It was another day full of plot threads in the ongoing Double-Hyphen Affair and its associated fallout, and boy oh boy was there some overwrought rhetoric throughout the day. First up was the release of that memo that the Deputy Minister of Justice apparently wrote for PCO about DPA but was blocked by Wilson-Raybould from being delivered, and it outlined areas where SNC-Lavalin may still be able to bid on federal contracts if they did not get a DPA and was convicted. Wilson-Raybould claims she don’t recall blocking the release, and said that Michael Wernick should have taken her word that she considered it. (Kady O’Malley’s Process Nerd column adds this to the list of unresolved plot points in this Affair). Following this was the Daughters of the Vote event, where a number of the attendees walked out on Andrew Scheer, and others stood up and turned their backs to Justin Trudeau in solidarity with Wilson-Raybould and Philpott. Trudeau also took a number of questions from the attendees, and many of them were not friendly. Before Question Period, Philpott and Wilson-Raybould scrummed on their way into the House of Commons, Philpott saying that trust was a two-way street, and Wilson-Raybould said that interference in a prosecution was “unconscionable,” echoing Trudeau’s words, and that she made the recording to protect herself from “danger.” And then came QP, which was largely 45-minutes of policing each other’s feminism. Because of course it was.
And then came the inevitable bombshell. It’s starting to feel like this is becoming a daily occurrence, this little game of tit-for-tat, where those anonymous senior Liberals leaked to both the Star and CBC that there had been weeks of negotiations between Trudeau’s office and Wilson-Raybould on what it would take for them to end their rift, and Wilson-Raybould had a list of demands, which included firing Gerald Butts and Michael Wernick (done), an apology of some sort, and assurances that David Lametti would be instructed not to override the Director of Public Prosecutions on the SNC-Lavalin file – and it’s this one that’s pretty problematic, because it sounds an awful lot like she wants the prime minister to interfere in the decision of the Attorney General on an ongoing prosecution. One might say it’s political pressure – especially given the continued media leaks and dribbling of information. If these negotiations are true, it could explain why it took Trudeau so long to come to the decision to oust them, but even then, it all starts to feel like a bit of a bad play where the threat is brand damage, and a calculation that it’s survivable in the face of other options. I guess we’ll see what the rebuttal to this will be. And the subsequent rebuttal. And so on.
So she allegedly wanted the new AG ordered not to consider overriding the DPP on a remediation deal for SNC-Lavalin? Sounds a bit like political pressure. https://t.co/As6bXkkI4P
— kady o'malley (@kady) April 4, 2019
But let’s say a new AG legitimately disagreed and wanted to issue a directive. If JT had complied, then wouldn’t he be politically interfering in the discretion of the new AG?
She was essentially demanding he commit to do what she accused him of.
— Robert Glasgow (@TheTradeLawGuy) April 4, 2019
Chantal Hébert notes that wherever Wilson-Raybould and Philpott wind up, they would find that most other parties have their own internal divisions as well. Emmett Macfarlane thinks that if the decent people in the PMO and among the Liberal caucus had simply exercised some self-reflection, the expulsions would not have been necessary. Sarmishta Subramanian looks at some of the odd media narratives that have emerged throughout this whole Affair, where some cases see the media doing the spin for the parties without them even bothering to.
Good reads:
- The Canadian International Trade Tribunal ruled that the anti-dumping tariffs on Canadian steel were too high. The industry says they’re find and wants them kept.
- The Privacy Commissioner plans to look into who leaked information about the last Supreme Court of Canada appointment process.
- The advisory committee that is supposed to help Veterans Affairs deal with mental health issues was kept out of the loop on changes to the disability questionnaire.
- The external oversight board for the RCMP was supposed to be in place on Monday, but will be delayed until “later this spring.”
- The government investigated the leak about Omar Khadr’s settlement, but won’t say if they called in the RCMP (like they did with the VADM Mark Norman case).
- Maclean’s has an excellent look at the growing problem of using former Supreme Court of Canada justices as legal counsel, particularly for political cover.
- Irving claims that they threatened a journalist with legal action to protect the reputation of Canadian shipbuilding. National Defence disputes this.
- EDC is reviewing their 2011 decision to extend insurance to SNC-Lavalin on a bid in Angola that they learned may have been won through bribes.
- One former and would-be future Liberal candidate has withdrawn his name after the ouster of Wilson-Raybould and Philpott.
- Manitoba is now launching their own (likely doomed) court challenge of the federal carbon price backstop.
- Here’s an exploration of Alberta electoral dynamics, and why it may not be a lost cause for Rachel Notley.
- Susan Delacourt reflects on the Daughters of the Vote event on the Hill.
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This morning on The Current Dr. Philpott said snc did “not qualify” for a deferred prosecution agreement. Is this new information. How would she know this given secrecy of the DPP’s decision? My understanding of the situation is that we don’t
know why the DPP did not want to enter into discussions for a remediation agrrement. Not meeting the eligibilty factors to my knowledge has never been stated as the reason.
