OTTAWA—Attorney General David Lametti has sought an external legal opinion on “issues” raised by the controversial SNC-Lavalin case, which has seen two ministers resign over the PMO’s handling of the affair, the Star has learned.

“The minister has sought outside advice on some of the issues raised by the matter, which is typical on high-profile or otherwise important questions,” said Lametti’s spokesperson David Taylor, in response to questions from the Star.

Asked to clarify if Lametti went outside to get the external legal advice that former attorney general Jody Wilson-Raybould testified she refused to seek, Taylor said: “To be abundantly clear, the advice is not of the variety that PMO is alleged to have suggested to the former minister to get. It’s not in that realm.”

Wilson-Raybould testified last week that she resisted repeated efforts by the Prime Minister’s Office to persuade her to seek an outside legal opinion as a “solution” to resolving an impasse with the PMO. She said she believes she was demoted from her post as attorney general for refusing to bend to Prime Minister Justin Trudeau’s will. She resigned weeks later as veterans affairs minister, saying she no longer had confidence to sit around the cabinet table.

Taylor said the advice sought by Lametti was not to determine whether any pressure brought to bear on Wilson-Raybould was undue, unethical or unlawful.

So it remains an open question why Lametti went outside his own department in the matter, and what advice he got.

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“Any advice received or in the course of being generated is privileged,” Taylor told the Star late Tuesday.

However, Taylor did say that the external advice sought was not in relation to ongoing litigation; it does not relate to the preliminary inquiry into bribery and fraud charges laid against SNC-Lavalin. A conviction against the Quebec-based engineering giant could see it barred from federal contracts for up to a decade. The external opinion is also not in relation to the SNC-Lavalin application for judicial review at the Federal Court.

The company has pulled out all the stops in its effort to overturn federal prosecutors’ decision to refuse to mediate an out-of-court settlement — called a deferred prosecution agreement — on the criminal charges it faces. SNC-Lavalin’s application for judicial review was heard on Feb. 1, and the judge has not yet released her decision.

Lametti, a Montreal MP who was named justice minister in January, in a cabinet shuffle that saw Wilson-Raybould move to Veterans Affairs, has shown himself to be more open to the notion that it is not too late for a deferred prosecution agreement for SNC-Lavalin.

He told reporters in Toronto on Thursday, “The law exists. It still exists. My predecessor admitted that the law was still there. And therefore, that possibility does exist.”

The prime minister himself continues to say the decision is up to the attorney general.

Trudeau denies he moved Wilson-Raybould out of her post because she didn’t comply with the PMO’s urgings to step in and cut a deal with SNC-Lavalin to save 9,000 Canadian jobs.

The PMO had been heavily lobbied by SNC-Lavalin, which wanted to persuade Wilson-Raybould to intervene and overrule Kathleen Roussel, the director of public prosecutions.

In the wake of Wilson-Raybould’s resignation last month and the stunning resignation of Treasury Board president Jane Philpott on Monday, in protest of the government’s handling of the SNC-Lavalin matter, the Star canvassed Liberal MPs for their opinions on whether it is ever appropriate for political or electoral considerations to enter into prosecutorial decisions.

In reply, Lametti’s office said earlier on Tuesday that the attorney general in Canada doesn’t work in isolation from cabinet colleagues, and the discussions he has, “which must always reflect the public interest, can also include issues of political importance and they can improve the quality of decision making.”

Lametti spokesperson Celia Canon said, “At the end of the day, in keeping with long-standing principle, it is the attorney general who is the sole judge of those considerations. When it comes to making a decision, the attorney general applies his or her independent ‘judicial mind,’ as opposed to a ‘political mind.’”

Separately, a senior government official told the Star that Trudeau’s senior aides wanted to get an outside legal opinion not to “pressure” Wilson-Raybould but as a way to offer a “different perspective” in the “complex matter” of the SNC-Lavalin prosecution.

As Gerald Butts, Trudeau’s former principal secretary, steps into the spotlight Wednesday to testify at the House of Commons justice committee, he will be asked to explain his and the PMO’s actions in what Wilson-Raybould described as a “consistent and sustained effort to attempt to politically interfere with my role as the attorney general.”

On at least one key point — turning for advice to an “eminent” external legal adviser, such as a retired Supreme Court judge — it seems Wilson-Raybould accurately conveyed the PMO’s desire.

A senior government source, who spoke on condition of anonymity, acknowledged to the Star that an external legal opinion was an option the government actively “considered.”

The official would not say what steps, if any, were taken while Wilson-Raybould was in office to secure an external opinion, from whom it would have been sought, or what its focus would be.

“It was something, as the testimony showed, that was considered to provide different perspectives… by the people who were cited in the testimony,” said the official. “Obviously this was such an important issue and a complex matter, the notion of consulting eminent individuals was considered.”

The federal prosecution service told the Star it neither sought nor received any external legal opinion on the SNC-Lavalin prosecution.

