OTTAWA –As former justice minister Jody Wilson-Raybould debated whether to intervene in the corruption prosecution of SNC-Lavalin, she received legal advice from her department that underscored what an unprecedented move that would be.

The legal advice prepared by the department set out her possible options on the SNC-Lavalin prosecution, including the ability to seek outside legal advice, but it stressed that no chief prosecutor has ever intervened in a specific case, and that any decision to intervene must be “hers alone.”

“Any decisions by the Attorney General of Canada are hers to make, independent of political considerations or processes, and in the public eye,” the document states.

The Liberal government is in the midst of a political firestorm over whether Prime Minister Justin Trudeau and his officials exerted undue pressure on the Wilson-Raybould to overrule the director of public prosecutions, and direct her to negotiate a deal with the Quebec company under a brand new law to allow remediated agreements in certain financial crime cases.

Wilson-Raybould says Trudeau and his officials raised “inappropriate” political considerations – such as the possibility of job losses in a province where the Liberals are counting on seats to be re-elected. But she testified their actions did not cross any legal lines.

Trudeau and his team, including his Privy Council Clerk Michael Wernick and former top aide Gerald Butts, have denied pressuring her, but insisted job losses were a proper public policy consideration that had to be weighed, and said they encouraged her to take outside legal advice.

Wilson-Raybould is seeking to bolster her testimony with copies of emails and texts.

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On Friday, the House of Commons’ justice committee is expected to release her documents along with a new written submission from her, after Liberal MPs denied an Opposition request that Wilson-Raybould be recalled to rebut Butts and Wernick.

Wilson-Raybould’s package of material is about 44 pages in all, according to one committee source, but had to be translated before being publicly released.

Liberal MP Anthony Housefather, the committee chair, expects the package to be available Friday afternoon.

Quite apart from Wilson-Raybould’s personal notes and texts, the committee has already received a copy of the legal opinion prepared by her old department that was labelled as protected under “solicitor client privilege.”

The Star received a copy of the three-page legal opinion from the justice committee, although it has not been posted publicly on the committee website.

It says the Attorney General of Canada is ultimately responsible for criminal prosecutions.

“She must carry out those responsibilities independent of Cabinet and of any political considerations, and must be seen to undertake those responsibilities on objective and legal criteria,” the document said.

“Whether to initiate or stay a criminal proceeding is not a political matter, and the attorney general of Canada is acting in her capacity as chief law officer of the Crown, not a minister of the government of the day, when she makes such decisions,” it said.

“Policy considerations may be weighed in making decisions on criminal prosecutions. She may choose to consult members of cabinet at a general level on policy considerations but decisions related to the conduct of individual prosecutions must be hers alone and not the result of a Cabinet decision making process.”

According to testimony by deputy justice minister Nathalie Drouin, the legal advice was prepared after Sept. 4 when the Director of Public Prosecutions Kathleen Roussel advised Wilson-Raybould she would not enter negotiations with SNC-Lavalin to settle criminal charges of bribery and fraud.

Drouin said she gave Wilson-Raybould’s senior staff a copy of the draft legal opinion on Sept. 8.

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Wilson-Raybould testified that by Sept. 16 she had made up her mind after reviewing advice by her department, her minister’s office “and work I conducted on my own, that it was inappropriate for me to intervene in the decision of the director of public prosecutions in this case and pursue a deferred prosecution agreement.” She says she told the prime minister verbally of her decision on Sept. 17.

Wilson-Raybould has never publicly identified her reasons for that decision. Nor has Roussel, the head prosecutor, outlined her rationale for denying a remediation agreement to SNC-Lavalin. Neither is obliged to under the statute or in common law, according to a federal court decision that rejected SNC-Lavalin’s attempt to force their hand.

The legal opinion prepared for Wilson-Raybould outlines clearly that although she could assume conduct of a prosecution, or direct a specific course of action in a particular case, it had never before happened.

“To date, the Attorney General of Canada has not issued any directives in respect of specific cases,” the department wrote.

It says if she did act under the various powers she has to take over a prosecution, notice must be published in the Canada Gazette, although publication can be delayed, but “not beyond the completion of the prosecution or any related prosecution.”

The memo says historically, “the practice of successive Attorneys General has been to refrain from becoming involved in the operational decision-making in specific prosecutions, even prior to the enactment of the Director of Public Prosecutions Act.”

That’s the law that took effect in December 2006 under the Conservatives, which created the independent prosecutions office, with the goal of explicitly establishing the independence of prosecutions from the political sphere.

The justice department’s legal opinion described an attorney general’s powers when it comes to the new law on remediation agreements — a law that SNC-Lavalin actively lobbied for and hoped to become the first beneficiary of. It was then set to come into force Sept. 19, 2018 — nearly two weeks later — and has never been tested in Canada.

The memo says the law sets out specific conditions that must be met before any deal can be negotiated, including that the prosecutor must believe that entering a negotiation towards an agreement “is in the public interest and appropriate in the circumstances.”

The document says if the attorney general disagrees with the director of prosecutions whether the conditions to negotiate an agreement are met, she may direct the prosecutor to reconsider her decision, direct that a specific prosecutor be appointed “to conduct a reassessment and to act on its results,” or take conduct of the prosecution, and appoint a prosecutor to act as her agent to negotiate an agreement.

She can also “seek advice” about the exercise of her powers, and the memo says she could “engage someone outside” the Public Prosecution Service “to assess the case and advise her as to whether the conditions for a remediation agreement are met.”

It is this latter course of action that the PMO officials – according to both Wilson-Raybould and Gerald Butts – were urging her to take, and that she refused.

The memo, which Butts said set out her “options,” says Wilson-Raybould is not bound to accept the outside advice — which Butts also stressed was the PMO’s understanding as well.

The Star has reported that her successor, David Lametti, has sought external advice in the SNC-Lavalin affair, but will not reveal what it is.

With files from Bruce Campion-Smith

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