Question of solicitor-client privilege comes to fore in SNC-Lavalin controversy
Jim Bronskill, The Canadian Press
Published Tuesday, February 12, 2019 5:05PM EST
Last Updated Wednesday, February 13, 2019 9:25AM EST
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 reported 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 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."
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."