This is the third in our series of videos on the policy issues surrounding the so-called
Lavscam scandal now engulfing the Trudeau government.
This video looks at the issue of the propriety of Jodi Wilson-Raybould, the former Justice
Minister, taping a conversation between herself and the then-Clerk of the Privy Council, Michael
Wernick, on the very issues at the heart of Lavscam.
The tape’s existence came to light when Wilson-Raybould submitted it as part of her
supplementary written evidence to the Commons Justice Committee that heard her original
testimony about Lavscam in late February.
The impropriety of the recording was highlighted by the prime minister, Justin Trudeau, as
the headline reason why he was expelling Wilson-Raybould and her former cabinet colleague Jane Philpott
from the Liberal caucus.
According to the PM, this action by Wilson-Raybould broke the trust that must exist in order for
members of the Liberal caucus to work together.
The PM qualified the recording as “unconscionable” and this view was echoed by numerous Liberal
caucus members as justifying the expulsion of the two MPs.
One MP qualified the recording of Wernick as “entrapment”, suggesting that Wilson-Raybould
used her knowledge that a recording was being made to manoeuvre Wernick into making damaging
statements that he might not have made “on the record”.
At first blush this argument has some credibility.
Any enterprise, including a political party, must have a certain level of trust and mutual
confidence in order to function, and this requirement is even stronger within cabinet,
where ministers must have a minimum of trust in each other for government to work and decisions
to be made.
Moreover, Wilson-Raybould is a (non-practising) lawyer, and the legal profession has ethical
rules against recording conversations without informing the other party.
Wilson-Raybould herself acknowledges that her action would, in normal circumstances,
be “inappropriate”.
The key phrase here is “in normal circumstances’.
Was there something about the circumstances in which Jody Wilson-Raybould found herself
which might ethically justify an action that ordinarily would be beyond the pale?
I think there is a strong case for Wilson-Raybould’s perspective, and that she found herself in
the unenviable position of having conflicting moral obligations.
In other words, in a situation that was not of her creation, there was NO course of action
available to her that did not require her to neglect one ethical obligation or another.
In these circumstances she had to make a choice which obligation to override.
Did she make the right one?
Let’s look first at the conflicting obligations.
We have already reviewed her obligations to her cabinet and caucus colleagues and as a
lawyer.
Against these must be set her obligation as the Justice Minister and Attorney General
to protect the integrity of the rule of law and prosecutorial independence at the heart
of Lavscam and to denounce attempts to damage or twist these fundamental principles for
improper and unethical reasons, even when those attempting to do so are her cabinet
and political colleagues to whom she owes a duty of good faith collaboration.
Another video in this series looks at the issue of prosecutorial independence and why
it matters, so I will take it as read here that this principle is important and worth
defending.
Let’s recall now that the Wernick conversation took place in mid-December and followed a
months-long series of meetings and communications involving the PM and his associates on the
one hand, and Jody Wilson-Raybould and her colleagues on the other.
In those conversations the Attorney-General and her colleagues, according to her own testimony
and detailed contemporaneous notes, were very clear to the PM’s people, that their attempts
to press her to overrule the decision of the Director of Public Prosecutions in the prosecution
of SNC-Lavalin were an improper attempt to override the principle of prosecutorial discretion
and she also underlined over those months that she was striving to help the government
avoid a scandal that would almost certainly arise if their efforts were successful.
By the time of the Wernick discussion in December, it would appear that Wilson-Raybould had concluded
that her entreaties to respect the rule of law, constitutional principles and the reputation
of the government were falling on deaf ears.
Indeed, one of Trudeau’s most senior advisors had been completely dismissive of “legal
technicalities” being used to obstruct the government’s political agenda.
Finally, she was under the impression that if she did not play ball there was a serious
possibility she would be fired as Justice Minister and a new minister put in place who
might be more accommodating of the government’s agenda.
On my reading of the facts we possess, at this juncture Wilson-Raybould decided that
her obligations of cabinet and caucus solidarity and so forth did not require her to acquiesce
in what clearly appeared to her as a conspiracy by senior government figures improperly to
influence the justice system and undermine the prosecutorial independence she was sworn
to protect and uphold as Attorney-General.
In other words, her obligation to protect the integrity of the rule of law overrode
the others.
Given this unenviable choice, I hope I would have had the strength of character to do what
Jody Wilson-Raybould did, which was to ensure that indisputable evidence of these efforts
was preserved.
Hence the recording.
Jane Philpott came closest to putting the recording in proper perspective.
In her letter following her expulsion from caucus she wrote that the government’s “…approach
now appears to be focused on whether Jody Wilson-Raybould should have audiotaped the
Clerk instead of the circumstances that prompted Jody Wilson-Raybould to feel compelled to
do so.”
Whether you agree with Wilson-Raybould and Philpott’s interpretation of what the government
was trying to do, the fact is that the recording is a vital piece of evidence that supports
their view and has helped to achieve the objective of making the government pay a political price
for making every effort to violate important constitutional principles.
It is also not without irony that the tape also revealed that Jody Wilson-Raybould was
actually trying to protect the Prime Minister and the government from the consequences of
a wrong-headed and improper course of action they seemed determined to pursue.
Wernick, and others, heedlessly ignored her repeated warnings by continually pressing
her to intervene because of the issue of job losses and potential political fallout in
Quebec which she apparently had already considered and rejected as a ground for overruling the
decision to prosecute SNC Lavalin.
IA basic truth of morality is that our obligations can and often do conflict.
The true test of character is how we resolve these conflicts.
My view is that at a difficult time the Attorney-General made a courageous decision to put principle
before political expediency.
The focus now should be on the propriety of the actions of those who put her in the position
where such a choice had to be made.
I’m Brian Lee Crowley for the Macdonald-Laurier Institute.