Jody Wilson-Raybould submitted a recorded conversation of the phone call with former Clerk of the Privy Council Michael Wernick in a 44-page document on the SNC-Lavalin affair that was released to the public Friday afternoon.
Wilson-Raybould has asserted that Wernick, who is the country’s top civil servant, made “veiled threats” against her on the SNC-Lavalin affair, but Wernick denied making threats to her during his second appearance at the justice committee earlier this month.
Wernick came under fire from opposition parties who said he is overly partisan and have called on him to resign.
He then announced last week that he will retire early and leave the post by April 19.
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Wilson-Raybould resigned from Trudeau’s cabinet on Feb. 12 after being shuffled out of the justice portfolio the previous month and into the role of minister of veterans affairs.
In the December 2018 phone call, Wilson-Raybould warns Wernick repeatedly about the perception of political interference if she overrode the federal prosecutor to offer SNC-Lavalin a deal to avoid a criminal trial.
It corroborates virtually all details of Wilson-Raybould’s four-hour testimony on the SNC-Lavalin affair on Feb. 27, 2019.
Here’s the transcript of the nearly 18-minute conversation between Wernick and Wilson-Raybould.
Clerk (Michael Wernick): Hello.
JWR (Jody Wilson-Raybould): Hello Michael, it is Jody.
C: Hi, sorry about the phone tag.
JWR: That’s OK.
C: Um…l am not calling you about litigation directive. I am calling about the other important one — the deferred prosecution thing/SNC and so on — I wanted to pass on where the PM is at… so our intelligence from various sources is that company is getting to serious point now… the board has asked consulting firms for options for the board for their next, which could be selling out to somebody else, moving…you know, various things.
JWR: Yep.
C: So it seems to be real and not a bluff. Um, there is another rising anxiety, as you can imagine, about a signature firm and job loss and all that coming after the Oshawa thing and what is going on in Calgary and what not. So the PM wants to be able to say that he has tried everything he can within 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.
JWR: OK
C: So, um, I don’t know if he is going to call you directly — he might — um and he is willing — I think he is thinking about getting somebody else to give him some advice…you know he does not want to do anything outside the box of what is legal or proper — um…but his understanding is, you know, the DPA tool is there and you have options that we talked about before to ask for reason from the OPP or even take over the prosecution. He just wants to understand more at this point of why the DPA route is not taken up on this route. So he is thinking on bringing someone in like Bev McLachlin to give him advice on this or to give you advice on this if you want to feel more uncomfortable you are not doing anything inappropriate or outside the frame of…
JWR: I am 100 per cent confident that I am doing nothing inappropriate.
C: Yeah, no, but would not be if you decided to use some of these tools under the law…cause I think he feels that the government has to have done everything that I can before we lose 9,000 jobs…and a signature Canadian firm.
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JWR: 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. And l…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 Beverly McLachlin…l can call her right now…um… l 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. So I am actually uncomfortable having this conversation but I am happy to talk to you. I will call Beverly McLachlin…l cannot even imagine her feeling in any way, shape or form comfortable interfering with the independent prosecutor.
C: OK, but I think that is where people are talking past each other. I mean I think the view that he has formed — I share — I am not the lawyer in any of these conversations, and Elder and others is, um, it is not interference. The statute specifically has these other provisions in it that allow you to ask questions of the OPP and that is provided for and that is not interference …
JWR: But I would have to issue a directive, I would have to Gazette this…
C: Yes.
JWR: The prosecutor — the director — whom I know and understand after having several conversations with her about another directive on HIV that I issued — she is a by-the-book person. If this is Gazetted — this will be — and I hear you on the jobs and wanting to save jobs — I mean we all want to do that — this goes far beyond saving jobs — this is about the integrity of the prime minister and interference — there is no way that anybody would interpret this other than interference — if I was to step in. It does not matter how I would look in doing that — I would be a mockery — and that is not the problem — the bigger problem is what it would look like down the road for the government. It is not about jobs — and I know that jobs are important so I do not want anybody to misinterpret that I don’t care about those jobs — this is about the integrity of the government and recognizing that there is the ability to issue a directive under the act…um…it is still irrespective of the ability that I have to do that — 1., it has never been done before, but 2., this is going to look like nothing but political interference by the prime minister, by you, by everybody else that has been involved in this politically pressuring me to do this.
C: Well…um…
JWR: I actually really feel uncomfortable having this conversation because it is wrong and I hear the prime minister obviously can call me…like I said to you I will have a conversation…I am going to call Beverly McLachlin and have a conversation with her about his.
C: Well…of course it has not been done before because Parliament only created the instrument barely a year ago…
JWR: No, no, no…this instrument was… you mean the directive — the directive on a specific prosecution has never occurred… And this happened… cause Harper brought this law in as you probably know 10 years ago. The directive — or the DPA has never been it just entered the Criminal Code back in September so I understand that this is the first case. The prosecutor sent me what is called a Section 13 — you told me that you hadn’t seen it before — but I read it and I have reread it – and the Prime Minister’s Office has a copy of it. She explains in it why she is not doing it in this case – we have to, I have to be – unless it is something outrageous – comfortable with the decision – recognizing it is the first one likely and obviously I am confident wasn’t entered into lightly – made the decision not to enter into a DPA with respect to this case. And she explained why.
