Howard Levitt: Trudeau was asked the wrong questions at his testimony. Here’s what I would have asked the Prime Minister

There is a commonly held belief that one must never, in cross-examination, ask a question one does not already know the answer to.

That commonplace wisdom is misplaced.

You can also ask questions when you don’t care what the answer is because any possible answer will be incriminating. This is true not only in the courtroom but also in politics and sometimes in the workplace.

This style of ‘closed’ questioning is particularly important as one aspect of investigations into misconduct in the workplace, whether informal or as a full-blown investigation.

Trudeau could have been publicly annihilated if the right questions had been asked during his testimony last week before the House of Commons finance committee about the Liberal government’s aborted deal with WE Charity to run a student-volunteer program. And it would not have mattered a whit how he responded. Questions which, given his position, he should have known the answers to. While the truth would have been incriminating, almost equally would have been the sight of him not knowing the answers.

The questions receiving the most attention revolved around whether he recalled the precise amount of monies his family in total had been paid by the WE Charity, which is run by brothers Craig and Marc Kielburger. Most viewers shrugged, thinking, ‘how could he possibly remember that’?

But what if, instead, he had been asked questions he should have been able to answer or had no good answers for.

A sample:

If you knew, as you admitted today, that the appearance of your conflict might be raised, why did you vote in favour of the project without even declaring that conflict?

When you voted in favour of giving WE $912 million dollars of taxpayers’ money, did you ask whether it had ever run a similar project? (It had not).

So you voted to award this project without determining whether WE had any relevant experience?

Did you know that its chairperson had recently resigned, and did you ever inquire why she did so?

Did you know that the chairperson resigned because, according to her, she was “unable to fulfill her governance duties and was not permitted by Kielburgers to perform her job”?

Did you know that the Kielburgers asked her to resign only when she began questioning WE’s financial stability?

Did you know that virtually WE’s entire board had turned over in the previous several months? Did you ask why they left?

Why would you not have made a point of finding this out before awarding such a massive project?

Did you know that WE was in breach of its bank covenants, and did you make even the slightest inquiry into its financial position?

Did you ever ask how WE’s money was being spent?

Were you aware that a considerable amount of its money was invested in Toronto real estate?

Did you ask to see WE’s books or have them reviewed by auditors?

Did you know that the organization you were entrusting $912 million dollars to had significant liquidity and financial stability problems?

How lavishly was WE treating your mother, such that her expenses averaged $6,000 for each speech that she gave?

What hotels was she put up at, and what were her daily meal bills? ($6,000 buys a lot of glasses of orange juice.)

It simply would not matter what answers Trudeau provided to any of these questions. They themselves would have proved him, at best, incompetent and oblivious to his responsibilities to Canadians.

Knowing what questions to ask and how to ask them is not only important at trials or Parliamentary inquiries, but also in employment matters such as reference checking, job interviews, performance evaluations, and interviews regarding possible misconduct or even full-blown workplace investigations.

Preparing the right questions is essential to managing most employment relationships.

Take reference-checking. Most employers are loathe to provide negative references and, if asked a general question as to what an employee was like, will find only positive things to say. That’s why most reference checking provides little relevant information.

But if one asks closed questions, useful answers can be obtained. For example, was employee X ever late? How often was he late? Did she ever have conflicts with her superior or with other employees? Was she ever disciplined? For what?

Closed questions such as these are impossible to manoeuvre around. You will either get straight unvarnished goods or the referee will decline to answer, which is just as telling.

The tone of your questions will differ between say, an employment interview, when you are attempting to attract a candidate, and an investigation for misconduct.

But even employment interviews should consist of many closed questions to ensure that well prepared interviewees are unable to avoid providing the information sought. And lying during an employment interview on a material matter is cause for discharge even if the lie is discovered years later.

Investigations for misconduct must also be accompanied by a series of closed questions, like the ones above. Otherwise, as I have seen too many times, employers believe they have sufficient information but the answers provided are not sufficiently specific, no clear admission was made and the answers could be interpreted in at least two ways, one of which is exculpatory.

Another general belief is that an effective cross-examination requires considerable preparation. That urban legend is true. It’s easy to ask someone to explain what occurred. It’s considerably more difficult to prepare questions, which will unambiguously determine that truth and leave no space for wiggle room.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.