The legality and morality of covert phone-call-recording

Just because there is not a law prohibiting an act does not make that act right or moral. Criminality should not and cannot represent the line of propriety in politics. A defence that no law was broken is usually the last line of defence for the morally bankrupt. So the real question is if Wilson-Raybould’s actions were moral? Was taping the conversation the right thing to do?

Michael Spratt

So it was the tape that broke Justin Trudeau’s back?

 

Speaking before a packed room of supporters, shortly after expelling Jody Wilson-Raybould and Jane Philpott from the Liberal caucus, Justin Trudeau explained that the “trust that previously existed between these two individuals and our team has been broken, whether it’s taping conversations without consent, or repeatedly expressing a lack of confidence in our government and in me personally as leader, it’s become clear that Ms. Wilson-Raybould and Dr. Philpott can no longer remain part of our Liberal team.”

 

Trudeau went on to say that a politician recording conversations is wrong and that Wilson-Raybould recording her conversation with the Clerk of the Privy Council Michael Wernick was “unconscionable”.

 

And then there was a rush by many lawyers to agree that Wilson-Raybould crossed an ethical line and displayed a serious lack of judgement. There were even a threats to report her to the Law Society of Ontario.

 

But was it wrong for Wilson-Raybould to record her conversation with Wernick?

 

Let’s start with the low hanging fruit. The recording was not illegal. There is no law that prohibits taping a conversation that you are a part of.

 

There are special rules for lawyers. The Law Society of Ontario rules prohibit the recording of a conversation between a lawyer and their client or another legal practitioner. But Wernick was not Wilson-Raybould’s client and he is not a lawyer. So best of luck with that, law society complainant.  

 

Just because there is not a law prohibiting an act does not make that act right or moral. Criminality should not and cannot represent the line of propriety in politics. A defence that no law was broken is usually the last line of defence for the morally bankrupt.

 

So the real question is if Wilson-Raybould’s actions were moral? Was taping the conversation the right thing to do?

 

Like most things in life, context matters. Wilson-Raybould herself recognizes that taping Wernick was an “extraordinary” step that in normal circumstances would be inappropriate. This insight shows that she was not acting in a cavalier or precipitous fashion.

 

But more importantly, Wilson-Raybould was indeed facing extraordinary circumstances.

 

Recall that after telling the prime minister that she would not exercise her independent authority and take the unprecedented step of overruling the independent prosecutors in the SNC case Wilson-Raybould was repeatedly pressed to change her mind.

 

It was not only made clear to Wilson-Raybould that the PMO wanted her to reverse her decision but that desire was linked to political considerations.

 

After all, there was an election approaching and according to Trudeau’s senior advisor Mathieu Bouchard the PMO could have the best policies in the world but they needed to get re-elected.

 

The pressure, which the government does not even bother denying anymore, was constant. It came from the prime minister’s office, the finance minister’s office, and from the clerk of the privy council himself – Michael Wernick. They all were delivering a clear message from Justin Trudeau – over and over again.

 

It is in this context, after months of pressure and after she had made the decision that was hers alone to make, that Wilson-Raybould recorded her conversation with Wernick. A call she expected. A conversation that she knew may be important. And communication initiated by Wernick when Wilson-Raybould was away from her office and alone.

 

In this context just how was recording the conversation wrong?

 

In her testimony before the Justice and Human Rights committee Wilson-Raybould detailed the conversation. She said that Wernick told her that he had met with Trudeau and wanted to pass on where the prime minister was at. He said the Trudeau wanted to use every tool to remedy the situation and wanted to know why the remediation agreement was not being used. Wernick told Wilson-Raybould that Trudeau would “find a way to get it done, one way or another… he is in that kind of mood.”

 

Wilson-Raybould told the committee that she again asserted her independence but Wernick, on behalf of the prime minster, pressed on. He said the prime minister was firm and warned of a “collision.”

 

Following Wilson-Raybould testimony the justice committee recalled Wernick to clarify his evidence. He testified, albeit not under oath, that he did not have an independent recollection of the conversation and Wilson-Raybould’s description of the call was “not my recollection of the conversation.”

 

Wilson-Raybould did not release the tape until Wernick conveniently encountered memory problems.

 

So, thank goodness that Wilson-Raybould did take the unprecedented step of making the recording or we still might be debating if this conversation happened at all.

 

Ask any lawyer – we all have a story about a tape, video or private communication that vindicated our client or proved the opposing party to be a liar. In those cases, there are not lawyers complaining about impropriety or threatening to make frivolous and foolish law society complaints. So why now?

 

The Wernick tape provided Trudeau and those who want to carry water on his behalf an easy out. The tape is a convenient way to avoid taking a principled approach to the SNC affair. It is a short-sighted way to move the conversation away from the real issue – the actions of the prime minister and the government.

 

Maybe you’re a blind partisan. Maybe you have a fear that the SNC scandal could lead to a Conservative government. Or maybe you are cool with an erosion of the rule of law. In that case the recording is easy cover for your intellectual dishonesty.

 

The Wernick tape may provide an easy out for those defending the government but that does not change the fact Wilson-Raybould acted perfectly appropriately when she recorded it. 

 

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