The Justice Committee's grilled Privy Council Clerk Michael Wernick for almost two hours today. NDP and Conservative members took turns exposing lie after lie. If exactly one person were to go to prison over this scandal, there would be no surprise if it were him. In contrast to Deputy Minister of Justice Nathalie Drouin, he came across as emotional, defensive, not a meticulous note-taker, having a selective memory, and still incredibly hyper-partisan.
Judge the following exchanges for yourself between Wernick and Lisa Raitt, Charlie Angus, Murray Rankin, and Pierre Poilievre. None of them held back in making sure that the Clerk knew exactly how the vast majority of Canadians are feeling.
"Hm, glad you understand the question now"
Lisa Raitt (CPC, ON): Mr. Clerk, why did Mr. Butts say this morning that he was able to get access to his own emails within days of his needing to come to this committee, but Mark Norman has had to go to court to get access to his own emails?
Editor's Note: Vice-Admiral Mark Norman is currently involved in another criminal proceeding where there are serious allegations of political interference.
Wernick: I'm not sure I even understand the premise of the question. [This statement is later shown to be a lie.]
Raitt: Okay, then let's try this one. Mr. Wernick, you have given incredibly conflicted testimony and I'm gonna take you through some of it. The crux of the issue according to Mr. Butts this morning, was what and when did the former attorney general tell the prime minister himself or you that she had made up her mind and that she was not gonna change it. Now, I asked you that question when you were here last. You didn't give an answer specifically, but we ended up settling on September 17. Would you now say your testimony as you found out from the former attorney general that she had made up her mind on this issue by September 17?
Wernick: I accept that on September 17 in her mind she had made a final decision. In law, the decision was never final because she could always take into consideration public interest considerations and was able to take into account new information.
Raitt: Mr. Wernick, you have provided for us your contact with SNC-Lavalin and I find it very helpful and I thank you but I'm troubled by one thing. You went to great lengths in telling us in your last testimony about how you had only a few meetings with them and indeed that you had several email requests for a meeting on September 18 and you took it and you registered it. And then you talked about running into SNC executives at the gala and you left right away. Indeed, the clerk contact indicates that there were further requests for more meetings. Until October 15, and you took a call from the former Clerk of the Privy Council, Kevin Lynch [who is now the chairman of the board of directors for SNC-Lavalin].
Wernick: I believe that's the 18th [of October].
Raitt: I have October 15 here. Here's my concern. You rejected everybody else in terms of speaking about SNC-Lavalin but you took the meeting from the former Clerk of the Privy Council, and my concern is this. Section 33 of the Conflict of Interest Codes sets out exactly what a previous office holder can and cannot do, and it says that no former public office holder shall in such a manner as to take improper advantage of his or her previous public office. Now you told us with great glee that you walked out of an important dinner that you wanted to go to because you didn't wanna be seen with them, and yet you took a call from a former clerk. Do you have concerns that the former clerk breached his duties and obligations to Canada?
Raitt: You don't think that you took the call from Kevin Lynch because he was the former Clerk of the Privy Council?
Raitt: Why did you take the call from Mr. Lynch?
Wernick: Mr. Lynch was the chair of the board, I knew this was an active issue in October, I took the meeting with the company. They are not a pariah, it was not improper to have communications with the company. The conversation was a telephone conversation, not a meeting, and it lasted 10 minutes. Mr. Lynch, as the chair of the board, expressed his frustration that he did not understand why a DPA was not being considered, and he knew that the board [...] was going to have to take some tough decisions in October and November. My recollection of the conversation is he asked "isn't there anything that can be done" and I told him in the firmest, curtest possible terms "no", he would have to go through the attorney general and the DPP, through his counsel.
Raitt: Wow. So not more than 2 weeks ago, when you gave your first testimony about having no contact with SNC, you said nothing about this phone call, and yet, today you have... (Wernick interrupts)
Wernick: I was cut off if you recall, Ms. Raitt, I was proceeding to read the chronology and I was cut off with it incomplete, and undertook to provide the chronology to the committee, which I have done.
Raitt: Well thank you for cutting me off, Clerk, but as I was going to say, I think it's incredibly pertinent, and you must have had knowledge of it because you gave us almost a verbatim right now about what the content of that telephone call was. Can you not see how disturbing this could be for Canadians to see that former clerks who are now chairs of boards at SNC-Lavalin have easy access and immediate access into the central office of this government? Into your office? When you turned down everybody else and walked out of a gala because you "didn't wanna see SNC anymore"? Do you not see that as a problem for this country?
Raitt: The handwritten notes of your COO deputy secretary to the cabinet. Midway down, it says [...] "Initial indication with respect to..." I can't make out what the rest of it is, I'm wondering if you can help us.
Wernick: So what the notes allow us to confirm is that on September 18 in the afternoon, the company had not been informed by the DPP that a DPA was going to be declined.
