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Canadian News Feb 12, 2019 12:50 PM EST

Does Jody Wilson-Raybould's solicitor-client privilege stand up to scrutiny?

It is settled law in Canada that once a client has revealed communications he has had with his lawyer, solicitor-client privilege is implied to have been waived for the specific communications referred to. The reason for this implied waiver is obvious.

Does Jody Wilson-Raybould's solicitor-client privilege stand up to scrutiny?
Grant Brown Montreal, QC

This article was published more than 1 year ago, information might not be up to date.

Last week, the Globe & Mail published a story alleging that the Prime Minister’s Office (PMO) orchestrated pressure on the former Attorney General (AG) Jody Wilson-Raybould, seeking to get her to direct the federal prosecutors handing a criminal case against SNC-Lavalin to settle the matter with a “deferred prosecution agreement.”

Such a plea bargain would save the company a criminal conviction, which would have precluded them from bidding on large government infrastructure contracts for 10 years.

Reports are that Wilson-Raybould resisted that pressure with some force, and was rewarded for her principles by being shunted out of the AG portfolio.

Her parting thoughts on her stint as Justice Minister and AG, published by her on social media, are now the subject of much reading between the lines. Her shot across the bow might have gone unnoticed or misunderstood, the dots might have remained unconnected, had it not been for “sources” spelling it out to reporter Robert Fife, presumably coming forward out of concern that the message had not been received by the PMO.

By Fife’s account, Wilson-Raybould felt that the PMO was interfering with the independence of Crown prosecutors, all the while assuring Canadians and the world that Canada is a “rule-of-law country” which does not mix politics with court proceedings.

This is a serious allegation, indeed. The PM and the current AG are maintaining – ad nauseam – a carefully crafted denial of political interference.

Whether “undue influence” was exerted is bound to be a matter of judgment, involving variables such as the types of considerations that were pressed upon Wilson-Raybould (legal vs. economic and political), how vigorously they were pressed (how many PMO staffers and Cabinet Ministers were orchestrated to exert pressure, over how long a period of time), and whether any consequences for non-compliance might have been hinted at.

Canadians should not be satisfied until these issues are fully explored. The person who could clear matters up, Wilson-Raybould, has invoked solicitor-client privilege as an excuse not to get involved.

Of course, the PM could waive that privilege and allow her to speak and answer questions raised by the Globe & Mail story; but so far the Liberals have decided that their best political strategy is to stonewall.

It is an interesting question that deserves much investigation and exposure as to why the Liberal government would be so eager to protect SNC-Lavalin from the natural consequences of its alleged corruption. (Hint: the culture of insider dealings exposed by the Charbonneau Commission is alive and well in Quebec.)

That issue is beyond the scope of the present essay. Here, I only wish to examine Wilson-Raybould’s claim of privilege, which is the legal cover for Liberal stonewalling.

Whether or not solicitor-client privilege covers communications between the AG and other political actors is unsettled in Canadian law. There is no case law directly on point. It is therefore necessary to examine the case starting from first principles.

Two key conditions must be met for a claim of solicitor-client privilege to arise. First, the communications purported to be privileged must be between a practicing lawyer and her client. (Communications within Cabinet are protected by other confidentiality provisions. Cabinet confidentiality has not been invoked by Wilson-Raybould, because the communications of primary interest are between her and PMO staffers presumed to be acting with the authority of the PM.)

This condition has been relaxed slightly, to cover communications between law students and the clients they represent while working for legal aid clinics. Yet it is a condition that the legal profession has been very protective of limiting, since they see the solicitor-client relationship as deserving of very special and strong protections.

Wilson-Raybould claims that, as AG she was the “government’s lawyer.” In fact, the AG need not even be a lawyer. Marion Boyd was AG in Bob Rae’s cabinet in Ontario, and Shirley Bond was AG in Christy Clark’s cabinet in B.C.; neither of them were lawyers.

If these AGs had been fulfilling the role of “government’s lawyer,” they would have been practicing law in contravention of the legal profession regulations in their provinces.

Shirley Bond’s appointment was actually challenged on the ground that she was not a lawyer, but the challenge was dismissed by the Law Society of B.C. (Wilson-Raybould is a lawyer, but she is a member of the B.C. bar, not the Ontario bar, and therefore would not have been licensed to give legal advice to the government in Ottawa.)

Wilson-Raybould was no more the “government’s lawyer” than the environment minister is the government’s climatologist, or the finance minister is the government’s banker.

