The Senate
Motion to Strike Special Committee on Prosecutorial Independence--Debate Continued
May 14, 2019
Honourable senators, this motion stands adjourned in the name of the Honourable Senator Housakos. I ask leave of the Senate for the item to remain adjourned in his name following my speech today.
Is leave granted, honourable senators?
Honourable senators, I rise in support of Senator Pratte’s Motion No. 474 to appoint a special committee on prosecutorial independence.
I was supposed to speak to this motion after it was moved five weeks ago, but the bells rang for a long time that day, too long, and the debate was adjourned several times after that.
I would like to thank Senator Pratte for taking the time to reflect on how the Senate might play a helpful role in the crisis confronting the government. I feel that the motion he moved achieves that objective in a pragmatic and balanced way.
As a senator and as a citizen, I was perturbed by the revelations and allegations surrounding top-level officials’ handling of the SNC-Lavalin file. I am also troubled by the fact that the Quebec engineering firm at the centre of the storm has been seriously tainted by grave accusations of fraud and corruption.
The Senate is not doing its job if it simply echoes what is happening in the House of Commons. If this motion is adopted, I believe that the work plan it proposes for the special committee will give us the opportunity to shed some light on issues that go to the very heart of our institutions, such as the relationship between the political and the judicial and the integrity of the administration of justice.
It is true that this is a difficult mandate, that the path is strewn with obstacles and that we are far from certain of the results, but what other options do we have? Should we do nothing? Should we remain silent? Should we try to find comfort by saying that the risk is too great that the opposition will use the special committee’s work? None of those options seem acceptable to me.
I believe that the political crisis that rocked the government is also a test for the new Senate, which is meant to be independent. How can we demonstrate that independence? Of course, we can do so by proposing relevant amendments to the bills that we examine. Many of those amendments are accepted. Very well. I agree with that.
However, above and beyond this methodical work that requires focus and perseverance, I think that we have a duty to shed light on the substantive issues that were raised by this controversy. We have not seen a crisis like this since we adopted the new method for appointing senators. In my opinion, by participating directly in public reflection — in admittedly riskier circumstances — and by stepping out of our legislative routine, we are shaping and affirming our independence.
The role that the Senate could play in the wake of this crisis is well defined by the terms of reference of the special committee being proposed. It is not about hearing the same players over again repeating what they said or wrote at the Justice Committee in the other place. It is also not about pre-empting the Conflict of Interest and Ethics Commissioner, Mario Dion, whose office must determine whether the Prime Minister exerted undue pressure on the Minister of Justice and Attorney General. That would be duplication.
The motion proposes instead to look at the advantages and disadvantages of having one person, a minister, an elected member of cabinet, perform both roles in our system, that of Minister of Justice and that of Attorney General.
The constitutional law experts I consulted all agree that it is an excellent idea to have the Senate consider the issue at this time. There are different schools of thought that deserve further consideration. Some believe that we should not demonize contacts between the attorney general and the government, that these contacts and the resulting exchange of information can result in better decisions.
The person who ultimately exercises the power to prosecute is more knowledgeable than a senior official, who would in some ways be constrained by his or her administrative structure. There is also a greater opportunity for accountability when a duly elected minister assumes both roles.
Several experts believe that a single elected official can continue to carry out both roles, provided that the uncertainty created by the Shawcross doctrine, whereby the sitting attorney general can be advised but not pressured by ministers, is eliminated. This doctrine is ambiguous and, according to several legal experts, it does not spell out the code of conduct to be adopted. A law and guidelines would undoubtedly provide a better framework for the role of the attorney general.
Other legal experts believe that it is high time we separated the two roles, as they do in Great Britain, to eliminate any partisanship in the administration of justice. The political crisis surrounding SNC-Lavalin appears to be the symptom of a problem with reporting structure. With things how they are, the act does not guarantee full independence for the Public Prosecution Service, since it acts on behalf of and under the authority of the auditor general, who is also the minister of justice. There is therefore too great a risk that political decisions made in cabinet could have an influence over the attorney general’s role.