Raitt: Okay. Interesting enough, that is not what the legal officer to the DPP said in her letter to SNC-Lavalin. You also provided for us the clerk contact with SNC, is this everything? In the context now? You're content that it's the entirety of your interactions with SNC-Lavalin?
Wernick: It's everything that I'm aware of. When the ethics commissioner began a process, which is some time ago, there was an immediate request for all documents and records remotely related to SNC-Lavalin to be secured, and they were secured and they were sequestered, and that is probably, now that I think about it, why Mr. Butts's email traffic was secured and sequestered.
Raitt: Hm, glad you understand the question now [as opposed to in an earlier exchange, when Lisa Raitt asked about Vice-Admiral Mark Norman's emails]. So, in your testimony previous, I asked you if you were informed of the September 4 decision by the Director of Public Prosecutions, you said no, and then by midway through your testimony, you indicated "I think she advised the prime minister of her view that a deferred prosecution agreement was not a good course and she had no intention of intervening," and indeed, she has never intervened. So as I said before, we're on safe ground to say that you and the prime minister both knew on September 17 that she had made her final decision and had no intention of intervening.
Wernick: And as a matter of law, the decision is never final [repeats the same speech as from a prior answer].
Raitt: I appreciate that. Are you a lawyer, Mr. Wernick?
Wernick: No, I am not.
Raitt: Okay, who wrote that for you?
Wernick: I have retained personal counsel because of Mr. Scheer's letter to the RCMP.
Raitt: Right, so you're telling me that your lawyer wrote that for you.
Wernick: My lawyer advised me on the boundaries of my testimony this afternoon.
Raitt: But what you just read is interesting to me about making the assertion that everything is okay. I'm wondering who wrote that for you because it sounds an awful like some other comments that were mentioned by Mr. Butts this morning and some people who appear on panels on television.
Wernick: What are you insinuating?
Raitt: I'm not insinuating anything, I'm saying flat out...
Wernick: You are insinuating, what are you insinuating?
Raitt: I'm asking you who wrote that for you, Mr. Wernick.
Wernick: I wrote it on my computer after conversations with my counsel.
Raitt: Okay! So that wasn't so hard to say. I'm wondering if I can read to you, Mr. Wernick, what Jody Wilson-Raybould said in her testimony, she said, "the Clerk of the Privy Council would have known the September 17 meeting because I specifically mentioned to him and the prime minister going into detail about the section 13 notice that I had received and that, again, I was very clear that I had already made my decision around the DPA and not intervening." There's no reason not to take that as a fact, is there?
Wernick: As I testified last time, 90% of the conversation at that meeting and the reasons for my presence was to discuss the indigenous agenda.
Raitt: I didn't ask about that, I asked you whether or not that's a fact in your mind now. Is that an agreed fact between you and I? [...] or do you not remember it now?
Wernick: I do not believe that was in detail or lengthy. She made her position clear, as she testified, that in her mind, she had made a final decision.
"You told us you don't remember, and you weren't 'wearing a wire'!"
Charlie Angus (NDP, ON): Mr. Wernick, I'm looking at your statement and I find it pretty thin-ruled given the fact that five former attorney generals have asked for an RCMP investigation. Former Liberal attorney general, Michael Bryant, said he's never seen such "brazen and reckless interference" in an independent prosecution. We've had two cabinet ministers resign, Ms. Philpott saying she had constitutional and ethical obligations in the face of political interference. You were one of the key political actors in this, Mr. Wernick, and yet I find there's missing from here any attempt to explain what happened in that key meeting of December 19. Where we asked Ms. Wilson-Raybould on-record if you threatened her. And she said she wasn't threatened once, but she was threatened three times by you. And then she said that you wanted to find a way to talk directly to the prosecutor, which would be the direct interference in the prosecution's case. And she warned you that you were on dangerous ground. How come you haven't even tried to rebut her testimony?
Wernick: I haven't been asked the question, Mr. Angus, I do not have independent recollection of what I said, I did not record the conversation, I did not wear a wire, I did not take contemporaneous notes, and that is not my recollection of the way the conversation flowed.
Angus: Can I put this to you Mr. Wernick? You're asked about threatening the attorney general, you're asked about treading on dangerous ground, and you tell our committee "well I wasn't wearing a wire, sorry I don't remember"? Mr. Wernick, that is not a credible answer. You are to be the Clerk of the Privy Council. If you come to a meeting and you can't remember threatening the attorney general and tell us "well I'm sorry I wasn't wearing a wire"? I suggest, Mr. Wernick, that the "brazen and reckless interference" referred to by five former attorneys general refers directly to you, and if you cannot answer that question, you have no business being in that job.
Wernick: So, I have said at this committee before, and I will say again, I did not threaten the attorney general in any way.