Conservative justice critic Lisa Raitt said in an interview she finds it astonishing that the PMO tried to get Wilson-Raybould to agree several times to an external review of the independent prosecution service’s decision — after Wilson-Raybould had backed Roussel.

Raitt pointed to Wilson-Raybould’s testimony saying the PMO made three pitches for different external opinions: first, to review Roussel’s “decision not to extend an invitation to negotiate” a deal with SNC-Lavalin; then, a possible review of whether the prosecution service had exercised its discretion properly; and finally, a suggestion that the attorney general could intervene and stay proceedings on the basis that “she was awaiting a legal opinion.”

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However, Wilson-Raybould made it clear she rejected the notion of an outside legal opinion almost from the outset, but especially after the company went to court to force the issue.

And that, said former attorney general Peter MacKay, is the main problem with what Butts and PMO chief of staff Katie Telford, among others, set out to persuade her to do.

“It was the purpose in which they wanted to use that Supreme Court (judge’s) opinion, I think, (that) is inappropriate,” said MacKay. “And the timing of this.”

“In principle, getting an outside opinion is not a bad thing,” he said. “What is odd in this circumstance is it wasn’t really a legal opinion they were seeking; they were trying to add more weight to the argument that the attorney general should change her mind on a decision that was taken independent of politics.”

The Conservative government of Stephen Harper sought an external legal opinion from former Supreme Court of Canada justice Ian Binnie, and then had Binnie’s opinion reviewed and approved by another retired top judge, Louise Charron, and constitutional expert Peter Hogg. That was when Harper wanted to appoint a Federal Court judge from Quebec to a Quebec vacancy on the Supreme Court of Canada. Their opinions had no impact whatsoever when the top court rejected Harper’s judicial appointment as unconstitutional.

But MacKay said the PMO’s moves in the SNC-Lavalin case were done expressly with the intent of trying to overturn the independent prosecutor’s decision — and long after Wilson-Raybould had made it clear she wasn’t changing her mind.

The PMO’s efforts with Wilson-Raybould came to a head at a Dec. 18 meeting with Butts, Telford and Wilson-Raybould’s chief of staff, Jessica Prince, when they again presented an external legal review as “a solution” to the impasse, according to Wilson-Raybould.

Wilson-Raybould testified her staffer related that “Katie Telford thinks it gives us cover in the business community and the legal community, and that it would allow the prime minister to say we were doing something. She was like, ‘If Jody is nervous, we would of course line up all kinds of people to write op-eds saying that what she is doing is proper,’” Wilson-Raybould said, reading from a transcript of her debriefing with Prince after the meeting.

“At that time, all of those individuals knew that I was firm on my decision not to interfere with the discretion of the director of public prosecutions, and having conversations about hiring external legal counsels in that environment is entirely inappropriate,” said Wilson-Raybould.

The Star contacted several retired Supreme Court judges, most of whom declined to comment on the affair, but said they were not consulted.

One declined to comment, saying he had “a professional involvement in some of these issues and cannot therefore talk to the press.” He also declined to say “who the client is or what I was asked about — or when.” Lametti’s office denied this former judge was retained for the attorney general’s outside advice.

Another retired justice, Louis LeBel, who was not consulted or involved, said it is difficult at this point to determine whether any line was crossed based on Wilson-Raybould’s testimony alone.

He said it is a “delicate” issue that touches on respect for the function of the attorney general. LeBel said it would be acceptable for a government to seek out an external opinion “if it is a fair request to ‘give us your best opinion on this matter’ … not the opinion that would necessarily accommodate us. Seeking to get an opinion to get cover, it’s quite different.”

The senior government source who spoke to the Star said seeking outside legal advice is “not an abnormal thing for a government to do where there is a complex situation and different perspectives are being solicited.”

As an example, the source pointed to the Justice Department and the prosecution service hiring outside lawyers to do prosecutions in regions where there may not be enough Crown lawyers on staff to handle a workload, and to instances where an “eminent” lawyer or former Supreme Court judge, like Frank Iacobucci, is hired to do legal work on, for example, the TransMountain pipeline project.

Iacobucci was hired to advise the government on consultations with Indigenous communities after the Liberal government had to reboot its efforts following a Federal Court ruling that said previous consultations were inadequate.

As it happens, Iacobucci is also acting as a lawyer for SNC-Lavalin on its application for judicial review of the prosecution director’s refusal to enter negotiations on a deferred prosecution agreement.

Such an agreement would have led to criminal charges being dropped against the company in exchange for a heavy fine and requirements to follow a strict ethical compliance regime, but Wilson-Raybould said she had made it clear to her staff, to the deputy justice minister and to PMO officials that she viewed an external opinion as unnecessary, as she had already done her own “due diligence” and sided with Roussel.

Once the company challenged Roussel’s decision in court, Wilson-Raybould said she told them it was over.

“In my view, this necessarily put to rest any notion that I might speak to or intervene with the (director of public prosecutions), or that external review could take place. The matter was now before the courts and a judge was being asked to look at the DPP’s discretion.”

With files from Alex Boutilier

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