The real scandal in the SNC-Lavalin affair

Last week, Clerk of the Privy Council Michael Wernick delivered some jaw-dropping evidence at the House of Commons Committee on Justice and Human Rights hearing into allegations that inappropriate political pressure was directed at former attorney general Jody Wilson-Raybould to cut SNC-Lavalin a sweetheart deal.

True, Wernick was clear in his defence of the government. He held firm that there was “no inappropriate pressure on the minister at any time.” According to him, it was all simply, “lawful advocacy.” 

But, perhaps this is not an issue where Wernick’s opinion should rule the day. After all, Wernick was not privy to all the SNC discussions, so it is unclear how he can be so sure there was never any inappropriate pressure.

Nor can we lose sight of that fact that Wernick is far from a disinterested party in this sordid affair. Wernick’s reputation is on the line. So, jaws should have hit the floor when, at the end of a long day in the hot seat, Wernick seemingly and unwittingly implicated himself in wrongdoing.

Because when you strip away Wernick’s opinions and look at the facts, the conclusion that there was a co-ordinated effort to have Wilson-Raybould change her decision seems unavoidable. In reality, there need not be much daylight between Wernick’s version of events and the evidence of Jody Wilson-Raybould for the government to have crossed the Shawcross line into inappropriate and potentially illegal behaviour.

First, a reminder of how we got here.

SNC-Lavalin was a bad actor. There can be no sugarcoating that fact. The World Bank has blacklisted SNC over high-level allegations of conspiracy. And the company has been implicated in multiple corruption scandals, including illegally donating more than $83,000 to the Liberal Party.

Currently, SNC is facing criminal charges relating to allegations of bribing Libyan officials in exchange for construction contracts between 2001 and 2011. Apparently, SNC really wanted to help Muammar Gaddafi build some prisons.

A conviction would result in a 10-year ban on bidding on federal contracts — a ban that could destroy the company.

But there is a way out. You see, after intense lobbying by SNC, a brand new get-out-of-jail-free card was buried in a 2018 omnibus, budget-implementation bill. The new deferred prosecution agreement provision would allow prosecutors, if SNC met certain legal criteria, to drop criminal charges.

But on Sept. 4, 2018, the director of public prosecutions, Kathleen Roussel, decided against offering SNC any deals. It was probably a pretty easy call because SNC met virtually none of the factors in the new legislation to justify the sweetheart deal.

So, SNC began lobbying for Jody Wilson-Raybould to overrule the director of public prosecutions.

Wilson-Raybould could do it, but that decision is hers and hers alone. The principle is called the Shawcross doctrine and it’s pretty simple: The responsibility for prosecutorial decision, such as overturning the SNC decision, rests with the attorney general, and she is not to be put under any pressure by the government.

And this is where Wernick’s evidence becomes important. Because his evidence, examined in context, leads inextricably to the conclusion that there was pressure put on Wilson-Raybould to reverse the SNC decision.

And here is where the timeline, as confirmed by Wernick, matters.

On Sept. 4, 2018, Roussel confirmed to SNC that she would not offer the company a deferred prosecution agreement. 

Wernick testified that shortly after that decision was made, Prime Minister Justin Trudeau raised the SNC issue with Wilson-Raybould. She did not seek his advice. He came to her. Liberal insiders have described that meeting as a “vigorous debate” and Trudeau confirmed that after that debate Wilson-Raybould asked if she was being directed to reverse her decision.

Demonstrating a strange and personal touch, Warnick met with SNC the following day to tell the company that the decision had been made and the prosecutor’s decision would not be overturned. He said the only route SNC had was through its lawyers and the court process.

SNC, however, seemed to think there were indeed other routes because, in October, it continued to lobby senior members of the PMO.

It must have worked because on Dece. 5, 2018, Gerald Butts — the same Gerald Butts who resigned from the PMO because of the SNC affair — held a private meeting with Wilson-Raybould. The Liberal-controlled justice committee blocked efforts to subpoena Butts to testify, but it would stretch credulity to think the Butts meeting was not an attempt to press Wilson-Raybould on her decision.

Wernick also confirmed that, on Dec. 18, 2018, senior staff from the PMO called Wilson-Raybould’s office to re-engage on the SNC matter. Remember, Wilson-Raybould had already made her decision, there had already been an unsolicited vigorous debate  and there had been a followup meeting with Trudeau’s principle secretary, Butts.

And then Wernick delivered the most damming evidence of inappropriate pressure — his own.

On Dec. 19, 2018, the day after the PMO’s phone call to Wilson-Raybould’s office, Wernick intervened directly.

To be clear, Wilson-Raybould was not seeking advice. But Wernick sure did give it. He told Wilson-Raybould that “her colleagues and the prime minister were quite anxious” and there was concern over what the economic impact would be.

If the first conversation with Trudeau in September was a vigorous debate and the repeated contact by the PMO was simply lawful advocacy, then Wernick’s conversation could easily be seen as pressure that crossed the Shawcross line.

Trudeau, the PMO and Wernick all shared the view that a deferred prosecution agreement should be offered to SNC. This is why they continually engaged Wilson-Raybould on the issue. These overtures were indeed advocacy, but how can they not be seen as pressure to reverse her decision? Think of the workers. Your colleagues want you to do it. The prime minister wants you to do it. A lot of people are worried about the decision you made. You know what we all want you to do. But the decision is yours.

If indeed there was unsolicited but lawful advocacy, at some point, the camel’s back must have broken under the repeated pressure.

Wernick testimony also disclosed that he asked Wilson-Raybould to take into account illegal factors. Although one of the stated purposes of deferred prosecution agreements is to reduce negative consequences for innocent workers, the factors listed in the Criminal Code favouring remediation agreements are silent on economic interests. But it gets worse because the Criminal Code specifically prohibits considerations of the national economic interests — a factor that seemed to weigh heavily in Wernick’s “lawful advocacy.”

So, not only was pressure put on Wilson-Raybould to reverse her decision, but there was pressure to make a decision based on factors that were not available in law.

Wenick told the justice committee that he was “sure the minister felt pressure to get it right.” And it seems that Wenick, Butts, the PMO and Trudeau himself went to great lengths to tell her what the right decision was.

And that is the real scandal.