Angus: But you don't remember! You told us you don't remember, and you weren't wearing a wire!
Wernick: I have never raised partisan considerations [repeats same speech for the third time] I did not suggest any consequences for her. I made no threats to the former attorney general. Period.
Angus: Oh, so now you remember! But I will just end on this. She said that she expected the Saturday Night Massacre, which is a reference to Richard Nixon and the firing of the special prosecutor, and lo and behold, she was replaced two weeks later. So I think Ms. Wilson-Raybould's testimony is very credible and I'm very sad that you get a second kick at the can and she's not being given a chance to rebut what you're saying today.
"You're telling Canadians that you don't remember saying any of the key things that the former attorney general testified to"
Murray Rankin (NDP, BC): Today you said that you never give partisan advice, you don't engage in partisan activity, you're not part of someone's partisan agenda, and you're not motivated by burnishing politicians' image. However, when you appeared before us last time, you did the following. You started by talking about an assassination; you talked about fear of your country which Professor Wes Wark characterized as "the politics of fear"; and then you talked about extemporaneous praise for Minister Carolyn Bennet; finally, today you brought in a number of social media comments, with great respect, that have nothing to do with what's before us. [...] How can we have listened to your testimony last time, and of course if we believe Mme. Wilson-Raybould's testimony, do anything but conclude that you have in fact crossed the line into partisan activity?
Wernick: I can only repeat I state categorically that I have never given advice or have done any thing for partisan purposes, which would suggest to advantage one political party versus another in the political arena.
Rankin: So the attempt to change the channel last time so that the headline would be about "assassination" and the like, the attempt to talk about a minister who has nothing to do with this matter and how terrific she served Canada, we are to assume from that that was just something that you wanted to get off your chest at a discussion about the Shawcross principle?
Wernick: I was aware of the punditry and the media traffic and the social media traffic that had been triggered around this issue. I stand by every word I said in the opening statement. They come from a deep place of concern about this country and I repeat them. I have had the highest security clearances of this country and I am deeply worried about foreign interference in the election. If that was seen as alarmist, so be it. I was pulling the alarm. We need a public debate about foreign interference. I am never accepting, never accepting, that we would normalize the cyberbulling of public officials. I have been exposed to it, it upsets me, and it angers me. I am upset by the trolling that took place [...] I deplore the cyberbullying of politicians of all stripes.
Rankin: Thank you. So do we all, although what that has to do with this is a little unclear...
Wernick: IT MAY HAVE TO DO WITH THE INTIMIDATION OF A WITNESS.
Rankin: We had a number of comments made by Mme. Wilson-Raybould about yourself, and I want to give you the opportunity to refute them. Number one, you are quoted as saying "I think he is going to find a way," speaking about the prime minister, "to get it done one way or the other. So he is in that kind of mood and I wanted you to be aware of it." Did you say that, or words approximating that?
Wernick: I do not have an independent recollection of the event. I did not wear a wire, record the conversation, or take contemporaneous notes.
Rankin: So it wouldn't have stuck in your mind, words like that?
Wernick: That is not my recollection of the conversation.
Rankin: Then she said she warned you in this call that "we were treading on dangerous ground and I also issued a stern warning because as the attorney general, I cannot act in a manner and the prosecution cannot act in a manner that is not objective, that is not independent. I cannot act in a partisan way and I cannot be politically motivated. This all screams of that." Sound right?
Wernick: I do not have contemporaneous notes or a recording of that conversation. I recall the sentiment and I agree with it. Nobody was asking her to do anything for partisan reasons.
Rankin: "The Clerk said that the prime minister is quite determined, quite firm, and he wants to know why the DPA route which parliament provided for isn't being used. I think he's going to find a way to get it done one way or the other. He's in that kind of mood." Can you not see that she might reasonably interpret those words, if they were in fact made, as code, a sinister effort to get her to change her mind? Couldn't a reasonable person hear that and conclude that, as she did, that it was very much a veiled threat?
Wernick: I am in no position to comment what was in the mind of another person. I can only comment on what I was conveying to her, which was context and public interest considerations on a decision that was entirely hers to make.
Rankin: So entirely for her to make, but you certainly tried, it seems to her, to have changed her mind in a way that would cross the line that we're here to explore. She took it as a veiled threat, when I read it back to you I think a reasonable person could likewise infer that it was a veiled threat. Seems to me, sir, that you very much crossed the line in respect of an independent attorney general.
Wernick: Respectfully disagree, I never raised partisan considerations at any time. [...] I never suggested consequences for her.
Rankin: In the last round, I asked you a number of questions about the call you made on December 19 to the former attorney general, and you said you didn't recall a number of things I asked you. Now, we have, as a fact, that [two cabinet ministers] resigned from cabinet, and you're telling Canadians that you don't remember saying any of the key things that the former attorney general testified to. So my question is, how can you expect Canadians to believe that these highly competent, highly credible women got this so wrong?
