By DANIEL LEBLANC, ROBERT FIFE
Friday, September 13, 2019
OTTAWA -- Legal and political experts are rejecting Justin Trudeau's statement that it is up to Canada's top bureaucrat to decide whether to lift the veil of cabinet secrecy over the SNC-Lavalin affair, saying that waiving confidentiality is a political decision in the hands of the prime minister.
Retired judge John Gomery, who led a public inquiry into the federal sponsorship program in 2004 and 2005, said he was initially rebuffed by senior bureaucrats when he asked for access to cabinet minutes related to the national-unity initiative, which was marred by fraud and corruption. The Liberal prime minister of the day, Paul Martin, eventually overrode the senior bureaucrats and agreed to provide access to all available information.
"It is a political decision," Mr. Gomery said in an interview. "Their usual rules are there is no disclosure of what goes on in cabinet. Like every rule, there are exceptions. I had one of them, and we'll find out if there will be another one in the SNC-Lavalin case."
A report by Ethics Commissioner Mario Dion said the Prime Minister violated the Conflict of Interest Act when he and senior officials improperly pressed Jody WilsonRaybould when she was attorney-general to order the Public Prosecution Service to settle fraud and bribery charges against SNC-Lavalin Group Inc., the Montrealbased engineering and construction giant.
Ms. Wilson-Raybould met with RCMP investigators this week to discuss political interference in the criminal prosecution of SNC-Lavalin, and is calling on the Trudeau government to waive cabinet confidentiality for her and all other witnesses to allow a thorough probe into possible obstruction of justice.
Mr. Trudeau and other federal officials have said Privy Council Clerk Ian Shugart, who reports to Mr. Trudeau, decided to offer only a limited waiver to the Ethics Commissioner and the RCMP for their inquiries into the SNC-Lavalin matter.
Governance expert and University of Moncton professor Donald Savoie said the Privy Council Clerk is the custodian of cabinet secrets, a tradition that was established in 1957. He said this role would prevent Mr.
Shugart from unilaterally waiving confidentiality over discussions on the prosecution of the Montreal-based firm.
"The Clerk has no choice but to play by the rules as the custodian, but cabinet can decide to release whatever it wants to release. More to the point, the Prime Minister runs cabinet and he can quite easily say, 'I am going to release people from cabinet confidence,' " Prof. Savoie told The Globe and Mail.
Mel Cappe, who was clerk of the Privy Council Office from 1999 to 2002, said every clerk will advise every prime minister against waiving privilege. "The purpose of the confidence is because the oath of office of every minister says that they will speak their mind in cabinet," he said in an e-mail.
"The quality of cabinet decision-making depends on candour."
Mr. Cappe said Mr. Trudeau made a "bad decision" earlier this year by lifting some constraints for Ms. Wilson-Raybould to testify before the justice committee. Being selective on what to waive "will always look political."
Yan Campagnolo, a professor of common law at the University of Ottawa, said that except in matters before the courts, the decision to release cabinet secrets is made at the political level through an order in council adopted by cabinet ministers.
"Outside the context of litigation, the only individual with the political authority to authorize the disclosure of cabinet confidences is the prime minister," he said.
Former Saskatchewan premier Brad Wall said cabinet confidentiality should be respected in most instances, but not when the RCMP are knocking at the door. When he was premier, the RCMP and the province's auditor-general requested cabinet documents involving a government project called the Global Transportation Hub.
"In order for them to receive access to these documents, I had to waive cabinet confidentiality, which I did because it was the right thing to do," he said in an e-mail.
Justice Department spokesman Ian McLeod said this week that the decision to offer only a limited waiver to Mr. Dion and the RCMP "was made solely by the Clerk of the Privy Council as guardian of cabinet confidences."
On Wednesday, Mr. Trudeau said: "We respect the decision made by the Clerk."
Mr. Dion has said cabinet confidentiality prevented nine witnesses from giving full testimony for his investigation this year.
The Trudeau government lifted cabinet confidentiality for Ms. Wilson-Raybould, and those who had direct communications with her, for the duration of her time as attorney-general so she could testify before the House of Commons Justice committee.
Her testimony is covered by parliamentary immunity and cannot be used by the RCMP. The waiver does not apply to other individuals or the time after Ms. WilsonRaybould was shuffled to Veterans Affairs on Jan. 14.
"The Prime Minister is the only person with the authority to broaden the scope of that order in council if it is deemed too narrow," Mr. Campagnolo said.
At a news conference in Victoria on Thursday, Mr. Trudeau rejected calls from Ms. Wilson-Raybould and former Liberal cabinet minister Jane Philpott for a broader waiver to the RCMP.
"We actually took an unprecedented step in giving out a waiver that allows for all issues relating to this matter to be discussed at committee, to be investigated, to be followed up on," Mr. Trudeau said. "We know that it was important for people to be able to examine what happened in this matter and that is why we took that step."
In early September, 2018, Ms. WilsonRaybould was informed that the Director of Public Prosecutions, Kathleen Roussel, had decided not to invite SNC-Lavalin to negotiate a deferred prosecution agreement as a way to avoid a criminal trial.
Asked why he tried to overturn Ms.
Roussel's decision but abides by Mr. Shugart's decision, the Liberal Leader said: "The job of a prime minister is always to stand up for the public interest, to stand up for people's jobs. That is what I did and what I will always do."
NDP Leader Jagmeet Singh has challenged Mr. Trudeau to let Ms. Wilson-Raybould and everyone else with relevant information speak freely with the RCMP.
"Canadians deserve answers, but Justin Trudeau is still putting himself and his corporate friends first," Mr. Singh said in a statement. "It's time for Justin Trudeau to let Jody Wilson-Raybould tell her whole story."
Mr. Gomery said his request for access to cabinet documents "was dismissed contemptuously" when he was discussing his terms of reference with bureaucrats in 2004.
"I said I want to be sure that I have access to the minutes of the cabinet meetings. The deputy minister of justice said that is out of the question, that is simply never done," Mr. Gomery said. He added that the eventual lifting of cabinet confidentiality for his inquiry was key to getting to the bottom of the sponsorship scandal.
"This frankly was one of the reasons our inquiry was successful, because we were able to get into the cabinet confidences issue and actually got the minutes of cabinet meetings that were extremely revealing," Mr. Gomery said.
With a report from Kathryn Blaze Baum