Front Burner - A secretly-recorded phone call, and the growing SNC-Lavalin scandal

Episode Date: April 1, 2019

CBC Power and Politics host Vassy Kapelos breaks down the secretly-recorded phone call between former Attorney-General Jody Wilson-Raybould and former Privy Council Clerk Michael Wernick - as the SNC-Lavalin controversy grows.

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Uncover. The Village. Coming April 2nd. Hello, I'm Jamie Poisson. Does he understand the gravity of what this potentially could mean? This is not just about saving jobs. This is about interfering with one of our fundamental institutions. This is like breaching a constitutional principle of prosecutorial independence. So we can...

Well, then nobody's explaining that to him, Michael. What you heard there is part of a phone call between former Attorney General Jody Wilson-Raybould and Michael Wernick, the Privy Council's clerk, who was trying to get across Prime Minister Justin Trudeau's perspective. They were talking about SNC-Lavalin and the possibility of the engineering firm getting a kind of plea deal, a deferred prosecution agreement, because the firm is currently facing corruption charges in court. The phone call was polite, but also at times pretty tense. Wilson-Raybould secretly recorded Wernick and she submitted this audio along with emails and documents for the Justice Committee to consider. And depending on where you stand on this

issue, whether you believe Jody Wilson-Raybould's allegations of partisan political pressure or the Prime Minister's office insisting that nothing improper happened here, you're likely to come to very different conclusions about what was said in this phone call. Nothing illegal took place. There was nothing unlawful. He threatened her job and he threatened her position. There's no question about it. And he did it on the behest of the Prime Minister. her position. There's no question about it. And he did it on the behest of the prime minister. So what was said and where do we go from here? That's today on FrontBurner. Vashi Kapelos, the host of Power and Politics is back again. Vashi, how are you? Here we are again. Yes, here we are again. So in the spirit of March Madness, we're going to do some color commentary on chunks of this phone call in a minute. But first, right off the top, reactions to the contents of the call,

which was made back in December. But what have you been hearing from people? Well, I think unsurprisingly, the reaction kind of divides along the line of where people fall at this point. So you see people who are sympathetic to the arguments that Jody Wilson-Raybould had already put forward, this idea that she thought that the independence of the prosecution was paramount and that she thought that any type of intervening would be inappropriate. And you hear that echoed in the conversation often. intervening would be inappropriate. And you hear that echoed in the conversation often. And I think people that are sympathetic to that argument are sort of supportive of what they hear in the call. On the other side, you hear Michael Wernick over and over again, basically trying to lay out the case for, you know, the prime minister who clearly, according to him, is trying to save, potentially save those jobs and do what he can to sort of figure out how that might be possible

while still maintaining that he doesn't want to do anything illegal or outside the law, basically. So it's almost a bit echo chamber-y, if I could use that term, in that if you believe something already, this will just, I think, substantiate those beliefs. Right. And unsurprisingly, those opinions are falling down political lines, too. Very much so. So you've got the Conservatives and the NDP saying this is evidence that there needs to be more investigation into all of this. We now know beyond a shadow of doubt that Justin Trudeau's fingerprints were all over this campaign.

And you've got the Liberals saying, you know, yeah, we wanted to save these jobs, and that's what you're hearing on this call. Okay, so before we get to the call itself, I want to touch on the fact that this was a secretly recorded call. Because as soon as this audio dropped, you saw a lot of people commenting on this asking, is this legal? Is this appropriate? Yeah, there's a wide variety of opinions on that. I think first of all, again, falling down certain political lines, the liberals are very critical. And I think to a certain degree, understandably so, that this was taped in secret.

Well, I just said I think it's unethical. I think it's, you know, I think it's deceptive. I think if you're going to record a conversation and it's between colleagues, I think it's the responsible, ethical thing to do to advise the person on the other phone. And she actually addresses it in her testimony, so the written submission that she puts forward 44 pages that she put forward yeah 44 pages and she does talk about she says normally when i take an important call like this i'd often have a staff member with me to take notes in this case i was alone i was anxious to ensure that i had an exact record of

what was discussed as i had reason to believe that it was likely to be an inappropriate conversation so she said she took typed out notes and she said, I took the extraordinary and otherwise inappropriate step of making an audio recording without so advising the clerk. I mean, it's a tough one because there's sort of the legal aspect of it. So in Canada, it is lawful to record somebody without letting them know. Right. So long as one person is party to the conversation. Exactly, right. So the difference is this time, like what are the rules around, for example,

submitting it publicly and making it public? And also as a lawyer, my understanding is that she's no longer a member of the BC Law Society, but she is in Ontario. There are rules in Ontario against recording somebody without knowing them if they're your client or another lawyer. It's again, though, there are more questions because in this case, for example,