Any thoughts?
Some lawyers have stated that’s the case based on their reading of what’s public. We haven’t seen the DPP’s report, and according to the JWR/Wernick tape, Wernick hadn’t either before that call, because it’s precisely what he was calling to ask about. He may have after if JWR’s chief of staff forwarded it to him like she said she was going to after the call. And it’s possible they don’t qualify, but we haven’t seen anything definitive.
Apparently, Wernick had not seen the section 13 notice, according to JWR’s words:
“The prosecutor sent me what’s called a Section 13. You told me you hadn’t seen it before but I read it, and re-read it, and the Prime Minister’s Office has a copy of it. She explains in it why she’s not doing it in this case.” [8:00]
I disagree that the notice was what he was calling about; it comes at the very end of the call [15:55], almost as an afterthought or a way to sign off. Throughout, his emphasis has been on what the PM wants, and the determined mood Trudeau is in.
Finally, it is not to himself that he suggests JWR’s chief of staff send the document to, but the PMO.
“My advice is Jessica should send it to Elder then, just to make triply sure that they have it. [16:36]
“OK, I’ll get her to do that right now.” [16:44]
Waiting till near the end doesn’t mean it wasn’t important. It might have been the whole point of the conversation that he had to work up to. I sensed a subtext there. But then that’s the frustrating aspect of the tape. It verifies what you believe on either side.
I’ll concede that that’s possible.
In support of that possibility, there are these curious words from Wernick, after JWR says that the PMO has had the section 13 notice since September:
“September. OK. That’s important. That’s new to me. So, OK. [pause] Alright, um” [15:58]
Why is this important, and why is this new to him?
It’s not necessary to have seen the Section 13 Notice in order to come to the conclusion that SNC-Lavalin was not an appropriate candidate for an RA/DPA.
The Director of Public Prosecutions might very well have determined that the company did not qualify under 715.32 (1) (b) because the offence was “committed for the benefit of, at the direction of, or in association with a criminal organization,” which is to say, the Gaddafi kleptocracy.
Further, SNC does not fair well with respect to 715.32 (2) (a) since it only ‘got religion’ once caught, or with respect to 715.32 (2) (g) since it was a repeat offender and already subject to “a previous remediation agreement or other settlement,” such as the one with respect to illegal campaign contributions in Canada.
And, as I’ve noted before, under 715.32 (3) the Prosecutor “must not consider the national economic interest…or the identity of the organization,” which rules out the jobs and ‘key companies’ arguments.
It’s worth observing here that (Don Johnston’s musings notwithstanding), the OECD Working Group on Bribery still considers Canada bound as a Party to the Anti-Bribery Convention which (as does our Criminal Code) prohibit bringing “political factors such as a country’s national economic interest and the identity of the alleged perpetrators” into play [Working Group Statement of March 11, 2019].
All parties have their differences and many members disagree with their braintrust. As for the conservatives their best reflex of dissent in their party comes with the thumb and forefinger pinching their noses and following the leader. Ask First Nations, Immigrants, the hungry. Grassy Narrows, The Duffy scandal, the cash envelopes to Mulroney, their maintenance of women as unequal to men, the denial of a woman’s right to choose, the list goes on and on. Lots of nose pinching by the Tories.
@PB
Yes, that seemed significant to me. And he says “my advice”..is to resend it (which, why hadn’t she already? Someone says they didn’t get something you sent months ago, you don’t keep going, I did send it.)
I think that’s the only time in the whole conversation he says “my advice”. Together with the legal opinion that she told the DM not to send, it suggests there could have been a pattern of withholding documents they needed to see. There were things alluded to in the texts between her and Gerry Butts (about the First Nations directive, I think) that hinted at that, too. It’s very frustrating to work with someone who hoards information from you, especially in a passive-aggressive way, where you have to keep asking for it.
While my sympathies lie entirely with JWR and JP, I have to wonder whether the former AG could not have done a better job of explaining herself and the process.
For instance, small detail, the Clerk seems really clueless about the section 13 notice, calling it the “argument” or “response”.
Similarly, he doesn’t seem to grasp the difference between the new Deferred Prosecution regime and the Prosecution Act… when JWR says it’s (intervention in a prosecution) never been done before, he says, “Of course it hasn’t been done before because Parliament only created the instrument barely a year ago, so…” [7:32]
At the end of the day, Wernick may (inadvertently?) have hit it on the head: ” I mean, I I think people are talking past each other.” [11:38]
I was struck with that, too, that for someone who was supposedly so threatening and invested in the decision, he didn’t seem super-interested in the legislation. What he seemed to want was a smoother relationship between everybody.
I also think he got to the point, about people talking past each other. I don’t think it was inadvertent, I think that was his diagnosis. But since she wasn’t listening to what he said, it was to no avail.
You might have guessed, my sympathies don’t lie with the two ex-Liberals. Wernick ironically comes across as much milder in private (or when he thinks it’s private) than he did at the committee.