By Sheila Copps
First published in The Hill Times on February 25, 2019.

OTTAWA—Michael Wernick almost never smiles.

He is the epitome of rectitude, an example of a public servant who serves political masters with rapier logic and never meddles in politics.

The clerk of the Privy Council proved Thursday why Canadians have no need to fear an abuse of judicial due process in the SNC-Lavalin affair.

Wernick was unequivocal that he had never rebuked the former attorney general, and went so far as the say the original story in The Globe, which spawned the whole feeding frenzy, was defamatory.

In the initial story, The Globe and Mail cited anonymous sources to back up the front-page story that the minister was demoted because of her refusal to approve a deferred prosecution agreement for the company. As Jody Wilson-Raybould is not speaking, it certainly seems like a one-sided narrative.

Wernick also pointed out that the first person to invoke privilege to limit to her testimony was the former minister herself.

In the House of Commons last week, in defence of her decision to abstain from a motion dealing with her situation, Wilson-Raybould continued to invoke multiple limitations on her capacity to speak.

At one point, she told the media that her role as a Member of Parliament and a caucus member also posed limitations.

Assuming that she, too, wants to clarify the situation, she should not be lawyering up on her responsibility as a Member of Parliament. Silence would be too heavy a price for her to pay.

Let’s assume that the aggrieved minister herself was one of the sources of the initial Globe and Mail tip. It seems like a fair assumption since her recent cabinet appearance was also followed by a sourced tip about how she had to wait two hours to get into the cabinet meeting.

How could it be in the interest of current cabinet members to leak the fact that the former attorney general was left cooling her heels in the hallway?

It is quite possible, and very believable, that Wilson-Raybould believes that her demotion in cabinet was caused because she resisted inappropriate pressure to rule in favour of a deferred prosecution agreement.

According to Wernick, the law itself permits all relevant parties, ministers, Members of Parliament, and public servants to be lobbied. The Lobbyist Act ensures that all those discussions are logged on a public registry. The Privy Council clerk also reminded committee members that Wilson-Raybould had multiple opportunities over a period of three months to highlight any claim of undue pressure.

To Wernick’s point, notwithstanding massive interventions from lobbyists, and two Quebec premiers, the company did not get what it wanted.

“If it’s a movie, it’s a flop,” was how Wernick succinctly summarized it.

However, if Wilson-Raybould was the source, her claims that she cannot speak to Parliament because of client confidentiality ring hollow.

If as an attorney, you cannot break privilege with your client, you surely cannot trash your client anonymously in the newspaper.

The Globe team was obviously onto a hot issue. There was plenty of smoke. The minister herself had every right to feel hurt and confused about the demotion to the ministry of veterans’ affairs and associate minister of defence.

But the story of a former attorney general being hurt by a demotion is not front-page news. An anonymous allegation of criminal interference is.

Allegations should prompt a good journalist to pursue a potentially great story. It is not a story in itself. There must be a legitimate attempt to hear the other side’s account.

The importance of Wernick’s solid rebuttal and his impartial role to advise the prime minister cannot be overstated in this unfolding drama. In his view, at no time was the former attorney general improperly pressured on the SNC-Lavalin file.

Wernick has served seven prime ministers from two parties, and multiple ministers. He also holds an impartial position, which has existed, in the British parliamentary system for 800 years.

I had the privilege of working with him when I was minister of Canadian heritage and we were negotiating an international agreement on cultural diversity at UNESCO. Our team was intensely involved in very difficult circumstances and Wernick led the team with the same cool intensity he exhibited before the justice committee last Thursday.

Wernick’s testimony went a long way in defusing anonymous claims of criminal interference. The former minister will have her day in committee next week. But questions about why the former attorney general stayed silent for three months will no doubt be on the docket.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.

By SHEILA COPPS
First published in The Hill Times on June 18, 2018.

OTTAWA—Two bureaucrats rarely make it to the front page of The Globe and Mail.