is she the lawyer? This was interesting to me because it also goes to the many hats that Jody Wilson-Raybould was wearing in her role. So was she the government's lawyer in this conversation? Was she a cabinet member in this conversation? Was she a caucus member in this conversation? And depending on where you fall and what role she was playing, she may have contravened at minimum law society rules. And it's, yeah, it's interesting that you bring that up because it's actually a big part of the phone conversation because you hear her saying no, no, no so often. And then he's, and she's like, I'm the attorney general. And then Michael Warnick says, but you're also the minister of justice. And that's almost at the heart of all of this, right? The way she perceived herself and the role of the attorney general versus the way the rest of cabinet, especially Michael Warnick and the prime minister, viewed her in her function as minister of justice.

And I think that like sort of confluence of those roles plays out in that conversation and in the ramifications possibly for recording that call secretly. possibly for recording that call secretly. Let's get to the phone call itself. Hello. Hello, Michael. It's Jody. Hi, sorry about the phone tag. That's okay. I'm not calling about the phone tag. That's okay. I'm not calling you about the litigation directive.

Michael Warnick, he starts off by saying he wants to pass on where the prime minister is at when it comes to SNC-Lavalin and the deferred prosecution agreement is kind of like a plea deal for the company. And I want to get out here what it sounds like he's asking her to do at the beginning. I mean, he's essentially asking her to not be stuck in her position, to look at what else other quote unquote tools within a legitimate toolbox that she could use. And that includes everything from reexamining the case itself by herself, whether that be calling in somebody, some outside legal counsel, which we've discussed before. That came out in previous testimony. It was interesting to me as well, listening to the beginning of this discussion, where Nick is kind of ratcheting up the context around this. He says that SNC-Lavalin, the company's board, is asking for options. asking for options.

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's quite determined, quite firm. He wants to know why the DPA route, which Parliament provided for, isn't being used. And I think he's going to find a way to get it done one way or another.

So he's in that kind of mood, and I wanted to be aware of that. So what's your reaction to that? And of course, when we talk about he here, he's in that kind of mood. We're talking about the prime minister. What's your read on exactly what this is, what he is firm on getting done? I mean, very much the way this is sort of what's been conveyed in previous testimony, that he was firm on finding a solution, quote unquote, whatever that solution is, meaning finding a way to potentially within a legal realm, intervene in the decision that had been made already, not to pursue a sort of plea bargain or remediation agreement with the company.

So what was available to the Attorney General was the option of overruling the decision by the Director of Public Prosecution in that case. And this is doing that. Right. And then Jody Wilson-Raybould comes back and she insists that she's confident where she's at, that this is a constitutional issue of prosecutorial independence and that her views aren't going to change. So let's hear what she has to say. Michael, I have to say, including this conversation, previous conversations that I've had with the prime minister and many other people around it, it's entirely inappropriate. And it is political interference. And I, the Prime Minister, obviously can talk to whomever he wants. But what I am trying to do is to protect him.

This idea that she's trying to protect him, what do you make of that? Well, she goes on to explain she's talking about perception because in this case, if the attorney general decides to intervene in this prosecution to overturn essentially what the director of public prosecution had already decided, you have to make that public in what's called the Gazette. So you have to say, this is what we decided to do, and you have to provide the reasons why. And her insistence throughout the call is that everybody will sort of perceive it, much like it kind of already has been, as sort of politically motivated. And like they were, you know, trying to help SNC out or whatever it may be. So when she says protect the Prime Minister, it seems like she's saying, I'm trying to protect him from the public ramifications, the way in which this will be perceived by the Canadian public.

I would note, though, just one thing to keep in mind. You know, she's aware that she's being recorded, right? She's aware that this call is being recorded and Mr. Wernick is not. So sometimes I think it's good to kind of take a step back and listen to what she's saying. I mean, it's clearly what we had heard through the testimony, but we, you know, I think people should be aware that she knows that this call is being recorded and she can be conscious of that while he cannot.

At Franklin Templeton, we help you invest in companies that believe good enough is never far enough. Reach for better. Franklin Templeton Investments. Okay, so it does seem like to me listening to this, there's this really central issue here. She's saying that this is very black and white. this really central issue here. She's saying that this is very black and white. She's not even willing to ask the director of public prosecution's questions about why she won't pursue the deferred prosecution agreement. She's definitely not willing to intervene. And Michael Wernick is

saying that he believes the prime minister has a different view of this. He's not asking you to do anything appropriate or to interfere. He's asking you to use all of the tools that you lawfully have at your disposal. 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. Okay. Alright. I mean, that's clear. Well, I mean, he's in a very firm mood about this. Does he understand the gravity of what this potentially could mean? This is not just about saving jobs. This is about interfering with one of our fundamental institutions. This is like breaching a

