Deputy Minister of Justice - Opening Remarks at the House of Commons Committee on Justice and Human Rights

March 6, 2019

Nathalie G. Drouin, Deputy Minister of Justice and Deputy Attorney General of Canada 

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Introduction

I would like to thank the members of the committee for allowing me to make this opening statement. My opening remarks will address my role and responsibilities as Deputy Minister of Justice and Deputy Attorney General of Canada, my professional relationship with the Honourable Jody Wilson-Raybould and my chronology of events.  

As Deputy Minister of Justice and Deputy Attorney General of Canada, I support the Minister of Justice and Attorney General and the government in the development of their policy objectives.  In the exercise of my duties, my vision has always been the provision of high-value legal services. 

I encourage Justice Canada legal staff to build on the traditional role of legal professionals so that the role is one where legal professionals and clients form a strategic alliance, working as partners focused on finding solutions and delivering results.

In my role, I have the privilege of working with highly competent and impressive individuals. 

The former Minister and Attorney General and I had a very positive working relationship. I commend her for what she brought and brings to Canada in her role in public office. I can tell you that I learned a lot working with her, especially in terms of Indigenous issues and law-making. In fact, we continue the work she began at Justice Canada by taking a new approach to Indigenous litigation.

I hold myself and my staff to the highest standards of providing non-partisan advice.  My role in supporting the Minister and Attorney General demands that I uphold the values and ethics expected of me - both as a public servant and as a lawyer.  

I would like to begin by describing my dual role as the Deputy Minister of Justice and Deputy Attorney General of Canada.  I have been in this position since June 2017.  

In both these roles, I support the Minister of Justice and Attorney General of Canada in fulfilling his or her responsibilities.  

My functions include:

• Giving legal advice and coordinating the legal advice given by the Department of Justice
• Supporting the development of legislation and policy that fall within the Justice portfolio
• As well as acting as the formal representative of the Crown in all civil litigation involving the Government of Canada.  

In addition to my support, the Attorney General of Canada is also supported by the Director of Public Prosecutions who is also a Deputy Attorney General of Canada. The DPP and I do not report to each other. It is not my role to discuss specific prosecutions with her, and I have not discussed the substance of the SNC-Lavalin prosecution with her.

However, I do provide advice to the Attorney General of Canada in her or his decision making as to whether or not to issue directives to the Director of Public Prosecutions or to assume the conduct of a federal criminal prosecution.  In such situations, I approach giving legal advice in the same way I would when giving advice on any other statute, but with careful attention to the distinction between my job and that of the DPP.

Chronology

Mr. Chair, I would now like to provide the Committee with a detailed account of my interactions on this file, as is permitted by the scope of the Order in Council that was enacted by the Governor General in Council on February 25, 2019.  

In order to provide you with this account, to the best of my ability, I have reviewed my emails, files, and agenda.  I have not consulted with Ms. Wilson-Raybould, Minister Lametti or their staff or anyone outside of the Department on facts that are my own.  

My account will include details of the discussions that I had with the former Attorney General respecting the exercise of her authority pursuant to the Director of Public Prosecutions Act as well as the SNC-Lavalin prosecution.

September 4

The Department became aware of the Director’s position to continue with the prosecution of SNC-Lavalin.  I would to clarify that I do not know how or when the Director’s position was shared with SNC-Lavalin.  

September 5

As I mentioned, I have reviewed my calendar to my best ability.  My calendar indicates that on September 5th I had a phone conversation with Paul Rochon, Deputy Minister of Finance; however, I cannot recall whether we talked about this file, another file, or both. 

In addition, from what I can recall, the first discussion that I had with Ms. Wilson-Raybould on this file was late in the afternoon on September 5th.  The purpose of the call was to discuss another file, but from what I recall, SNC was also discussed on the margins.  The former Attorney General was in Fiji and there was a 17 hour time difference. 

Two of her staff members, Jessica Prince, Chief of Staff, and Emma Carver, Policy Advisor, joined the call.  We agreed that the department would provide advice on the role of the Attorney General, for her consideration.  I told them that the department had begun working on the advice the evening before.

September 6-7

For the next two days, my officials and I developed the written advice.  I also provided verbal advice to the AG’s staff, Emma Carver and Francois Giroux, on the Attorney General’s powers under the Director of Public Prosecutions Act.  

I advised that it would be very important for the Attorney General to be comfortable with the Director’s position to not pursue a remediation agreement.  I emphasized that the Attorney General was entitled to receive as much information as she considered necessary from the Director.  

It was during the course of these conversations with Emma Carver and Francois Giroux that they read to me the extracts of the section 13 letter from the Director of Public Prosecutions to the Attorney General on the SNC-Lavalin prosecution.  

For clarity, a section 13 letter is a letter from the Director to the AG to inform the AG in a timely manner of any prosecution, or intervention that the DPP intends to make, that raises important questions of general interest. 

As I have explained to the Committee, in fulfilling my role as Deputy AG, I am very careful to separate my role and responsibilities from that of my counterpart, the Director of Public Prosecutions.  As I have mentioned, I have no role in specific criminal prosecutions and I am not privy to any of the evidence.  This was why I refused to review and receive the section 13 letter. 

It was during this same conversation that Emma Carver informed me that she was drafting a document that she intended to provide to her counterparts in the Prime Minister’s Office (Elder Marques and Amy Archer).  I was also told that the Attorney General was not keen on the idea of exercising her authorities under the DPP Act.

