Attorney General and not cabinet is the final decision-maker, he or she may consult his cabinet colleagues. Conversations of this nature are not inherently privileged by solicitor-client privilege. There are a range of opinions in both case law and academic commentary as to what aspects of these conversations might be covered by solicitor-client privilege.
Let me be very clear. I am not saying that there should be a rush to a comprehensive waiver of privilege without the benefit of details and regardless of any impact on ongoing legal proceedings, as some on the opposition benches have suggested should be the case. What I am saying, however, is that a policy debate between an Attorney General and a colleague at cabinet concerning a decision that the Attorney General must make is not inherently covered by solicitor-client privilege, whatever other protections may apply, depending on the facts of the case.
Finally, if it remains helpful to this committee, I believe we can discuss remediation agreements in general. It may be helpful for Canadians to understand some of the reasons that Canada has the mechanism in place, why other countries such as the United States and the United Kingdom also use them, and how they work in practice. I can also speak to the kinds of circumstances where a remediation agreement might be available.
On a related point, I can speak to the legal mechanism that allows the Attorney General, rather than the director of public prosecutions, to assume responsibility for a specific decision on a specific prosecution. On this point, I think it's important to note that the statutory regime is designed to protect the rule of law and shield prosecutorial decision-making, by ensuring that any decision on the part of the Attorney General to follow this course of action must be transparent to the Canadian public and include publication in the Canada Gazette.
Here is what I cannot talk about. I believe a discussion of those three areas will constitute a full response to last week's motion, in addition to an effort to assist the committee in its review of the allegations at issue. However, as I mentioned before, I wish to make clear in advance that there are also certain areas where I believe it would be irresponsible of me to speculate, express an opinion, or otherwise speak to matters that could undermine the conduct of ongoing prosecutions or the institution of the Attorney General.
Allow me to be more specific. First, I will not be able today to speculate on conversations I was not a party to. I think it is relevant to mention the fact that the former Attorney General issued no directives on the SNC-Lavalin case nor on any other prosecution, as nothing was published in the Canada Gazette. However, I am not aware of any of the details of the conversations that took place between Ms. Wilson-Raybould and the or his office, other than what the Prime Minister has made public.
Secondly, as I said before, I will not be able to discuss anything that is protected by solicitor-client privilege. Like any attorney, the Attorney General has the legal and ethical obligation to protect the confidentiality of solicitor-client communications. For any attorney general, those obligations are all the more crucial in that they involve the public interest. I will also not address matters protected by litigation privilege. These are matters that, were they disclosed, would compromise the ability of the government or Director of Public Prosecutions to pursue any legal proceedings currently underway or being considered.
Thirdly, I cannot speak of matters discussed in cabinet or with my cabinet colleagues. Canada has a long tradition of preserving the confidentiality of those discussions.
Fourth, I cannot discuss any matter that is currently before the courts. This restriction, commonly known as the sub judice convention, is essential to the protection of the constitutional independence of the judicial process. Consequently, I cannot answer any questions on ongoing legal proceedings. This includes any discussion in my capacity as Attorney General on the legal merits of granting a remediation agreement to SNC-Lavalin.
Finally, in addition to serving as Minister of Justice and Attorney General, I remain a lawyer, which is a profession that I have done my very best to honour for the past 25 years, first as a clerk at the Supreme Court of Canada, and then as a professor of law in the law faculty at McGill University.
I continue to take these obligations very seriously. As such, I will do my best to ensure that my answers today are as transparent and candid as they can be while still making clear to you any obligations of confidentiality that I owe to my client, Canada, that I understand myself to owe.
I now turn the floor over to my deputy minister.
Good morning, Mr. Chair and members of the committee.
Before answering your questions, like my minister, Minister Lametti, said, it is my goal this morning to be candid and transparent with you and to respond to your questions with as much relevant information as I can.
On logistics, please ask me your questions in the official language of your choice, and I will do my best to answer in the same language. However, you may notice that I am more comfortable in my first language, so if I feel that I will be more precise, I will speak in French.
I would like to begin by describing my dual role as the Deputy Minister of Justice and Deputy Attorney General of Canada. I have been in this position since June 2017. In both of these roles, I support the Minister of Justice and Attorney General of Canada in fulfilling his or her responsibilities. My duties include giving legal advice and coordinating the legal advice given by the Department of Justice, supporting the development of legislation and policy that fall within the Justice portfolio, as well as acting as the formal representative of the Crown in all civil litigation involving the Government of Canada. These duties involve a number of principles that Minister Lametti set out for you today and that have been the subject of public commentary.
On any given day, in my role as deputy minister and deputy attorney general, I am involved in communications that are solicitor-client privileged where I also have the duty of confidentiality and where it may be a matter considered to be protected by cabinet confidence. Sometimes one, sometimes two, sometimes all three principles will apply to these communications. Sometimes none of the principles will apply. Whether the principles apply in a given situation is highly fact dependent.
