The obstacles that federal Ethics Commissioner Mario Dion faced in investigating the SNC-Lavalin affair demonstrate why an independent body or commission is still needed to fully probe what happened, one legal expert says.
Mr. Dion delivered a report last week concluding Prime Minister Justin Trudeau broke the Conflict of Interest Act by improperly putting pressure on former attorney-general Jody Wilson-Raybould to intervene in the SNC-Lavalin criminal case. The Ethics Commissioner also said he had been hampered from conducting a full investigation because nine witnesses were prevented from sharing information that they felt was relevant.
“In the present examination, I have gathered sufficient factual information to properly determine the matter on its merits. Because of my inability to access all cabinet confidences related to the matter I must, however, report that I was unable to fully discharge the investigatory duties conferred upon me by the Act,” he wrote.
These nine people, whom he did not identify, told him revealing this information would breach cabinet confidence. The Privy Council, the bureaucratic agency that serves the Prime Minister’s Office, declined Mr. Dion’s request to waive cabinet confidence. Cabinet confidences normally refer to information that would reveal deliberations of cabinet.
Mr. Trudeau had already partly waived cabinet confidence so Ms. Wilson-Raybould and others could speak to a parliamentary committee about the matter. A lawyer for Mr. Trudeau told Mr. Dion the Prime Minister played no role in Privy Council Clerk Ian Shugart’s decision to deny this requested waiver.
“The refusal by PMO/PCO to provide all documentation to the Ethics Commissioner – coupled with the decision to deny nine public officials a release from so-called cabinet or other ‘privilege’ so they could be interviewed in the investigations by the independent commissioner – are decisions that fall short of the required transparency and cooperation expected given the gravity of the matters raised by this situation,” retired judge and law professor Mary Ellen Turpel-Lafond said.
Ms. Turpel-Lafond was one of the legal experts called before a House of Commons justice committee in February when it began probing the matter. The Liberals shut down the hearings after five sessions, saying they would leave the matter to the Ethics Commissioner.
“Legal experts like myself remain concerned that events have not been fully probed by an independent body or commission – and the safety of the system of independent prosecutions may be compromised," she said.
"… Co-operation by PCO/PMO with the Ethics Commissioner was not sufficient nor was it to the standard of transparency.”
Opposition MPs have called a meeting of the House of Commons ethics committee for Wednesday afternoon, where they will try to persuade the body, dominated by the governing Liberals, to hear testimony from Mr. Dion and the nine witnesses.
Mr. Dion’s office has said he would be available on short notice if the committee invites him to discuss his report.
Ian Brodie, who served as a chief of staff to former prime minister Stephen Harper, said the responsibility for waiving cabinet confidences in this matter ultimately rests with Mr. Trudeau. “Given that all these confidences around the [Jody Wilson-Raybould] effort belong to Mr. Trudeau, he could just instruct the clerk to release everything. The clerk is not the decision-maker.”
Conservative MP Peter Kent, a member of the Commons ethics committee, said he thinks Mr. Trudeau’s refusal to waive cabinet confidences for the nine witnesses is the latest example of how the Prime Minister has tried to block complete disclosure of what happened. He said he hopes the Liberals will allow hearings now. “Parliament is still in session … and there is plenty of time for us to exercise our committee duties and obligations.”
A spokesman for Liberal Government House Leader Bardish Chagger said it’s up the committee, not the government. “Parliamentary committees are independent. We respect their independence,” Mark Kennedy said.
Legal experts said they doubt Mr. Trudeau’s refusal to waive cabinet confidence amounts to an obstruction of justice.
University of Ottawa law professor Jennifer Quaid said she does not believe Mr. Trudeau’s conduct with respect to the cabinet confidences can be construed as obstructing justice.
“Proving the specific intent to subvert the course of justice is not easy and will require strong evidence about the purpose sought by the prime minister in refusing to waive cabinet confidence,” Prof. Quaid said.
University of Waterloo political-science professor Emmett Macfarlane said whether the Prime Minister could or should be lawfully compelled in certain circumstances to waive cabinet confidences is a matter for courts. “Rather than an indication of some sort of illegal action like obstruction of justice, the Prime Minister’s refusal to waive these restrictions is a political and ethical issue, in my opinion.”