Justice Committee – February 21, 2019 – After the Transcript

The transcript of yesterday’s hearings and the subsequent scrums and interviews justifies my astonishment.

I am going to skip over the evidence of Mr. Lametti which was so brazenly political as to be useless. With respect to the issue of solicitor-client privilege he said nothing other than they are looking at the matter.

I am going to ignore the hyperbole from the Clerk regarding the perils confronting democracy and his opinions regarding the fine character of the present cabinet.

The Clerk testified that he initiated a call with Ms. Wilson-Raybould on December 19th. During that call he was seeking to find out whether a DPA was still open. He conveyed to her the concerns of the PM and the Minister’s colleagues about the future of SNC and the impact upon it of the prosecution. The Clerk said that this was not in appropriate. I find it very strange that his call was for the purposes of making sure that the Minister was aware of the very factors that could not be considered in deciding whether a DPA with respect to charges under the Corruption of Foreign Public Officials Act (Criminal Code s. 715.32(3)).

It is also interesting that the Clerk testified that PCO has no dealing with the Director of Public Prosecutions. Yet we know as a matter of fact from the trial of VAdm Norman that they do. There is an e-mail in evidence in the abuse of process hearing in that trial where legal counsel at PCO was asking the prosecutor whether they could “engineer the issues” at the trial.

I also find it interesting that contrary to the opinion of the Attorney General and the Prime Minister the Clerk is of the view that neither solicitor-client privilege nor cabinet confidence are applicable to anything that Ms. Wilson-Raybould did or said in this matter.

The last area I find troubling is the invocation of the Ethics Commissioner as a potential response here. The only basis for the Ethics Commissioner’s involvement would be under s. 9 of the Conflict of Interest Act

9 No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.

All the people involved in this process are public office holders, so we at least have jurisdiction. But the Ethics Commissioner is limited to investigating issues of whether public office holders are using their position to further their private interests or the interests of a third party. It has already been settled that acting to advance one’s political interests (that is what politicians do) is not covered by this section.

In order to found a complaint to the Ethics Commissioner Ms. Wilson-Raybould would have to believe that people were acting to further their own private interests or the interests of a third party. That is not the question here. The issue in this matter is that those third parties were inappropriately injecting their political interests into the administration of justice.

I would like people to consider an alternate scenario. Suppose the DPP was prepared to recommend a remediation agreement. Under s. 715.32(1)(d) she must get the consent of the Attorney General. The Attorney-General’s cabinet colleagues then initiate secret conversations with her suggesting that approval of a DPA would be favouritism to Quebec and would jeopardize seats in Western Canada.

I can only say that it appears that the witnesses were attempting to normalize conduct which was previously seen as unacceptable. It is open to the Attorney General to seek policy input but it is not open to people to provide unsolicited advice regarding her decisions. That would not have happened previously.

Author: Tom Jarmyn