I would like now to talk about the role of the Public Prosecution Service of Canada, which is separate and distinct from the Department of Justice.
The Attorney General is supported by the DPP, the director of public prosecutions. Please note that the DPP is also a deputy attorney general of Canada. The DPP is responsible for initiating and conducting federal criminal prosecutions on behalf of the Crown. The DPP's role is separate and distinct from mine.
While the Director of Public Prosecutions, the DPP, is responsible for conducting federal criminal prosecutions, I can support and provide legal advice to the Attorney General of Canada in exercising his powers under the Director of Public Prosecutions Act. One recent example is the support the department gave to the Attorney General in regard to the directive related to prosecutions of HIV non-disclosure cases.
I have no involvement or role in any prosecution. And, in fact, I am not privy to any evidence with regard to prosecutions. That is entirely the DPP's role. In my role as both a public servant and a lawyer, with the support of my department, I strive to provide government decision-makers with all of the professional and non-partisan advice they need to carry out their duties.
Keeping in mind my role as deputy minister and deputy attorney general and all the duties and obligations that I just described, I would ask for the committee's understanding with respect to the information that I will be able to share.
Having said that, I am prepared to respond to your questions. I will give you the best answer I can in light of my obligations.
I want to make it clear that I came at the very first opportunity the committee invited me and that I have always made myself available to parliamentary committees. I've done over 25 appearances, and they're all on the record. I'm happy to try to assist the committee in its important deliberations.
I have a couple of things that maybe I could make as opening comments, and then I'm willing to take any questions. I'm willing to stay as long as the committee wishes. I have done committee appearances that went into four and five hours at a time until the committee was satisfied. It's entirely in the hands of the committee.
If I can speak to Canadians through you, Mr. Chair, I'd like to say a couple of things because a lot has been said and written in the last few weeks, and I think there are a couple of things that need to be clarified.
I worry about my country right now. I'm deeply concerned about my country right now, its politics and where it's headed. I worry about foreign interference in the upcoming election, and we're working hard on that. I worry about the rising tide of incitements to violence when people use terms like “treason” and “traitor” in open discourse. Those are the words that lead to assassination. I'm worried that somebody is going to be shot in this country this year during the political campaign.
I think it's totally unacceptable that a member of the Parliament of Canada would incite people to drive trucks over people after what happened in Toronto last summer. It's totally unacceptable, and I hope that you, as parliamentarians, are going to condemn that.
I worry about the reputations of honourable people who have served their country being besmirched and dragged through the market square. I worry about the trolling from the vomitorium of social media entering the open media arena. Most of all, I worry about people losing faith in the institutions of governance of this country, and that's why these proceedings are so important.
There are a couple of things from my perspective.
Should Canadians be concerned about the rule of law in this country? No. In the matter of SNC-Lavalin, it is now seven years since the first police raid on the company and four years since charges were laid by the RCMP, and during that entire time and up to today, the independence of the investigative and prosecutorial function has never been compromised. The matter is proceeding to trial.
The director of public prosecutions issued a statement on February 12, which you can find on her website, in the context of the Norman matter, in which she said, “I am confident that our prosecutors, in this and every case, exercise their discretion independently and free from any political or partisan consideration.” That is from the DPP. The only communications with the director of public prosecutions about the potential use of a deferred prosecution agreement, an instrument provided for by legislation, were conducted by the minister, as is appropriate.
In this matter, the laws that you as parliamentarians created around ethics in government are demonstrably working. The prosecutor is independent. The Lobbying Act worked as intended. The Ethics Commissioner self-initiated his own process. In other words, the shields held. The software that is supposed to protect our democracy is working.
Is there two-tier justice in Canada? No. Demonstrably not. Despite the most extensive government relations effort in modern times, including meetings with officials, political staff, the opposition leaders and hate advertising and advocacy by two consecutive premiers of Quebec, the company did not get what it wanted, demonstrably because they're seeking judicial review.
Are we soft on corporate crime? No. As you are discussing, deferred prosecution agreements are an attempt to balance public policy interests. It's a legitimate concern for governments and indeed for everyone that the workers, suppliers, pensioners and communities in which a company operates suffer for the misdeeds of the corporate officers. A deferred prosecution agreement is not an acquittal, an amnesty, an exoneration, a get out of jail free card or a slap on the wrist. It is what it says: It's an agreement to defer prosecution. It is subject to compliance, and it can be revoked.
DPAs were not slipped into Canadian law. There were consultations leading up to the bill that drew 370 participants and 75 written submissions before the December 2017 deadline. I'm sure those submissions would be available to this committee. There was extensive review of the bill provisions at a Senate committee, and that's all on the record.