The normal modus operandi is to stay behind the scenes and work things out collegially.

It is usually the politicians’ job to create the news, and when a bureaucrat does make the paper, the result is generally not positive.

To witness last week’s battle between chief Ottawa bureaucrat, Privy Council Clerk Michael Wernick and Auditor General Michael Ferguson was a head-turner.

Wernick, a discreet, effective, behind-the-scenes presence has long experience in ministerial and prime ministerial preparatory work. He has obviously determined that the silence-is-golden mantra of past bureaucracies, is just not going to cut it.

Wernick has also decided to engage in a high-risk, high return game of “gotcha” with the country’s most powerful number-cruncher.

Taking on the auditor general is usually a mug’s game. Outgoing premier Kathleen Wynne challenged her provincial auditor general’s bookkeeping methods in the cost-accounting applied to Hydro One.

Wynne may have trotted out compelling arguments to explain why the AG cost assessment was bloated, but that message never penetrated the public consciousness.

The only thing people understood was that hydro costs were growing exponentially and the political blame was laid squarely at the feet of the governing Liberals.

Auditor General Bonnie Lysk accused the government of “dramatically” understating Hydro One expense estimates. Lysk’s claim was based on accounting principles which differed by more than $6-billion from numbers presented by the government.

The Lysk version of the story won the day when Ontario voters ousted the Liberals in favour of cost-cutting Progressive Conservatives under the leadership of Doug Ford.

However, the difference between federal and provincial spats is huge.

Wernick is not a politician. His fight is not about numbers.

Instead, it is about an ongoing AG trend to go beyond the normal bounds of auditing when it comes to reviewing government programs.

In the report on the problem-plagued Phoenix pay system, Ferguson underscored “pervasive cultural problems” plaguing the public service.

The audit correctly identified deficiencies in inter-departmental collaboration on Phoenix implementation and accused Public Services and Procurement Canada of moving too quickly without ensuring that human resource support and technology integration would be able to absorb the switch.

The auditor general glossed over the fact that the amount budgeted for implementation almost doubled in three years.

In 2009, Treasury Board had approved a $155-million budget but in 2012, IBM hiked the bill to $274-million. Normally, it is the job of the auditor general to encourage departments to refrain from spending and to find ways to live within agreed budget means.

Instead, the AG accused the department of not asking for more money. In this case, the criticism was levied because the department had decided to whittle down costs instead of going back to Treasury Board for more money.

The AG also laid a claim of “pervasive cultural problems” within the public service, citing turnover at the deputy minister level as evidence.

Wernick countered with numbers. Of the 33 deputy ministers over which Wernick has authority, he says 49 of 99 had been in the job more than three years, 27 more than four years, and 16 more than five years. Hardly a huge turnover, in public or private sector terms.

Ferguson was probably shocked at the public push-back by the top gun.

Normally, Privy Council officials swallow AG advice, even when the agency deviates from legal auditing functions. Most departments nod and scrape to audit recommendations and ignore “opinion pieces” sprinkled through audit reports.

The most egregious “opinion piece” I witnessed was an AG report criticizing Parks Canada for refusing to establish new federal parks on provincial land in Quebec. Post-referendum, some Parks Canada officials recommended the possibility of a lease in lieu of Quebec’s refusal to cede public land to the federal government.

At a political level we rejected the option of establishing Canada’s future national parks on land that was not owned by the federal government. The AG slapped our knuckles for the decision, even though the issue had absolutely nothing to do with cost containment.

Over the past two decades, many audits have emphasized public policy opinions far outside the ambit of the normal audit functions ascribed to an agency overseeing government spending.

Wernick’s unprecedented public pushback is not the end of this story.

Ferguson’s 10-year appointment, expiring in 2021, included a promise to become fully bilingual. That promise is subject to review.

This shot across the bow by Canada’s top bureaucrat will likely not be the last.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.