constitutional principle of our fundamental institutions. This is like breaching a constitutional principle of prosecutorial independence. So we can... Oh, I don't think he sees it as that. Well, then nobody's explaining that to him, Michael. That got tense. That's probably the most tense moment in the conversation. So I think this is, it sort of exemplifies

exactly what we were talking about at the beginning, that this is two people who view the situation in a completely different context. So Jody Wilson-Raybould is saying that essentially she doesn't disagree with the decision made by the director of public prosecution, and that she views her, if she were to intervene, that would be politically motivated. And he's laser focused on the idea of jobs and the potential of losing jobs. And that is so clear in that excerpt that you just played. I think what's also interesting, though, is that she does talk about this Section 13 memo or notice, which is basically the director of public prosecution. She passes that on to the attorney general. And that explains why she decided not to pursue a remediation agreement. So Jody Wilson-Raybould is making the decision not to intervene with the full knowledge of that. The big question, though, which is sort of talked about a bit in this call, is whether or not the Prime Minister and his office, and Michael Warnock, whomever that involves, would also have that notice. So she says that she passed it on to the Prime Minister's office, but she also notes that

they claim they never had it. At the end of the call, he asks whether she can get her chief of staff to forward that on right away. And we don't know if that ever happened. I think that's important because I think that if the prime minister is saying, use every tool you can while being fully aware of the decisions that the director of public prosecutions made, that calls into question a little bit more his motivation for doing so. I think it's a little bit sketchier. But if he doesn't know it, then he is just, let's just do whatever we can on jobs. That's perhaps potentially a different situation. Many times throughout this phone call, Michael Wernick is talking about the prime minister's state of mind, that he's very firm on at least wanting to use

every tool available to him to try and save these jobs or say that he's done everything that he can to save these jobs. And Jody Wilson-Raybould says that she's just trying to give the prime minister the best advice that she can. If he doesn't accept that advice, then it's his prerogative to do what he wants. But I am trying to protect the prime minister from political interference or perceived

or otherwise. I understand that. But I mean, he doesn't have the power to do what he wants. All the tools are in your hands. So. Okay, so then, I mean, I'm having thoughts of the Saturday Night Massacre here, Michael, to be honest with you. So we've talked about this before because she brought up the Saturday Night Massacre during her testimony at the Justice Committee. And essentially she's referring to Watergate. The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The president has fired the special Watergate prosecutor, Archibald Cox. Because of the president's action, the attorney general has resigned. Elliot Richardson has quit, saying he cannot carry out Mr. Nixon's instructions.

And also in this conversation, she talks about how she's waiting for the other shoe to drop. This is a portion of the conversation that a lot of people who are on Jody Wilson-Raybould's side of the argument use to bolster the claim that something very inappropriate happened here because she essentially lost her job as justice minister and attorney general a couple of weeks later. and attorney general a couple of weeks later. Yeah, and when she says Saturday Night Massacre, she's referring to when Nixon wanted somebody fired and the attorney general wouldn't, so he tried to get somebody else to do it and he wouldn't and they resigned. And so she's making that direct correlation.

She's clearly laying things out in this call to say she thinks that if something were to happen to her job, it would be because she did not decide to do what they wanted her to do. Right. And that is clear. That was clear in her testimony. And that is clear in this call, too. We know in the call, Wernick says that he's going to have to report back before the prime minister leaves. This is around Christmas vacation. He repeats that he's in a pretty firm mind about this.

So he's worried. He's worried about the prime minister and the attorney general being at loggerheads. What do we know now about what the prime minister knew about this call? The reason that's such an important question is because we've heard the prime minister and others in the government, including Michael Wernick, say so many times, if she felt like something was wrong, if she felt like something was inappropriate, she should have said something. And the one thing that this call makes evident is that she did. She said she's uncomfortable. She said this is inappropriate. So the question of whether or not the prime minister knows is central because he insisted so often that she

never said anything. She did not come to me and I wish she had. So if he had been briefed on this call, he would have been well aware that she felt like the other shoe was going to drop. And it would have, you would have thought it would have factored into his decision making about shuffling cabinet, et cetera, et cetera. His office claims that he has not, he was never briefed on the content of that conversation. And the lawyer for Michael Wernick says that the clerk raised the issue with the Attorney General as part of his job. He then basically says that people went on vacation, so it never happened. The SNC issue never made it back to the top of the discussion list. So once again, there's going to be, I think there'll be more questions about this, though, because did Michael Wernick, for example, brief Jerry Butts and Katie Telford?

