Lawyers Financial
Civil Litigation

Question of solicitor-client privilege comes to fore in SNC Lavalin controversy

Canadian Press THE CANADIAN PRESS

OTTAWA — The time-honoured tenet of solicitor-client privilege — usually discussed in courtrooms and law-school textbooks — has become a central point of debate in a political controversy over whether the prime minister's aides put undue pressure on a former attorney general.

Jody Wilson-Raybould, who resigned from the Liberal cabinet Tuesday, has cited the privilege as the reason she cannot speak publicly about discussions with the prime minister's inner circle on the fate of criminal charges against construction and engineering firm SNC-Lavalin.

The Globe and Mail newspaper alleged last week that Justin Trudeau's staff leaned on Wilson-Raybould in her role as attorney general to help avoid a prosecution of SNC-Lavalin on bribery and fraud charges.

The newspaper says Wilson-Raybould was shuffled to the veterans affairs portfolio in January when she allegedly refused to direct the public prosecutor to forge a remediation deal with the company that would effectively bypass criminal charges.

The Liberal government maintains that while discussions on the matter took place with Wilson-Raybould, she wasn't pressured or told to issue a directive to the prosecutor.

In an open letter Tuesday, Wilson-Raybould said she has retained a lawyer, former Supreme Court justice Thomas Cromwell, to provide advice on the ``topics that I am legally permitted to discuss in this matter.''

Trudeau also said this week his office is seeking legal advice on the particulars of solicitor-client privilege from David Lametti, who succeeded Wilson-Raybould as attorney general.

Generally, solicitor-client privilege requires a lawyer to keep confidential any communications with a client relating to legal services.

There are limited and narrow exceptions to the principle. A lawyer could divulge information about dealings with a client in the event of a clear and imminent threat to public safety, or in a case where the innocence of an accused person hangs in the balance.

Since solicitor-client privilege is a right that belongs to the lawyer's client, the client may consent to confidential information being disclosed.

In the federal cabinet, the justice minister also serves as attorney general, the chief law officer of the Crown.

According to the government, the attorney general provides legal services to the government and its departments and agencies with an eye to protecting the overall interests of the administration. ``These services include the provision of legal advice, the conduct of litigation and the drafting of legislation and regulations.''

In an interview with AdvocateDaily.com, Alberta civil litigator Leighton Grey says the essence of solicitor-client privilege is the sanctity of knowledge that passes between a lawyer and their client, and that such privilege belongs to the client, and can be waived by their words or actions.

“However, the lawyer is under a positive duty not to reveal any information or advice that flows between them and their client, unless this privilege is waived,” says Grey, a senior partner with Grey Wowk Spencer LLP. “A lawyer cannot be compelled to violate this privilege, even under subpoena."

He says the best explanation of solicitor-client privilege comes from a naval metaphor written by Lord Denning of the British House of Lords, which states, “Think of the lawyer like a ship at sea, wandering vast expanses of endless ocean. Its cargo is all of the documents, conversations, advice, admissions, etc. that have passed between the client and the lawyer. That ship can never come to port unless and until it is summoned by the client, who will choose the time, the place, the season, and most importantly, which cargo shall be off-loaded, and what will remain in the ship’s hold.”

Grey says the federal government regards the Justice ministry and its lawyers as its exclusive legal counsel, but that the privilege asserted by the prime minister, in this case, is dubious for a couple of reasons.

“First, the former justice minister was not, at any material time, a lawyer employed by the Government of Canada to provide legal services and advice to the Prime Minister’s Office,” he says. “The prime minister already has a stable of quite capable lawyers who fulfil that role.

"Secondly, although technically a lawyer, she spent very little time in the actual practice of law, and most likely does not possess the legal experience or expertise to be relied upon as a legal advisor to the prime minister," Grey says.

"In reality, she was at all relevant times an elected MP appointed to the rank of high public office as a cabinet minister," says Grey. "She was first and foremost a politician, not a lawyer. As such, she was the public face of the DOJ, not its senior legal counsel."

The former justice minister’s resignation from cabinet signals that she is a highly ethical person who felt strongly that her principles would be compromised or even abandoned by remaining part of the government, Grey says.

“As for whether she should or could reveal the substance of her conversations with the prime minister on this issue, that would depend largely upon the substance of those discussions and their context,” he says.

While it is not entirely clear what sort of discussions took place between Wilson-Raybould and prime ministerial officials on the SNC-Lavalin matter, it appears she feels bound by solicitor-client privilege by virtue of the advice she provided as attorney general.

A reminder of the sacrosanct nature of solicitor-client privilege to the legal profession came Monday when Ray Adlington, president of the Canadian Bar Association, introduced Lametti as he addressed a gathering of lawyers.

``We've all read the news reports. But no one here is in a position to know everything that has happened behind closed doors in the last number of months,'' Adlington said.

``What all CBA members know is the importance of having lawyers in the room to advise when important decisions are being made. Solicitor-client privilege and prosecutorial independence are two of the cornerstones of the Canadian criminal justice system. We must remain vigilant that they remain so.''

© 2019 The Canadian Press

— with files from AdvocateDaily.com

To Read More Leighton Grey Posts Click Here
Lawyer Directory
Haywood Hunt & AssociatesToronto Lawyers Association (post to 6.30.19)MKD International (post until Sept. 30/19)Feldstein Family Law (post until May 31/19)Greystones Health Kotak Personal Injury LawyersSRH Litigation (post until May 31/19)Anton Katz (post until June 30/19)