Out of the blue, solicitor-client privilege is a meme. The subject excites legal ethics nerds but is not recommended dinner-party conversation. Until now.
If the public weren’t confused enough by this legal principle, a former Attorney-General hires a retired Supreme Court judge as her legal counsel. The former minister declines comment to reporters on the Hill, invoking solicitor-client privilege. Here is a primer for non-lawyers (and lawyers) on the legal principles at play.
Solicitor-client privilege in Canada is a principle of judge-made law that dates back to the English courts of the 1500’s. The principle developed from the sensible public policy idea that parties summoned to the law courts, usually in a criminal matter, should be able to take legal advice without worrying that statements made to the lawyer might later have to be divulged. Similarly, fugitives can speak to a lawyer without fear of their locations being divulged.
In either case, the public interest is served because a lawyer has an obligation to advise the client to follow the law or surrender to law enforcement, as the case may be. Without the privilege, there would be fewer guilty pleas and fewer fugitives turning themselves in. In modern Canadian jurisprudence under the Charter of Rights and Freedoms, the privilege has been recognized as a constitutional norm because it is closely associated with the right to due process.
Contrary to public perception that privilege can be an instrument of perjury, lawyers are not permitted to advance in court a version of the facts where the lawyer knows from a client’s private confession that the the facts are untrue. At most, the lawyer can attack the other side’s case or credibility. If a client is not happy with this, the lawyer must withdraw from representing the client. Privilege can never be used as an instrument of falsehood.
Indeed, solicitor-client privilege is also used by the Crown to limit disclosure to defence counsel. The rationale here is that the lawyers at the prosecutor’s office should be allowed to talk freely about a case without fear that the details of the debate itself will not come out in court. The privilege has a salutary effect in that it acts to prevent prosecutors from overreaching in pursuing charges, and to prevent excessive caution in pursuing lesser offences than can be proved.
Nevertheless, the invocation of privilege is often misconstrued as the hint that one is hiding a dark secret, in the way “Pleading the Fifth” is seen in U.S. culture as the words used by guilty people when summoned to congressional hearings. This is unfortunate. Lawyers provide advice to clients in all kinds of settings, and clients have a basic right to do so without having their tax planning or their family concerns brought to light. By analogy, doctor-patient confidentiality encourages patients to tell their doctors about their problems, however embarrassing. The law protects that right in order to foster the effective treatment of the problem and to prevent the public from untreated diseases.
In short, talking to your lawyer is always a good thing, and never a bad thing. The law has developed this zone of privacy to foster lawyer-client relationships and dialogues.
The Minister’s Dual Role
The complication to the current controversy on Parliament Hill is that we do not know the circumstances of the alleged interaction. The Minister of Justice and the Attorney-General are offices held by the same person. The roles are different, and what appears lost in the public debate is that privilege is only part of the question.
A Minister of Justice is the political head of a government department, pursuant to the Department of Justice Act. In that capacity, the Minister oversees the justice system across Canada, including the prosecution of offences under federal jurisdiction, the appointment of federal judges, and advice to parliament on the constitutionality of proposed legislation.
The Minister is also ex officio the Attorney-General of Canada. In that capacity, the AG is the government’s lawyer in the same way a member of the public might consult a lawyer about income tax planning or the purchase of a new home.
In many situations, these two roles need to be kept separate. This is the reason why the Minister’s role is different from other cabinet members and why it is considered to be non-partisan in matters concerning the administration of justice. The question whether solicitor-client privilege applies to interactions between the Minister and other government officials depends on circumstances, and an invocation of the privilege requires the party to describe the circumstances. Without delving too deeply into the permutations, here are the possible scenarios:
- A government official might require advice from the AG about an ongoing prosecution. Both the question and the advice would be privileged. More importantly, that advice should be kept confidential in order to prevent any appearance of interference by the executive branch of government in an ongoing judicial proceeding. If asked to divulge details of the interaction, even in Question Period, the appropriate response would be to refuse to comment. Solicitor-client privilege can be invoked, but that would not be the reason for declining comment. (See Public Prosecution Deskbook, s. 3.5.1) Thus, by force of logic (and by elimination of the next two scenarios), if privilege applies then the details of the communication should not be made public. This is not because the privilege should be protected, but rather because privilege should be used to protect the judicial process from interference by politicians, on both sides.
- As a minister of the government, the Minister of Justice takes part in cabinet meetings as well as a host of other interactions that have nothing to do with the issues in an ongoing case. Thus, if the topic of a high profile matter comes up in the course of government business, the Minister is free to discuss non-contentious matters such as the current status before the court, the name of a supervising judge, or the expectation that it might be concluded sooner or later. Information about judicial proceedings is a part of the working day of government, and there is nothing inappropriate in the interaction. On the other hand, there is no solicitor-client privilege because there is no lawyer-client relationship.
- The Globe and Mail report of February 7, 2019, reported allegations of pressure applied by the Prime Minister’s Office to the Minister of Justice in her capacity as head of the prosecution service. Members of the government have since denied the report, based on anonymous sources, as false. The seriousness of the allegation stems from the fact that s. 139(2) of the Criminal Code prohibits conduct purporting to “obstruct, pervert or defeat the course of justice.” Solicitor-client privilege would not apply because the communication is not related to the taking of legal advice.
The reason the Globe report has sparked a political controversy is the lack of circumstantial information about the alleged communications. It is entirely possible that the communications fell within the first category above, and that the government’s response has been the correct one. If such were the case, opposition calls for a “waiver of privilege” would also be premature and potentially wrong because to do so could, in divulging the AG’s opinion about an ongoing case, be seen as political interference. It is also possible that the interactions fell within the second category, and that the minister misconstrued the interaction or overreacted to it. But that interaction would not be covered by solicitor-client privilege. Whether the circumstances of the alleged interaction fell into the third category is the question that has been on the minds of Canadians. For all concerned, the sooner it is cleared up the better.
This week, the author was approached by media to explain the ancient concept of solicitor-client privilege to Canadians following the remarks of Prime Minister Trudeau and the former Justice Minister. The author explained to CBC News Network, Canadian Press and to Ottawa’s CFRA 580 Radio why the government’s reluctance to waive the privilege may turn out to be justified.