Would the independence of the attorney general therefore be better assured if he or she were not the minister of justice? But would there be a loss of responsibility and accountability? To compensate for that, we would no doubt have to review the oversight mechanisms and rules for decisions made by an attorney general who is not a member of cabinet.
Clearly, there are all kinds of legitimate questions to explore. Are our institutions organized in a way that allows them to meet the contemporary challenges of transparency and impartiality required to ensure public trust in the administration of justice? Reflecting on these issues will not derail the debate. What makes this crisis so extraordinary and unprecedented is that the details of normally confidential conversations were made public.
According to the experts we consulted, it is more than likely that, in the past, political pressure of varying subtlety was placed on prosecutors without the public knowing anything about it, since those involved remained silent in the name of cabinet solidarity.
The other thing that should clearly be studied in depth is the issue of remediation agreements. There was no information campaign, no transparency, and no public debate on the objectives and eligibility criteria for these agreements before the storm broke. I think that is unfortunate.
This is a brand new legislative tool in Canada that has never been used before, even though other countries obviously use it. In my opinion, the Senate would help inform the debate if it were to look into the history of this type of agreement elsewhere in the world and if it were to determine what constitutes the national economic interest, a factor that must not be taken into account by the Director of Public Prosecutions when deciding whether to grant a remediation agreement.
We were often told that, because of that provision, job losses are not one of the criteria that must be met in order for a remediation agreement to be signed. That should certainly be clarified, because that criterion is used elsewhere in the world. What is more, the concept of national economic interest, which is part of the OECD’S 1997 Convention on Combating Bribery, seems to mean something very different.
According to Donald Johnston, a former federal minister and later Secretary General of the OECD, when the convention was signed, the primary aim was to prevent corporations charged with bribery from claiming that their exports were in the national economic interest and that bribes were necessary to protect their export markets.
Is that how our Criminal Code should be interpreted? We need to hear from experts on these matters to understand them more clearly. These remediation agreements are complex and controversial. At a minimum, the related criteria need to be more transparent.
In closing, I hope all senators, no matter their political stripe, will support Motion No. 474, which, in my view, has no partisan angle and focuses on the basic issues raised by the SNC-Lavalin affair.
The clock is ticking. We have no time to waste. Thank you for your attention.
Honourable senators, we will continue debate on this item because Senator Batters wishes to speak to it, but the matter will stand adjourned following debate in the name of Senator Housakos.
Thank you for mentioning that, Your Honour.
Honourable senators, I rise to speak against Senator Pratte’s motion to establish a special committee on prosecutorial independence, although I do commend him for turning his attention to this issue. We on the Conservative side of the Senate had begun to wonder if the members of the Independent Senators Group were interested in discussing the SNC-Lavalin scandal consuming the Trudeau government.
In the speech introducing his motion, Senator Pratte asked senators: “Where is the Senate on this issue?” In reply to him, I answered: “Where have you been?”
Every day since the Senate resumed sitting in February, Conservative senators have worked tirelessly to uncover the truth of this whole mess. Senator Pratte fears the Senate will be seen as a chamber that lacks courage and relevance. He posed the question:
When we are asked where we were while this massive crisis was unfolding, what will we say?
I can tell you, Senator Pratte, that I will have no problem answering that question. I was here holding the Trudeau government accountable and asking Senator Harder the tough questions Canadians want answered about this whole affair. My Conservative colleagues and I have stood up for the rule of law and for democracy in this country.
We have asked about this issue almost every day since the Senate resumed on February 19. We have posed 113 questions so far in Question Period, in fact. And ISG senators? They have asked three. Oddly enough, none of those questions has been from Senator Pratte. For someone so remarkably concerned about Senate inaction on this Trudeau government scandal, he seems incurious.
Instead, Senator Pratte has proposed this motion, which I find weak and which sidesteps the pertinent issues at the heart of the Trudeau government’s SNC-Lavalin scandal in favour of academic and theoretical debates. We don’t need a committee to study prosecutorial independence. The need for prosecutorial independence should be self-evident. It is one of the most basic and fundamental tenets of our justice system.
The problem in the SNC-Lavalin matter is that Prime Minister Trudeau and his closest advisers didn’t respect prosecutorial independence or the rule of law. That is the issue that a committee needs to investigate, not the history of the Shawcross doctrine or whether the roles of the Minister of Justice and Attorney General should be separated.