A cabinet minister is a senior middle-manager in the government, that’s all. The AG’s job is not to give legal advice to the government; her job is to convey legal advice from the Justice Department to cabinet, to convey cabinet decisions about the legislative agenda to lawyers in the Justice Department who are tasked with drafting bills, to manage the stable of federal prosecutors, and occasionally to make political, quasi-legal decisions (such as on extraditions, pardons, and settlements).

The only solicitor-client relationship involving the AG has her as the client and the DPP as the solicitor. Communications between the AG and DPP are privileged, but that privilege does not extend to any collateral discussions the AG might have with other political actors.

Perhaps the simplest way to demonstrate that the AG is not the government’s lawyer is to note that in a solicitor-client relationship, the client calls the shots and the lawyer faithfully executes them.

The client decides on what objectives he wishes to achieve, what strategies to employ to achieve that result, and whether or not to settle a case and on what terms.

The lawyer’s job is to advise on the prospects of success, to point out the advantages and pitfalls of various strategies, and to draft legal documents in such a way as to protect the interests and further the objectives of the client. But in the case at issue, the PM is statute-barred from giving the AG instructions on the matter; the AG must act independently of political influence when giving direction to the DPP.

The PM, and cabinet, are prohibited from being the AG’s client. In short, Wilson-Raybould can't have it both ways: she cannot claim solicitor-client privilege for her communications with the PMO at the same time as claiming that her role as AG is independent of influence from her "client."

The second condition required for a claim of solicitor-client privilege to arise is that the communications claimed to be privileged must be in the course of rendering legal services to the client.

A lawyer’s communications with friends, colleagues, bosses, or business associates are not privileged unless they have been retained specifically to give legal advice, and only to the extent of that legal advice.

This raises the thorny issue of what "legal advice" the AG might be thought to render to the PM, or to cabinet – and how to distinguish “legal advice” from political considerations. For example, if the AG is trying to decide whether to pardon a class of people, such as "battered women" who have been convicted of murdering their husbands, are communications she receives from other political actors privileged or not?

The view that the AG provides legal advice to the government would mean the AG “wears two hats”: she is both a political actor, and a lawyer, at the same time. But lawyers are supposed to avoid conflicts of interest, to avoid serving two masters with different interests.

It would be totally contrary to the intent of solicitor-client privilege were it used to shield impropriety in a collateral role. Surely the AG should be a compellable witness on political matters; thus it is fair game to ask Wilson-Raybould what political and economic considerations she was asked to take into consideration when making quasi-legal decisions in her role as AG.

It is important to settle what privileges the AG might be able to claim for future guidance, and this matter should be pursued in the public interest, not merely for the sake of what it might reveal in the present case. But Wilson-Raybould’s claim of solicitor-client privilege is now moot in light of recent public comments made by the PM.

Yesterday, he said that he had spoken with her twice, and “She confirmed for me a conversation we had this Fall, where I told her directly that any decisions on matters involving the Director of Public Prosecutions were hers alone...”

It is settled law in Canada that once a client has revealed communications he has had with his lawyer, solicitor-client privilege is implied to have been waived for the specific communications referred to. The reason for this implied waiver is obvious.

Clients will sometimes attempt to bolster their case by saying that their lawyer, or more commonly their ex-lawyer, told them something. If that claim were protected by privilege, and therefore could not be tested, it would not only impair the pursuit of truth, it would pervert it. Imagine the following conversation taking place:

PM: Our electoral success in Quebec depends upon SNCL surviving. So I am ordering you to direct the DPP to settle with SNCL in such a way as to spare them a criminal conviction!

AG: But sir, the law prohibits you from making any such order. The law requires me to make my decisions free of any political or economic considerations.

PM: Oh, um, ah, well, um, ah, um, but nobody needs to know….

AG: I will know! And if you insist that I direct the DPP to take this particular course, I will have to resign – and I might have to explain why I left my post.

PM: Oh, um, um, ah, OK. Um, ah, if that’s the way you want to roll, then fine. From now on, any decisions on matters involving the DPP are yours alone.

If that were the nature of the conversations, then it would be quite misleading to take the final snippet of conversation at face value, and to protect the rest of the conversation from examination.

It must be open to test the soundness of the PM’s claims by asking the AG for all of the context in which that conversation took place.

A judge in a court of law would certainly compel the ex-AG to testify, and to answer questions about those conversations. It is now time for the politicians in Ottawa to stop playing games and get to the bottom of this controversy.

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