What Jody Wilson-Raybould should tell us about the SNC-Lavalin affair

OTTAWA— Former attorney general Jody Wilson-Raybould has got a story to tell. That much we know.

As all eyes turn to the Commons justice committee, the biggest questions are simple: was she pressed by Prime Minister Justin Trudeau or his officials to drop charges against SNC-Lavalin and cut a deal? Did she feel unduly pressured? If so, why didn’t she resign in protest as attorney general at any point? If not, why then did she resign from cabinet as veterans affairs minister on Feb. 11?

But to tease out answers that will tell a fuller picture — one that will be judged by legal, not just political standards — MPs will have to bear in mind some big principles at play when Wilson-Raybould finally takes a seat, and ask her probing questions even though she still complains she is not fully free to, as she put it, “speak (her) truth.”

Independence of the prosecution

This is a sacrosanct principle in Canada’s legal system. It means prosecutors make decisions on who to prosecute and how to apply the law free from partisan or political influence. It ensures everyone is equal under the law, and the criminal law will be applied equally to accused persons or corporations, no matter how much money or influence they have.

Yet even before Wilson-Raybould’s testimony, academics suggested there was a “troubling” pattern of PMO meetings with Wilson-Raybould under the guise that “robust” and “vigorous” discussions were permissible.

The questions here for Wilson-Raybould boil down to what was her view of the prosecution underway? Did she have a preferred course, or did she leave the decision entirely to Kathleen Roussel, her deputy attorney general and the independent director of public prosecutions? And did Wilson-Raybould regard Roussel’s decision — conveyed on Sept. 4 to the company — not to negotiate a deferred prosecution agreement with SNC-Lavalin as final?

Deferred Prosecution Agreements

Also called remediation agreements, the government introduced these as tool to prosecute white-collar crime to the Canadian justice system in 2018 after public consultations. Subject to a court’s approval, a deferred prosecution agreement spares an accused company a formal criminal conviction that could see it debarred from future contracts in exchange for paying heavy fines, and being required to comply with ethical reforms and independent oversight.

But Wilson-Raybould as justice minister did not sponsor the change to the criminal code. Why was it instead stuffed into an omnibus budget implementation bill?

Was Wilson-Raybould aware of the SNC-Lavalin lobbying blitz to persuade Ottawa to make it the first test case, and grant it a deferred prosecution on bribery and fraud charges?

Did she fear it would set a bad precedent to give a deal to a company that has broken political financing rules and saw former executives plead guilty to bribery in a Montreal hospital construction project? When did she first communicate the DPP’s prosecution decision to the PMO or cabinet and what was the PMO’s reaction?

And a key question for the former justice minister is whether she agrees with Michael Wernick, Canada’s top civil servant, who said the prosecution decision was Wilson-Raybould’s and that decision was “still open” for her to intervene and possibly overrule months afterward, despite the fact the preliminary inquiry on bribery and fraud charges began Oct. 29? Does she agree with Wernick that the decision is still an option “open” to her successor, Justice Minister David Lametti? Does that amount to intervening to stop a criminal trial?

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The Meetings

We know of four times that Trudeau or his aides met with Wilson-Raybould or her staff, first in September and then a flurry of meetings in December. We don’t know if they were the only times it was raised with her, the tenor of the discussions, or even why SNC-Lavalin was raised.

Now it will be important for MPs to drill down to the purpose of the meetings and their tone.

Does Wilson-Raybould view these meetings as inappropriate? And if Wilson-Raybould felt she was being pressured on the file, did she view it as “undue” or “inappropriate” and why? Did Wilson-Raybould ever advise the prime minister or any of his officials that they were either dangerously close to or had crossed a line in talking to her about the SNC-Lavalin charges? If not, why not?

This is a critical question at the heart of these allegations.

One of those participants, Trudeau’s principal secretary Gerald Butts resigned last week although he insists there was nothing wrong with his or the PMO’s interactions with Wilson-Raybould. But Michael Wernick and Trudeau’s chief of staff Katie Telford remain in their posts.

Wilson-Raybould’s recollections of all these meetings could raise uncomfortable questions for those two.

Cabinet solidarity

Trudeau said publicly that if anyone including his former justice minister had felt “undue pressure or felt that we were not living up to our own high standards of defence of the rule of law and our judicial system and judicial independence, it was their responsibility to come forward and at no time in the fall did the former attorney general come forward to me.”

Mary-Ellen Turpel-Lafond, a former judge, law professor and now practising lawyer, testified in fact that Wilson-Raybould in her role as chief prosecutor of Canada had a legal obligation to stand her ground, face those who would pressure her and not resign — if indeed she was pressured.

Other legal experts such as UBC assistant law professor Andrew Flavelle Martin have argued if Wilson-Raybould was pressured she had a duty to step down and publicly expose the reason why.

This too is a key question. Why didn’t Wilson-Raybould resign at any point prior to February to protest any interference or attempted interference at all in a criminal prosecution?

Wilson-Raybould remained in cabinet even after Trudeau shuffled her out of her job as attorney general and justice minister. We don’t know what Trudeau told her as the reason she was being moved, whether she bought his explanation, or viewed it as a demotion. We do know she appeared to do a slow burn at the cabinet shuffle, and later that day released a 2,000-word statement touting her achievements as justice minister and underlining the need for “our system of justice be free from even the perception of political interference.”

So what reason did Wilson-Raybould give the prime minister when she finally resigned on Feb. 11 after the prime minister touted her continued presence in cabinet as evidence that the cabinet was united?

Was it principle or petulance that lay behind her decisions?

Government’s version of events, Shawcross doctrine and caucus solidarity

From the first day the allegations broke on Feb. 7 in the Globe and Mail, Trudeau branded them as “false” and said there was no undue influence exerted on Wilson-Raybould.

Trudeau and his cabinet ministers have tried to continue that narrative since then, but explanations have evolved as details of meetings emerged.

Wernick called all discussions with Wilson-Raybould “lawful advocacy.” So just what does Wilson-Raybould think of the Liberal government’s reliance on the so-called “Shawcross doctrine” to pursue what it admits were “vigorous” discussions with her? That is a concept imported from the U.K. which suggests that cabinet members can have robust discussions about what constitutes the public interest in a prosecution without crossing any lines.

A final key question — and one that could influence whether Wilson-Raybould remains in Liberal caucus as she has done to now — is how Wilson-Raybould’s recollections mesh with the government’s line.

Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamacc

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