Jody Wilson-Raybould: 'I am issuing the strongest warning I can possibly issue'

Here are the most important — and gripping — moments of a phone call between the former Attorney General and the Clerk of the Privy Council that may come to define the SNC-Lavalin scandal

Likely the most explosive component of the detailed brief that former attorney general Jody Wilson-Raybould provided to the House of Commons justice committee this week—which was released publicly late on Friday afternoon—is a recording and transcript of a Dec. 19, 2018 phone call she had with the Clerk of the Privy Council, Michael Wernick. Wilson-Raybould had previously given detailed testimony to the committee on this call; Wernick offered a very different account of its tone and content, but responded to questions about the discrepancies in their accounts by telling the committee, “I did not wear a wire.”

It turns out that Wilson-Raybould effectively had.

LISTEN:  Jody Wilson-Raybould’s phone call with Michael Wernick

The former attorney general said she took the “extraordinary and otherwise inappropriate step” of recording the call because she was alone in her condo in Vancouver at the time, without staff to take notes as was her usual practice, and because “I had reason to believe that it was likely to be an inappropriate conversation.”

At the outset of the conversation, Wernick explained the mood of the Prime Minister and his determination to find a solution given “anxiety” about the jobs at risk:

“So the PM wants to be able to say that he has tried everything he can within a legitimate toolbox to try to head that off. So he is quite determined, quite firm, but he wants to know why the DPA route which Parliament provided for isn’t being used. And I think he is gonna find a way to get it done one way or another. So, he is in that kinda mood and I wanted you to be aware of that.”

Wilson-Raybould made it clear that she found the ongoing discussions of the issue inappropriate, while addressing Justin Trudeau’s idea of seeking additional input from former Supreme Court of Canada Chief Justice Beverley McLachlin:

“Right so, um, I again am confident in where I am at on my views on SNC and the DPA haven’t changed — this is a constitutional principle of prosecutorial independence that, Michael, I have to say, including this conversation and previous conversations that I have had with Prime Minister and many other people around it, it is entirely inappropriate and it is political interference. The Prime Minister obviously can talk to whomever he wants, but what I am trying to do is to protect him. I could have a conversation with Beverley McLachlin, I can call her right now, um, I am just, um, issuing the strongest warning I can possibly issue that decisions that are made by the independent prosecutor are their decisions. We gave her, and them, the tools, the additional tools, I made it very clear at the cabinet table and other places that these tools are at the discretion of the prosecutor, and everybody agreed to that and that there was no guarantee that there would be a DPA in this or any other case. So we are treading on dangerous ground here, and I am going to issue my stern warning, um, because I cannot act in a manner and the prosecution cannot act in a manner that is not objective, that isn’t independent, I cannot act in a partisan way and I cannot be politically motivated. All of this screams of that.”

A couple of times, Wernick says in different ways that Trudeau does not believe he is asking Wilson-Raybould to do anything offside, but merely to use the tools legitimately available to her. Wilson-Raybould disagrees:

Wernick: “I mean, I think his view is that he’s not asking you to do anything inappropriate or interfere. He is asking you to use all the tools that you lawfully have at your disposal.”

Wilson-Raybould: “I know I have a tool under the Prosecution Act that I can use. I do not believe it is appropriate to use it in this case.”

Wernick: “Alright, I mean, that’s clear.”

Immediately after that exchange, Wilson-Raybould questions whether the Prime Minister understands the scale of the problem she is pointing out. She invokes the case of Vice-Admiral Mark Norman—charged with breach of trust for allegedly leaking government documents related to a shipbuilding contract—and also the arrest on an American extradition order of Huawei executive Meng Wanzhou. The attorney general seems to be saying that the government is on solid ethical and legal ground when it comes to the Norman and Meng cases, but not in its handling of SNC-Lavalin. The text alone does not convey the urgency and frustration in Wilson-Raybould’s voice when she replies to Wernick once more:

Wilson-Raybould: “Does he understand the gravity of what this potentially could mean? This is not about saving jobs, this is about interfering with one of our fundamental institutions. This is like breaching a constitutional principle of prosecutorial independence.”

Wernick: “Well I don’t think he sees it as that…”

Wilson-Raybould: “Then no one is explaining that to him, Michael. Like this is, we can stand up in the House of Commons on Norman on—totally appropriately on Norman—on extradition, and we can talk about the rule of law, um, the cases are not dissimilar, the principle or the integrity of how we act and respond to the tools we have available and what we should and shouldn’ t do. Again, just, l don’t know…”

Near the end of the conversation, Wernick warns Wilson-Raybould about a conflict with the Prime Minister:

Wernick: “Alright, um, well I am going to have to report back before he leaves. He is in a pretty firm frame of mind about this so I am a bit worried.”

Wilson-Raybould: “Bit worried about what?”

Wernick: “Well, it is not a good idea for the Prime Minister and his Attorney General to be at loggerheads.”

Wilson-Raybould: “Well, I feel that I am giving him my best advice and if he does not accept that advice then it is his prerogative to do what he wants. But I am trying to protect the Prime Minister from political interference or perceived political interference or otherwise.”

Wernick: “Alright, I understand that, but he does not have the power to do what he wants. All the tools are in your hands, so…”

Wilson-Raybould: “Okay, so I am having thoughts of the Saturday Night Massacre here, Michael, to be honest with you, and this is not a great place for me to be in. I do not relish this place, but what I am confident of is that I have given the Prime Minister my best advice to protect him and to protect the constitutional principle of prosecutorial independence.”

Wernick: “Okay, alright, but l am worried about a collision then, because he is pretty firm about this. I  just saw him a few hours ago, and this is really important to him.”

The conversation ends soon after with both of them tentatively saying “Okay.”