Is this an argument of semantics? Because a conversation in which the Saturday Night Massacre is invoked, it seems kind of crazy that Michael Wernick never told anyone about this. I find it highly unlikely that the clerk of the Privy Council did not brief up the Prime Minister or Gerald Butt or Katie Telford. There's no way that there was no upward passing of that information. Yeah, it would be shocking, but it would also, I guess, help us understand why in the world Justin Trudeau would have moved her out of the position of Attorney General. Like even just talking like political strategy for a second. The first thing after I heard this call, I thought is,

once you knew what she said here, why on earth would you think moving her would not create a problem? Right. Politically, right? Like forget about what's right and what's wrong and stuff. why on earth would you think moving her would not create a problem? Right. Politically, right? Like forget about what's right and what's wrong and stuff. If you're just talking strategy, it would make no sense. Just to give them the benefit of the doubt for a second,

if the prime minister didn't know about this call, there are a couple of things where it sounds like they just don't know what's going on. Like Wernick did not know about the Section 13 notice. There are people in the prime minister's office that don't seem to know that this notice exists. And, you know, you can see them kind of asking Jody Wilson-Raybould for more information. Like they want the reasons for why the director of public prosecution won't enter into a DPA, a deferred prosecution agreement. It might also explain, like you mentioned, this decision to move her, considering everything that happened before. truth of who knew what when. I get both points of view. I mean, I get the description from the opposition that it's hard to believe, but then you're right. It also would sort of help us add things up when you think about the thought process behind why on earth they would have moved her from that position. Okay. So the obvious question here is what happens now? Jerry Butt sent out a pretty

interesting tweet Sunday morning. He sure did. He said, having reviewed Ms. Wilson-Raybould's further testimony, I have tabled with the Justice Committee notes and texts between us related to the events Ms. Wilson-Raybould describes. So there is more of this to come is the bottom line. That stuff has already gone to the committee. Okay, so we might be talking to you real soon. And I understand there's also a lot of upheaval in the Liberal caucus. People are angry.

Oh my gosh, they are furious. Especially the recording of the call. I think there's already a lot of animosity right now. This has been perplexing, I think, for a lot of us watching from the outside. The idea that you can so concretely and specifically rebuke the actions of the Prime Minister, but then want to remain in the party.

There are a lot of MPs I've spoken to who are worried about their electoral future and caucus when it gets together on Wednesday. There are people who are talking about coming up with a way to kick Jody Wilson-Raybould and Jane Philpott out. We also don't know if Jody Wilson-Raybould will even want to remain, right? So I think the next few days will be very interesting to watch. Vashia, I'm just curious to get your perspective on the timing of the release of this audio. Why choose to release it and why choose to release all of this now? She said that she would be willing to come back to testify after we heard from Jerry Butts,

after we heard from Mr. Wernick. And the Liberals on the Justice Committee said, no, we've heard enough. We've heard both sides. This isn't worth continuing. So she then followed that up by saying, okay, if I'm not going to basically, and I'm paraphrasing, if I'm not going to testify in person, here is my written submission. And essentially she is using this recording to counter what we heard from Michael Wernick. Right. In the documents that she released, in the 44 pages of documents, she did talk a lot about what this is about for her, that this is about prosecutorial independence. It's not about political ambitions or caucus dynamics. That hasn't stopped people

from criticizing her for other motives. The idea that there is only one other person who can go here and that is the prime minister yeah i think her motives are most certainly being questioned there are people saying you want to take down the prime minister like to be blunt right they're saying that this is motivated by that and she's saying no it's not it's motivated by her desire to protect prosecutorial independence. She felt it was a constitutional matter. And I think that does come across in the call. But Michael Wernick also comes across and, you know, sort of vis-a-vis the prime minister as someone very concerned about losing more jobs in this country. In addition to the ones that were lost, the GM in Oshawa, in addition to the problems in the oil pageant.

And he repeatedly says that he doesn't want to do anything outside what they're legally allowed to do. Yeah, which makes this so hard for people, I think, at the end of the day to decide what's right and wrong, right? What we're looking towards now is the ethics commissioner. Right, and what's appropriate. Well, they ruled that this was inappropriate. That's kind of the only way at some middle ground that isn't just a matter of perception, I guess. Okay. Okay.

Well, it sounds like the way this is heading, we're just going to talk to you in like a couple of hours probably for the next week. But Vashi, thank you so much. My pleasure. Thanks for having me again. Okay, that's it for today. Thanks so much for sticking with us. That conversation between Jody Wilson-Raybould and Michael Wernick,

it's 17 minutes long and you can catch the entire thing. It's on our website at cbcnews.ca. We'll also tweet out a link to it at FrontBurnerCBC. See you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts. It's 2011 and the Arab Spring is raging. A lesbian activist in Syria starts a blog.

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