Separating the roles of Minister of Justice and Attorney General would have made absolutely no difference in the SNC-Lavalin scandal. The Trudeau government has peddled this idea to Canadians in a desperate attempt to distract from the real matter at hand. They even tasked a former Liberal Deputy Prime Minister and former Trudeau Foundation alumnus, Anne McLellan, to study the separation of those roles. Now, there’s a shocker.
In truth, Ms. McLellan’s make-work project will have precious little practical effect in preventing another SNC-Lavalin-type scandal in the future.
In more than 150 years of Canadian history it was not and is not Canada’s Attorneys General who have had a problem with maintaining their prosecutorial independence. It’s only Prime Minister Justin Trudeau and his top officials who can’t seem to wrap their heads around that concept. This Trudeau government has no respect for how the Attorney General’s role is separate and distinct from any other cabinet ministers. They don’t understand and they don’t care to if it gets in the way of their political ends.
The question that should be the focus of any committee studying the SNC-Lavalin affair is: Did the Prime Minister and officials within the highest echelons of his government pressure the former Attorney General on a prosecutorial decision that was hers and hers alone — yes or no? Canadians deserve answers on that matter, honourable senators.
This speaks directly to whether Canadians can trust the Trudeau government to protect and uphold democracy. If not, then Prime Minister Trudeau and his cabinet have lost the moral authority to govern. If government officials can play fast and loose with the principle of prosecutorial independence in the SNC-Lavalin affair, what is to stop a Prime Minister from picking up the phone to order the criminal prosecution of his or her political enemies? It is a slippery slope and one that should trouble all Canadians.
Senator Pratte says that all of the facts of this matter are now in the open. This could not be further from the truth. Jody Wilson-Raybould named 11 individuals she alleged had been involved in pressuring her regarding the SNC-Lavalin matter. Only three of those individuals testified at the House of Commons Justice Committee before the Liberal majority hastily shut that committee study down.
Senator Pratte was a journalist for a long time. If he was writing an exposé and was aware of 11 potential first-hand sources or witnesses, would he only interview three? A number of honourable senators here have served as police officers before their appointments to this chamber. I ask them: Would you have conducted an investigation by speaking to only three out of 11 witnesses or persons of interest? Of course not. By any measure that would be an inadequate investigation. You would be failing to fulfil your duty, and that is what the Trudeau government has done here.
There are many issues with Senator Pratte’s motion. For one, the motion doesn’t even mention the former Attorney General Jody Wilson-Raybould or SNC-Lavalin, the corporation that is central to this entire sordid affair. In fact, the motion is pretty much silent on all facts at the centre of the SNC-Lavalin scandal. I find it rather alarming that from the outset Senator Pratte declares that the committee he is proposing to look into this matter, “ . . . should not be tasked with investigating what happened.” That is precisely the problem. I recognize that the Liberal government would just as soon avoid any sort of investigation. However, I do find it regrettable that Senator Pratte’s motion would enable them to do just that.
Prime Minister Trudeau has already used the force of his majority to shut down the House of Commons Justice Committee inquiry without the committee even attempting to put a report together. Major witnesses, including Jody Wilson-Raybould, Gerry Butts and Michael Wernick, submitted written material to the committee which has not been tested because the Trudeau government shut the committee down prematurely. They have also prevented the Ethics Committee from taking up the matter. Just when Senator Smith’s motion to send the SNC-Lavalin affair to be studied by the Senate Legal Affairs Committee began to pick up traction, Prime Minister Trudeau’s government Senate leader tried to unilaterally gut the motion to render it useless.
Senator Plett introduced another motion to call Jody Wilson-Raybould and others before the Senate Legal Committee, and guess what? Now Senator Pratte thinks we should create a whole new committee but wants to ensure that it not be tasked with finding out what happened. Curious. Senator Pratte says he’s concerned that by supporting a Conservative motion he would be playing the opposition game. In fact, Senator Pratte’s motion is nothing but an attempt to help the Trudeau government continue to play hide-and-seek. Canadians deserve better than this, particularly when the rule of law is at stake.