I'm open to answering questions about any matter the committee wants to ask about. I think I'm pleased to disclose or discuss my contacts with the company and meetings that took place over the course of the last little while, which have come up in media speculation. I'm here to say to you that the Globe and Mail article contains errors and unfounded speculation, and in some cases it's simply defamatory.
With that, Mr. Chairman....
This gives me the opportunity to point out two things.
If she felt, back in September, or October, or November, or December, or at any point that there was inappropriate pressure on her, she had recourse. She could have called the Ethics Commissioner at any time, any day. She could have contacted the at any time, any day.
The is available through the switchboard seven days a week, 24 hours a day, and is working seven days a week. The Prime Minister is interrupted all the time for calls with foreign leaders, security matters, heads-up.
All ministers have the option of reaching the . Give or take a little bit of scheduling and where he might be in private time, and so on, every minister of the cabinet can reach the Prime Minister. There are also several cabinet meetings where people are in the same room and have the opportunity to ask for a pull-aside or a conversation, or to ask, “Can we step out and talk about this?”
There were multiple, multiple, multiple occasions where the minister could have expressed concern to the , and every single day could have picked up the phone and called the Ethics Commissioner.
On October 10, SNC-Lavalin issued a press release for shareholders saying that, for the time being, it had not been invited to have a remediation agreement. You are saying that, five days later, SNC-Lavalin wrote a letter to Prime Minister Trudeau.
I would like to get a copy of that letter, Mr. Chair.
Let's move on. Between the October 15 letter and December 5, no news came. On December 5, Mr. Butts met with Ms. Wilson-Raybould at Château Laurier. We don't know what was said at that meeting, of course.
Today, you are providing us with two letters dated December 6, the day after the meeting with Mr. Butts. In one of those letters, SNC-Lavalin is informed, in response to its letter of October 15, that it must work with Ms. Wilson-Raybould, who is the Attorney General.
So there was no communication between October 15 and December 6. Following the meeting of December 5 with Mr. Butts, a letter was sent to SNC-Lavalin and, at the same time, Prime Minister Trudeau wrote to Ms. Wilson-Raybould that he had received a letter on October 15 informing him that he must take care of the situation. All the correspondence was a follow-up to the meeting with Mr. Butts because, between October 15 and December 5, nothing happened. A meeting took place on December 5, and the next day, two letters were sent.
Can you confirm that, Mr. Wernick?
I'm trying to reconstruct....
The summer was all NAFTA, NAFTA, NAFTA. There was a cabinet retreat at the end of the summer in Nanaimo. I remember the smoke from the fires, as I'm sure you do—and I'm not trying to be facetious. There was a lot being prepared for the fall session and a lot of balls in the air. I did not discuss the SNC matter with anyone that I can recall, frankly. It was in the hands of the prosecution service and the Department of Justice.
Once there was a parliamentary process under way, by that time I think the budget implementation bill had passed the House—rather rapidly if you remember—but it was before the Senate, and there were Senate hearings. I probably have transcripts or summaries of the discussion of the bill because I get them for most bills. I track the progress, as does my office, of legislation that moves through the two chambers of Parliament.
The preoccupation where I would have had any interaction with the former minister was around the rights recognition framework, the indigenous agenda. There's a different story arc there that I'll try to reconstruct. The is unwavering and relentless in his commitment to moving forward indigenous reconciliation, and very impatient, as prime ministers are, to get things done and get things moving. He was concerned that we were losing momentum and traction heading into the last year of the mandate on the rights recognition framework. He was aware, because he'd been briefed, both by the Privy Council Office and his political staff, that there was something of a policy standoff among his ministers. There were different views on a very significant thing, and we were trying to find a way.... Essentially, I'd call it a form of conciliation or mediation to bring people together. You have some experience in the matter. Ministers can have very different views, quite legitimately, about how best to proceed, and cabinet's there to sort these out.
Given that there was so much time being sucked into the NAFTA thing, I was asked to step in and play a bit of a role in bringing together the different views. I do want to say on the record for Canadians that I am deeply hurt on behalf of that her reputation had been trolled over the last little while. There are vile things being said in social media about her in the wake of 's resignation. I worked in the area for most of my career. I want to say on the record there is no Canadian who has worked harder on indigenous reconciliation than the Honourable Carolyn Bennett, and she deserves better from the social media trolls.
There was a legitimate argument within cabinet about how to move forward on the rights recognition framework, and there were discussions that would have taken place on the right approach to child and family services legislation, which I truly hope you're going to see soon in Parliament, the languages legislation and other indigenous matters. played a very particular role in cabinet. She did not ever want to be one of the indigenous affairs ministers. She made that very clear. She did not want to be the indigenous services minister, or the CIRNA minister and be seen as the Indian agent for her own people. She's made that clear in public.
As Minister of Justice—