Prime Minister Justin Trudeau has lifted most constraints over solicitor-client privilege and cabinet confidences that former justice minister Jody Wilson-Raybould had requested to allow her to testify about sustained government pressure to influence the criminal prosecution of Quebec engineering giant SNC-Lavalin.
Mr. Trudeau issued a cabinet order-in-council that waives solicitor-client privilege and cabinet confidence except for conversations about the SNC-Lavalin affair between Ms. Wilson-Raybould and Kathleen Roussel, the director of the Public Prosecution Service of Canada.
“In order to uphold the integrity of any criminal or civil proceeding, this authorization and waiver does not extend to any information or communication between the former Attorney-General and the Director of Public Prosecutions concerning SNC-Lavalin,” according to the cabinet order posted on the government website late Monday night.
Kate Purchase, the Prime Minister’s executive director of communications and planning, said the waiver also frees up anyone else in government who discussed this matter with Ms. Wilson-Raybould. This would include chief of staff Katie Telford and former principal secretary Gerald Butts.
Ms. Wilson-Raybould is expected to testify before the House of Commons Justice Committee this week.
The former attorney-general retained former Supreme Court of Canada justice Thomas Cromwell to help negotiate the waivers.
In a letter Monday to Anthony Housefather, the Liberal chair of the justice committee, Ms. Wilson-Raybould expressed concern about testifying before the parliamentary committee unless she had assurances that she would not be violating solicitor-client privilege or cabinet confidentiality.
“I am anxious to appear at the first available time,” Ms. Wilson-Raybould wrote. She also said she wants a half hour to first lay out her side of the story. “When I appear, I request the opportunity to make an extended opening statement of approximately 30 minutes during which I propose to give the Committee my best recollection of all the relevant communications about which I may properly testify.”
Mr. Trudeau had told the Commons Question Period on Monday that Ms. Wilson-Raybould would be permitted to speak publicly about some of the details of the SNC-Lavalin controversy − providing she steers clear of two active court cases involving the Montreal engineering firm. Those involve the government’s fraud and bribery prosecution of SNC-Lavalin and the company’s request for a judicial review of the matter.
University of Ottawa law professor Errol Mendes said the cabinet order is broadly written and will allow Ms. Wilson-Raybould to discuss any conversation that she had with the Prime Minister, his senior staff, and Privy Council Clerk Michael Wernick about the SNC-Lavalin case.
“She basically got what she wanted. And I presume this should satisfy her in terms of any concerns about solicitor-client privilege and cabinet confidence,” Prof. Mendes said. “So they are basically saying ‘go ahead and talk as much as you want.’’
However, Jennifer Quaid, also a law professor at University of Ottawa, said it’s disappointing that conversations between Ms. Wilson-Raybould and Ms. Roussel are off limits for testimony.
“Those are the communications we need to see to understand and place in context the comments by government and PMO officials to Jody Wilson-Raybould," she said. "If we don’t know why Public Prosecutions Canada turned down SNC-Lavalin then we have no idea whether there was pressure in any real sense.”
Ms. Roussel informed SNC-Lavalin on Sept. 4 that she had rejected its request for a negotiated settlement without trial. Ms. Wilson-Raybould later declined to override the decision of the prosecution service and direct it to stay the court proceedings. It is unknown why Ms. Roussel rejected a negotiated settlement.
Ms. Wilson-Raybould has remained largely silent since The Globe and Mail reported on Feb. 7 that the Prime Minister’s Office put pressure on her to drop the prosecution of SNC-Lavalin in exchange for fines and an admission of wrongdoing, known as a deferred prosecution agreement.
In the fallout, Ms. Wilson-Raybould resigned from cabinet and Mr. Butts, stepped down. Ethics Commissioner Mario Dion also launched an inquiry.
Despite the rift with the PMO, Ms. Wilson-Raybould appears to have maintained good relations with some of her former cabinet colleagues.
Treasury Board President Jane Philpott told reporters that she has kept in contact with her friend.
“She’s doing very well. I’ve been in regular communications and our colleague is doing fine,” Ms. Philpott said.
On Monday, Conservative Leader Andrew Scheer introduced a motion in the Commons to request that Mr. Trudeau appear at the justice committee to explain his role in the SNC-Lavalin affair. That motion was defeated by the Liberal majority in the Commons.
Mr. Scheer told the House that he believes the Prime Minister improperly, “if not illegally," interfered in a criminal prosecution.
Privy Council Clerk Michael Wernick, the country’s top bureaucrat, told the justice committee last week that Ms. Wilson-Raybould was warned several times about the economic consequences of a criminal conviction of SNC-Lavalin. But he denied that she was subjected to “inappropriate pressure” to shelve the prosecution.
In Question Period, NDP MP Murray Rankin went over the events that led to Ms. Wilson-Raybould’s demotion to Veterans Affairs in a cabinet shuffle in early January.
After the Public Prosecution Service of Canada informed SNC-Lavalin on Sept. 4, 2018 that it would proceed with the criminal prosecution, Mr. Trudeau and Mr. Wernick met Ms. Wilson-Raybould two weeks later to warn about the economic consequences of a conviction.
When Ms. Wilson-Raybould said she would not intervene in the case, Mr. Rankin noted the Prime Minister’s top aides – Ms. Telford and Mr. Butts – discussed the prosecution on Dec. 18 with the justice minister’s chief of staff Jessica Prince. The next day, Mr. Wernick called Ms. Wilson-Raybould to say the Prime Minister was “anxious” about the company’s fate.
All three of those conversations took place months after federal prosecutors decided to proceed with the criminal prosecution of SNC-Lavalin, a decision backed by Ms. Wilson-Raybould.
The Liberal government has frequently invoked the Shawcross Doctrine, a legal principle, to defend the right of government officials or cabinet ministers to approach Ms. Wilson-Raybould and discuss the economic consequences of allowing SNC-Lavalin to be prosecuted and convicted.
Mary Ellen Turpel-Lafond, however, a former judge who teaches law at the University of British Columbia, cautioned MPs on the justice committee about this use of the Shawcross Doctrine, a constitutional convention in Britain that has been accepted into Canadian law.
“The Shawcross Doctrine is a fairly flimsy basis to blanket oneself in terms of a public official saying ‘I can approach the attorney general and vigorously attempt to persuade her to another view,’ ” she said.
“I think that is a fairly flimsy foundation in terms of lawful authority."
Liberals defenders of the Trudeau government have also questioned why Ms. Wilson-Raybould didn’t resign when she came under pressure on SNC-Lavalin.
Prof. Turpel-Lafond however said there could be a “rational explanation as to why an attorney-general acting as chief prosecutor and chief law officer of Canada would not resign when their prosecutorial independence is challenged” in Ottawa.
“I think it is a constitutional requirement consistent with the rule of law in Canada that prosecutors do not resign; that they stand firm in the face of pressure, if there is pressure … and they stand firmly in the defence of law.”
Robert Fife
Steven Chase