Former Attorney-General Jody
Wilson-Raybould’s 17-minute taped conversation with the Clerk of the Privy Council,
Michael Wernick, on 19 December, 2018, while she was in Vancouver - without a
secretary - and he in Ottawa, raises questions of intentions and consequences. The political scientist and intellectual
historian, Quentin Skinner, delves into the “recovery of intentions” in his
landmark essay “Meaning and understanding in the history of ideas”, and I shall
attempt to borrow some of his analysis here.[1]
The tape
recording begins with Jody Wilson-Raybould speaking at times slowly: “SNC”, “DPA”, and it shows much more
consciousness, or self-consciousness, with statements clearly made and intended
for the record: “I feel uncomfortable
having this conversation …”. Then what
is her intent? Aide-memoire (as she claims) or is she collecting evidence? Skinner can be used to explain: “It is true
that unless I do perform the action or solve the problem which I intended to do, then it can never be known what
my problem was – for there will simply be no evidence.”[2] In other words, Jody Wilson-Raybould faces
what she considers to be a problem, so she collects evidence towards her case
in order that it be recognized. To further the point: in taping she is acting
in a forensic capacity as Canada’s top Attorney-General against the unsuspecting
top Civil Servant.
Michael
Wernick is speaking without self-consciousness, is not truly aware that he is potentially
crossing any lines, is not intending to violate “the spirit of the laws” (as
Montesquieu would have it) and certainly is not speaking with criminal intent.
Rather, he is communicating the Prime Minister’s position and in a frank manner
with a suggestion of reconciliation, which he repeats: (“I respect where you’re
coming from“ and ”I understand where you’re coming from”). The Prime Minister’s stated intention is to save jobs and to use “tools”
such as the Deferred Prosecution Agreement (DPA) – not to force a “Saturday Night
Massacre”, as Jody Wilson-Raybould decodes (or rather seems to anticipate) in her Attorney-General mode of
heightened consciousness. However, to
borrow a caveat from Quentin Skinner again: there may have been an “intention in trying to do something” but the
results – not necessarily a Massacre - were unsuccessful.[3]
It would appear that Wernick may have been trying primarily to raise the
possibility of getting an outside legal opinion, namely that of the former Chief
Justice of the Supreme Court, Beverly McLaughlin, but the mere suggestion would
have implied (to Wilson-Raybould) that her own competence was being questioned, an
unintended consequence. Here we get to a general problem of miscommunication, a
mismatch of what is on one radar screen and not on the other: she expressly uses
the words “constitutional principle” and “integrity of the Prime Minister” -
not “criminal” or “illegal”, although she declares early on in the tape that “we’re
treading on dangerous ground”. Wernick
does not appear to register (or take seriously) Wilson-Raybould’s full forensic meaning – despite his statements (quoted
above) - as she draws in her mind comparisons
between perfidious Nixon and so-called ‘Just’ Trudeau, otherwise Wernick
would most likely have followed up with the Prime Minister – and immediately
so. In other words, she may have
misjudged Trudeau’s intentions, while transfixed by the idea of a Massacre,
which turned out to be a myth.
Had he been
made aware of the fact that the conversation was being taped it is rather
self-evident that Wernick would have chosen his words more carefully, would
have been less repetitive about the Prime Minister’s wishes – and he most
certainly would have ‘gotten back’ to the Prime Minister about the call,
despite the fact most people were going on Christmas break in the days that
followed. In other words, Jody Wilson-Raybould had the upper hand all along. But the irony was she did not succeed in
getting through to the Prime Minister (odd for a person who ‘speaks truth to
power’): the unintended consequence of the recording was that nothing really happened
– until the leak. She resigned after she had been shuffled from her Cabinet post not knowing her conversation of 19 December had not been forwarded
to the Prime Minister, according to Wernick’s lawyer. What originally appeared as an aide-memoire for Jody Wilson-Raybould, could
have been useful as an aide-memoire for
Michael Wernick: pity he too did not record the call.
But the tape
recording as received by the Prime Minister - and the Liberal Party - was quite
different from what Jody Wilson-Raybould intended. [4] If Jody Wilson-Raybould only intended to offer convincing evidence of political
interference in the SNC-Lavalin case (and there is an element of doubt as to
the singularity of her intentions), she also offered convincing but unintended proof
that she was no longer a colleague. As
Monty Python puts it: “No one expects the Spanish Inquisition!” But that’s just what was brought on, with the
eyes of the media and Opposition examining every resignation, every shred of
evidence in the controversy for two solid months since the story was first
leaked to The Globe and Mail on 7
February. And one reason why this controversy dragged on even longer than it needed to was because the Prime Minister was
secretly negotiating for a truce with Jody Wilson-Raybould, who appears to have
been unable to curtail her stipulations, according to news leaks. The early news leaks made her a hero – none of
them implemented by her, according to Jody Wilson-Raybould’s statements; later ones were intended to sully her reputation, not all of them appropriate.
Now
what? The Liberals are down in the
polls, and there’s a federal election in six months’ time: Advantage Andrew Scheer
and the Conservatives! Today Jody
Wilson-Raybould is a national icon for Indigenous Peoples and considered a valuable
role model for women, along with Dr. Jane Philpott who resigned in protest, as
well, only to be later booted out of Caucus. But, given the Opposition’s
first incarnation under Harper, all does not bode well: what will the
Conservatives do for Reconciliation?
What will they do for Climate Change, with four (read: “provincial”) Premiers lining up against the Carbon Tax, alongside Scheer?
Jody Wilson
Raybould’s full forensic approach to her role as Attorney-General was intended
to throw light on her perception of interference, however unwitting by Wernick. Irony rules in politics (and war) and
consequences have since well surpassed the plan to tape, for as the well-trod saying goes (and this could apply to Trudeau too) “the road to hell is paved with good
intentions”. It is not just hell for the
Liberals that I am concerned about, though: it is hell for all Canadians as the climate
warms, while the Conservative refuse to stand on guard and protect our environment.
Since the
story broke the Liberals under Justin Trudeau have been considered – by the
Opposition, the media, and the public – as a government of weakness and
constitutional illegality. While some
among the Trudeau team may have temporarily muddied “the spirit of the laws” -
Montesquieu’s trinity of the legislative, executive and the judiciary - I
humbly suggest that Harper was far worse with his habit of proroguing
Parliament at length when it suited him most.
In the very same chapter where Montesquieu’s trinity is first discussed,
he also warns: “If the legislative body were not convened for a considerable
time, there would no longer be liberty.”[5] Who among the Conservatives dared to ‘speak
truth to power’ then?
[1]
Quentin Skinner, “Meaning and understanding in the history of ideas,” in Meaning and Context: Quentin Skinner and his
Critics, ed. James Tully (Princeton: Princeton University Press), p. 64.
[2] Ibid., p. 65.
[3] Ibid.
[4] David Wootton, Power, Pleasure and Profit: Insatiable Appetites from Machiavelli to
Madison (Cambridge, Mass: Belknap Press, 2018), p. 65.
[5] Montesquieu, The Spirit of the Laws,
eds and trs. Anne Cohler, Bascia Miller, Harald Stone (New York: Cambridge
University Press, 1990), p. 151.
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