Wernick: I think there's a few plot holes in the question. It is very clear from the sequence of events that whatever triggered Minister Wilson-Raybould's resignation happened after she was moved and after the appearance of the Globe and Mail story.
Rankin: I have another one for you. [...] Do you think it's fair that the Liberals on this committee voted to invite you back to address the testimony of Jody Wilson-Raybould but they just voted against extending her the same courtesy?
Wernick: It was entirely for the committee to decide.
Rankin: So you have no opinion based on your vast experience with agencies, boards, and commissions? Whether that's a fair process?
Wernick: I work for the executive and I will not opine on how parliament should conduct its business.
"Knowing all of that public information, why did you say precisely the opposite to the attorney general?"
Pierre Poilievre (CPC, ON): Mr. Wernick on September 17, 2018, in your presence, the prime minister told the attorney general that if there was no prosecution agreement, that SNC "will move from Montreal". Did the prime minister note at the time that a financing agreement with the caisse de dépôt made it impossible for SNC to move its headquarters before the year 2024? Yes or no?
Wernick: That is not my recollection of what the prime minister said.
Poilievre: So he did not say that SNC "will move from Montreal if it does not get a DPA"?
Wernick: That's not my recollection of what he said.
Poilievre: Well let's turn to what you said, hopefully your memory is a little better on that. At the same meeting, you told the attorney general that there would be a board meeting of SNC-Lavalin within 3 days and they "will likely be moving to London". Who told you that SNC would likely announce a move of its headquarters to London at its September 20, 2018 board meeting?
Wernick: That is not my recollection of what I said.
Poilievre: Are you certain that you did not say it?
Wernick: That is not my recollection of what I said. If I could explain, if you're interested in the answer, the company was operating under disclosure obligations at all times as a publicly traded company. [...] So an announcement by the company was imminent [...] because of their obligation to markets.
Poilievre: And when did that announcement come?
Wernick: The track record of what the company said and when is on the public record. I am not aware of that.
Poilievre: Also, at a December 2018 meeting, Ms. Raybould says you said, and I quote, you spoke about "the company's board and the possibility of them selling out to somebody else", "moving their headquarters", and "job losses". Did you say that?
Wernick: The options open to the company were a matter of public record in the business press. (Poilievre interrupts forcefully)
Poilievre: Here's the problem. The public record was clear that they were not moving their headquarters. That was the public record. Anybody that could use Google could find shareholder disclosures showing the company had to stay in Montreal for at least another 6 years. When you said on December 19 that the company was moving its headquarters if it didn't get a DPA, that was two days after the Toronto Star reported that the CEO said the company is "committed to remaining headquartered in Montreal". How is it possible that you didn't know that, two days earlier, the company had publicly stated its plans to stay in Montreal, when you told the attorney general the opposite?
Wernick: So you will know, sir, that it is possible for a company to retain a shell headquarters in a city and move the guts of its operations somewhere else.
Poilievre: But that's not what you said. You said that the headquarters would move.
Wernick: That is not my recollection of what I said. I never said at any point at any conversation this is what the company will do, because I would have no knowledge of that. I would know that there was potential risks of a number of outcomes from the company. I had communications with the company on September 18 in the afternoon, and I have just provided the committee with the notes that were taken at that meeting, and I took a call from the chair of the board around 11am of October 18. Those are my sole communications with the company.
Poilievre: But with respect, your suggestion that the headquarters would become a shell is also impossible because the loan agreement with caisse requires that the CEO, all the senior executives, all the decision making, a large number of the board members, would have to stay in Montreal. It was also public knowledge the company had signed a 20-year lease in Montreal, and announced massive and costly renovations to continue to house its HQ in Montreal, and the CEO had said publicly that he was staying in Montreal. Knowing all of that public information, why did you say precisely the opposite to the attorney general?
Wernick: That is not my recollection of what I said. Fact number one about the entire file is that the case is going to trial, and there is a prosecution underway. The possible outcome of that is a conviction, which would bar the company from public infrastructure contracts across the country, and potentially in international markets. So the company was, and is, at risk.
Poilievre: Yes, but, once again, my question, very simple. Did you or the prime minister ever tell the attorney general that the headquarters would move if she did not sign a DPA.
Poilievre: You did not?
Poilievre: Okay, thank you. Were you aware that the government was working on a provision to allow SNC-Lavalin or companies like it, that are convicted, to continue to bid on federal contracts? Yes or no?
Wernick: These are not yes or no questions, sir. It is well known that the law was brought into effect over the spring and summer of last year. [...] there were extensive consultations which are still underway by the PSPC department [...] The purpose as I understand it, was to make sure that it wasn't a binary choice and that there would be options available to a government in terms of the consequences of a conviction. A ladder of sanctions.