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C: So when did she convey that to you?
JWR: She issued the Section 13 back in September when I was down in Australia for that…five eyes – and then all this transpired …I mean I have a timeline of every single conversation and everything that everybody has said to me on this so…um… So like…anyway…again – I am surprised that you and I are having this conversation but I am just saying that I really feel uncomfortable about the appropriateness of this conversation.
C: OK, I understand that – but I mean I think his view is that his is 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…um.
JWR: I know I have a tool under the prosecution act that I can use. I do not believe it is appropriate to use tool in this case.
C: OK, alright … that is clear – um – well, he is in a very firm mood about this so um….
JWR: 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.
C: Well I don’t think he sees it as that…
JWR: 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…l just…l don’t know…
C: OK, then I am – I respect where you are coming from – …I just think…
JWR: You know what – I hope that you do because I do not think anybody respects this… The conversation that Gerry and Katie had with my Chief of Staff and I have it – like she wrote down what was said – saying that they do not want to hear anymore about the legalities – but want to talk about jobs is entirely inappropriate.
C: OK, well I was not
JWR: OK, I have it …l have it all.
C: OK, but you are not just the attorney general, you are the minister of justice in a cabinet and … context in which you exercise your roles and responsibilities … I am not seeing anything inappropriate here but …um… I mean … you are right … and the PM … people are talking past each other…l think the way he sees it and the advice he is getting is that you still have things you can do that are not interference and are still very much lawful…
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JWR: It is not that they are not lawful … the perception and what will happen is that it will be deemed political interference from day one when people were talking about why we are entering into a DPA or putting in a DPA regime in place … Everybody knows that it was because of SNC whether that is true or not that is what people will think.
C: It is a tool used in lots of other countries though…
JWR: Fair
C: …for these kinds of purposes and especially if there has been a change of ownership or management of the company that is being prosecuted … it is a public policy tool.
JWR: Fair, but in our MCs all the way up and in the law that we changed we gave the Director of Public Prosecutions the discretion to enter into the DPAs and the judge to oversee the regime. There is no guarantee in any particular case – this one or the ones that will come – that they will enter into the DPAs or think it is appropriate to do so. And that is what we consciously made the decision on when we decided as a cabinet to enter into this process and I amending the law.
C: Is there anybody that can talk to Kathleen then about the context around this or to get her to explain why she is … or I guess the company has talked to her directly …
JWR: The company has… but Michael there was a preliminary inquiry – I am still trying to get an update on what happened at the Pl. Like the suggestion that I made ages ago which Gerry talked to you about in Montreal was … nobody from the company ever contacted me or sent me a letter expressing concern – had that happened I would have done what I believed to have been appropriate was to forward that
letter on to the DPP.
C: I think they have made direct representations to the prosecutor though … and they tried to make the public interest argument and so on and so on. But they gave the impression that they are not being listened to so…
JWR: ya…
C: 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… l am a bit worried…
JWR: Bit worried about what?
C: Well…it is not a good idea for the prime minister and his attorney general to be at loggerheads.
JWR: 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.
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C: Alright, I understand that … but he does not have the power to do what he wants … all the tools are in your hands so…
JWR: … OK, so then…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.
C: OK…alright but…l am worried about a collision then because he is pretty firm about this…l just saw him a few hours ago and this is really important to him… OK…um…there is not much more we can cover for now them…um … I understand where you are coming from … Um…The section 13 response from Kathleen …you are saying Elder has that or had a version of that?
JWR: The Prime Minister’s Office has had it since September since I have had it.
C: Since September…OK, that is important. That is new to me so … OK. Alright…um …
JWR: They will tell you that they have not received a copy of it… Elder and Mathieu said it to me when they came to my office…um…but we have documented evidence in terms of emails etcetera where that has been provided…so they do have it…maybe they have misplaced it. I can send it back over to them but I know that Jessica asked the other day when she was over at the PMO office…
C: And what did they tell her…that they didn’t have it or that they never seen it…?
JWR: I have to ask and I will tell you exactly what they said. I will have to ask her.
C: My advice is that Jessica should send it to Elder then just to make it “tripley” sure they have it.
JWR: OK, I will get her to do that right now.
C: Alright thanks for calling me.
JWR: Thanks.
C: Thanks for calling back so quickly.
JWR: No problem.
C: OK, he is still around tomorrow so ….(inaudible)
JWR: I am waiting for big…the other shoe to drop…so I am not under any illusion how the prime minister has and gets things that he wants…l am just stuck doing the best job that I can…
C: OK, alright.
JWR: OK.
— With files from Amanda Connelly
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