Honourable senators, Senator Pratte knows full well that his motion will shield the Trudeau government from accountability. That is the purpose. You know it and I know it. He wants to study every aspect of the issue except for the facts because the facts are damning and inescapable. Contrary to Prime Minister Trudeau’s assertions, people don’t experience truth “differently.” There is only truth.
The Prime Minister has spun so many different versions of what he calls the truth, he can’t keep his stories straight anymore. On February 15, he told Canadians he was not aware that his former Attorney General felt any undue pressure because she had never brought it to his attention, but in April in the House of Commons, under questioning from my Conservative MP colleague Pierre Poilievre, Prime Minister Trudeau admitted that Jody Wilson-Raybould had asked him last September if he was trying to interfere in her decision regarding SNC-Lavalin’s prosecution. Prime Minister Trudeau was well aware of where Jody Wilson-Raybould stood on the matter. He didn’t want to take her “no” for an answer.
Senator Pratte’s motion proposes to create a whole new committee with membership constituted according to a whole new formula other than the one on which our committees are currently comprised. I don’t think that’s advisable in setting precedent for the rules of this place, nor do I think it’s necessary. Senator Pratte proposes a new committee of six ISG members, three Conservative members and one Liberal. The Legal Committee that Senator Pratte seems to want to avoid is made up of six ISG members; four Conservative members; one Liberal member, the chair; and currently one non-affiliated senator, Senator Jaffer. He doesn’t give much justification for that, so it appears that the aim is to ensure there is one less Conservative senator involved in this investigation.
The Independent Senators Group already holds the majority of seats on the Legal Committee. Why do we need a whole new committee with one less Conservative member to deal with the study of that particular matter? Is this the tyranny of the majority at work? One of the Senate’s roles is supposed to be the representation of minority interests in the legislative process, and that should include the representation of minority viewpoints as well.
Also, whether Senator Pratte likes it or not, Conservative senators do hold the role of official opposition in the Senate. While I know many on the government and ISG benches would like to obliterate opposition in this place and turn the Senate Chamber into an echo chamber reflecting only that one viewpoint, that is not how our system is structured and it’s certainly not what is best for our democracy.
This motion is yet another attempt by the government to silence the opposition. The Trudeau government loves to crack down on dissent. We have seen the Prime Minister attempting to silence Jody Wilson-Raybould by leaving a partial confidentiality requirement in place and by him kicking both Jody Wilson-Raybould and Jane Philpott out of caucus. But covering up potential political interference in a criminal prosecution is wrong. Canadians deserve answers, honourable senators.
My colleague Senator Don Plett has proposed a motion suggesting that the Standing Senate Committee on Legal and Constitutional Affairs is the proper venue to try to get to the bottom of this scandal. I share that view. For one thing, most of the senators on the Senate Legal Committee have legal backgrounds. We don’t need to spend time learning about the concept of prosecutorial independence. Everyone sitting around that committee table should have a firm grounding in that.
Our chair, esteemed constitutional lawyer, scholar and experienced parliamentarian Senator Serge Joyal, doesn’t need a primer in the Shawcross Doctrine. He has, however, indicated publicly his support for the Legal Committee to get to the bottom of this SNC-Lavalin scandal. Many of us who are lawyers on the Legal Committee have experience conducting courtroom examinations of witnesses, and we can effectively expose the relevant facts in this case.
Senator Pratte suggested it might be an advantage for a Senate committee to study deferred prosecution agreements, or DPAs. Of course, our Senate Legal Committee, of which Senator Pratte is a member, already studied the deferred prosecution agreement provisions contained in Bill C-74, the Trudeau government’s previous Budget Implementation Act. We didn’t have nearly as much time as we would have liked to study those provisions, given that Senator Harder was pushing hard for us to return the bill to the Senate floor after only two meetings.
Our committee made the observation — unanimously I might add — that such a major Criminal Code change should not have been rolled into omnibus budget legislation. We also made another unanimous observation that then Justice Minister Jody Wilson-Raybould did not appear before our committee to defend this major Criminal Code change despite it being the usual practice. We had issued repeated invitations for her to do so.
