Solicitor-client privilege is at the heart of questions on SNC-Lavalin affair. Here’s how it works
Anyone following the political turmoil surrounding alleged interference in the SNC-Lavalin affair will have heard the phrase “solicitor-client privilege” come up over recent days.
The issue came up repeatedly at a high-profile meeting of the House of Commons justice committee on Wednesday, as it has through the past week.
At the meeting, opposition MPs called on Liberal members to support a motion urging Prime Minister Justin Trudeau to waive solicitor-client privilege so that former attorney general Jody Wilson-Raybould can address questions about the SNC-Lavalin affair.
As a reminder, the ongoing SNC-Lavalin affair concerns allegations published by the Globe and Mail that officials in the Prime Minister’s Office pressured Wilson-Raybould to intervene in a decision by the public prosecutor to deny what’s known as a “remediation agreement,” or “deferred prosecution agreement,” to SNC-Lavalin.
The Montreal engineering giant is facing charges of corruption and fraud that, if convicted, would bar it from bidding on lucrative federal contracts for 10 years and potentially impact thousands of Canadian jobs.
Verifying those allegations, though, has proved challenging. Trudeau calls them “false,” but his refusal to waive solicitor-client privilege means Wilson-Raybould, as the government’s former lawyer, cannot speak about the matter.
But what exactly does the term mean and how does it fit into the matter at hand?
WATCH BELOW: Liberals argue Wilson-Raybould can speak to public when she needs to
According to the Canadian Bar Association, solicitor-client privilege “applies to communications between you and your client for the purpose of legal advice.”
Effectively, it means lawyers are barred from disclosing the legal advice they give clients except in exceptional circumstances, such as when public safety is at risk.
Wilson-Raybould was the government’s lawyer in her former position of attorney general, which she has said means the same rule applies to her when it comes to speaking publicly about whether there were attempts to pressure her to intervene in the case.
Jennifer Quaid, an assistant professor of law at the University of Ottawa, says that restraint by Wilson-Raybould does seem “reasonable.”
However, Wilson-Raybould has hired a former Supreme Court justice to advise her on whether there is anything she can say, which had prompted speculation that she wants to give her side of the story and is looking for a way to do so.
Quaid said that until a decision is made about Wilson-Raybould’s responsibilities and whatever discussions may have happened between her and the government on the issue, a cautious approach is best.
“I think if I was her, I would also be inclined to say less rather than more or to say nothing until it’s clear what, exactly, she is bound to keep quiet about and what she can talk about,” Quaid said.
WATCH BELOW: Trudeau used his power of privilege to silence Jody Wilson-Raybould, Poilievre says
At the committee on Wednesday, Conservative MP Pierre Poilievre accused Trudeau of “silencing” Wilson-Raybould by not waiving the privilege.
As a result, he said, only his side of the story is being told. Trudeau, he argued, has used the privilege to cast doubts about Wilson-Raybould’s performance at work by suggesting she should have expressed any concerns she may have had to him directly.
“He was attacking someone who was legally incapable of defending herself,” Poilievre said.
“You would think that a man who attacks someone in public would want to allow that person to respond, but so far he has used his power — a privilege — to silence her.”
WATCH BELOW: Trudeau looking into solicitor-client privilege after Wilson-Raybould’s resignation
Earlier this week, Trudeau told reporters he had asked Attorney General David Lametti, who replaced Wilson-Raybould in a cabinet shuffle last month, to study potential implications of waiving solicitor-client privilege and provide him with recommendations.
There is no timeline for that.
Lametti, however, has cautioned that doing so could come with significant consequences given two ongoing court cases involving SNC-Lavalin: their criminal prosecution and their appeal at Federal Court of the decision not to offer them a remediation deal.
WATCH BELOW: David Lametti discusses importance of AG role amid SNC-Lavalin controversy
Lametti is also expected to testify before the justice committee in the coming weeks on the matter.
Liberal MPs presented and passed a motion of their own on Wednesday to invite him as well as two other officials to answer questions.
A meeting to determine whether any other witnesses should be called is scheduled for Feb. 19.
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