In her testimony, the former Minister mentioned that I had conveyed information from the Department of Finance.  To clarify, on September 7th, I spoke with the Deputy Minister of Finance, Paul Rochon. He had questions regarding the decision making process and the roles and relationship of the AG and the Director of Public Prosecutions.

Also on September 7th, I spoke to the former Attorney General’s chief of staff, Jessica Prince, and provided her a verbal outline of what we were drafting for the AG’s consideration.  

September 8

On September 8th, I provided a draft opinion to the former AG’s office.

The opinion is entitled “The power of the Attorney General to issue directives and to assume conduct of proceedings.”  The opinion begins with a discussion of the Attorney General’s independence and her ultimate responsibility for criminal prosecutions.  It describes the role of the DPP in much the same way I have explained to this Committee.  It also describes the power to assume conduct of a prosecution and the power to issue directives.  

The opinion also provides advice to the AG on the role of the DPP and that the AG is entitled to receive information from the DPP in order to understand a decision.  

Various options are set out in the situation where the AG either disagrees with the Director’s position or wishes to further assess the decision.  These options include the issuance of directives that direct reconsideration or appoint a specific prosecutor to reassess.   

Another option covered is for the AG to decide to assume conduct of a prosecution, consider whether statutory conditions for remediation agreements are met and if so, appoint an agent to negotiate such an agreement.  

The legal opinion also canvasses the possibility of seeking outside advice with respect to the AG’s powers under the Act and the Criminal Code in order to assess whether the conditions for a remediation agreement are met.  

The legal opinion advises that the relevant constitutional and statutory framework prioritize independence and transparency and that any decision by the AG is “hers to make, independent of the political considerations or processes.”  

There is also a short discussion of the deference by courts to prosecutorial discretion, which can be reviewed only for abuse of process.

I would like bring some context to this part of my remarks.  While I have been at Justice Canada for almost three years, as you know, I also worked in Quebec in similar roles.  During that time, I gained expertise in this area and I have faced similar situations where decisions of a DPCP were publicly challenged and where an AG was called upon to act.  I appropriately brought this professional experience and expertise to bear on the advice my department provided to the AG in this matter.  

September 10

The next day, September 10th, the Department responded to two follow-up questions that we had received from the Attorney General’s office as a result of the draft advice.  

September 11

On September 11th, the Attorney General’s acting Chief of Staff, Francois Giroux, informed me by email that the AG was not intending to intervene in the case and that she would be pleased to discuss it.

September 12

The next day, September 12th, the Department of Finance indicated to me that SNC-Lavalin was still in discussions with the DPP.  I therefore understood that the DPP’s position on whether to invite SNC to negotiate a remediation agreement was not final.  

On September 12th or 19th, a discussion occurred with the Clerk on the margins of a weekly meeting all DMs attend, called DM Breakfast.  

I recall I had a discussion with the Clerk where we discussed options that the AG had available to her, her role, the DDP’s role as well as mine. 

September 16

On September 16th, I had a call with PCO where we would have discussed the advice on the AG role and options.

September 17

To the best of my recollection, my first face-to-face meeting with the former Attorney General on this file was September 17th, and I believe we may have only briefly discussed it on the margins of another meeting.  

September 18

I also saw the Minister on September 18th and 19th.

On September 18th, the only purpose of the meeting, was for the Minister to debrief on her meeting the day before with the Prime Minister. I do not recall her specific words but I remember her telling me that the Clerk was present. She also expressed to me that she was not comfortable with the content of this conversation.  

September 19

During my bilat on the afternoon of September 19th with the former Minister and AG, she told me that she just had a discussion with the Clerk. During the same meeting, I clearly recall that the former AG said to me that this would be the last time we discussed the SNC-Lavalin matter and she also instructed me to not have any discussion with the DPP.

After September 19

To the best of my knowledge and to be clear, after September 19th, I did not have any further involvement on this file with the Minister or her staff, with two exceptions. 

October 19

The first of the two exceptions occurred on October 19th when the application for judicial review of the DPP’s decision was filed with the Federal Court. As would be regular process where there is an application for judicial review, officials in my department discussed with the DPP who should appear on behalf of the Crown.

The second exception occurred near the end of October. I do not have the exact date. The Privy Council office asked my department for an opinion on the potential impacts on SNC-Lavalin if the prosecution were to result in a criminal conviction. My department developed the draft legal advice.  It was not provided to PCO at the request of the Minister’s Office.

Finally, before completing my chronology, I would like to return briefly to the time I first became aware of the January 14th shuffle.

January 11

On Friday, January 11th, the Clerk of the Privy Council called to inform me of the upcoming shuffle. I was not told who the new Minister would be.  I asked the Clerk what areas or files I should be preparing to brief our new Minister on. 

The Clerk identified briefing the new Minister and Attorney General on roles and responsibilities as the primary need. This indicated to me that we were going to be receiving a first-time Minister. 

The Clerk also recommended that I brief the new Minister on Indigenous files because the Prime Minister could ask the new Minister to attend a meeting with Indigenous organizations early the next week. 

He also recommended briefing the Minister on current issues, including remediation agreements and SNC.  As you are aware, SNC-Lavalin had sought a judicial review of the DPP’s decision and this was a “live” issue for the new Minister to be made aware of.  To brief the new Minister, I developed with the assistance of my immediate team a briefing handbook, which I am tabling here today.  

You will notice that remediation agreements are included in the briefing handbook, among other files. It was in this context that on the afternoon of January 11th, I informed Jessica Prince, who I thought was remaining as Chief of Staff, we would need to brief the new Minister on.

Conclusion

Thank you for your consideration. I am now prepared to answer your questions.