Given all that has transpired around this matter since, it does beg the question whether the Trudeau government’s pressure to ensure the DPA provisions passed quickly was precisely in order for them to avoid scrutiny. Minister Wilson-Raybould’s reluctance to appear on DPAs before our committee also raises the question of whether she was already facing undue pressure on the SNC file at that point.
Senator Pratte is concerned that the Legal Committee will be too busy to handle an inquiry of this nature. Our committee is accustomed to handling a busy legislative agenda, even though the Trudeau government has not introduced that much justice legislation in comparison with the previous Conservative government.
Where there is a will for the existing Legal Committee to study the SNC-Lavalin scandal, there would be a way. We do not need to strike a whole new committee. The senators on the Legal Committee have the expertise to handle such a study and, as I mentioned, we have a unique interest in the issue of DPAs and the former Attorney General’s role in that matter based on our previous work.
Significant and very serious questions about this affair remain unresolved, and Senator Pratte’s proposed committee is doomed to fail in addressing them.
That is why I would encourage you to join me in opposing Senator Pratte’s motion. I ask you instead to support Senator Plett’s motion and bring this matter before the Standing Senate Committee on Legal and Constitutional Affairs. Thank you.
Would Senator Batters take a question?
Yes.
I felt compelled to stand up and ask you a question in response to your wholesale, unrelenting attack against Senator Pratte, who isn’t here today, unfortunately. As you know, I am in favour of this motion. I don’t think it’s right for you to keep using the same rationale to oppose independent senators’ arguments. You can say we do the government’s bidding and parrot its every word, but that has nothing at all to do with Senator Pratte’s motion, in my opinion.
The committee he proposes is a special committee because there’s not enough time as the session winds down to have the Standing Senate Committee on Legal and Constitutional Affairs discuss these issues. The reason he doesn’t want to select the witnesses is that he wants the committee to have the freedom to choose its witnesses. I highly doubt this proposed committee would only talk to Jody Wilson-Raybould, considering she herself stated that she has nothing more to add on the subject. Perhaps there is more to be gleaned, but it seems unlikely that anyone can make her keep talking if she doesn’t want to.
Senator Batters, I’m not sure why you are being so insistent on this and why you don’t simply stick to the facts instead of ascribing motives to Senator Pratte and me, when we are trying to propose a serious study of substantive issues, since the Senate must play a complementary role and avoid duplicating the work of the House of Commons or even the investigation of the Office of the Ethics Commissioner into this matter.
I’m sorry, Senator Batters, but your time has expired. Are you asking for time to answer questions for five more minutes?
I would need one minute to answer that question.
Is leave granted, honourable senators?
Thank you, senator. First, I thought my speech did a fair bit to address those particular items. This is Senator Pratte’s amendment. I directly addressed what his particular amendment provides.
I indicated that for this particular matter, the Senate Legal Committee is already well equipped. In fact, we have already had a unique interest in both the study of the DPAs and in the particular former Attorney General’s role in this very issue. I addressed the fact that time is short, and Senator Plett’s motion not only indicates that Jody Wilson-Raybould would be a witness but others as to be determined by the particular committee. It already addresses those things.
I believe that Senator Pratte’s amendment motion is very similar to the one that the Liberals tried to bring forward in the House of Commons, which dealt not at all with the subject of SNC-Lavalin but instead with theoretical and academic studies. Canadians want answers on SNC-Lavalin. Too many avenues have been shut down by the Liberal government, and we need to make sure they get those answers. Thank you.
If I could say a few words, on debate.
On debate. I remind honourable senators that the matter will still remain adjourned in the name of Senator Housakos.
I want to say a few words agreeing with Senator Miville-Dechêne, which may be a surprise to many, but indeed we have very limited time and something needs to be done in a hurry. Of course, my motion was introduced some time ago, and all we’ve had on the other side are attempts to delay this and they now say we are limited for time. If my motion would have been accepted some weeks ago, this would have been thoroughly studied.
In light of what Senator Miville-Dechêne said, I want to agree with her that we need to move this along. In the spirit of moving this along, I have an amendment that I would like to propose.
