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Politics

Cabinet confidentiality in the SNC-Lavalin affair — what happens if it’s broken?

WATCH: Trudeau says it’s up to Wilson-Raybould, Philpott whether to speak in House

Opposition MPs are calling for the Liberals to waive cabinet confidentiality rules to allow Jody Wilson-Raybould to tell her full version of events regarding the SNC-Lavalin scandal that’s rocked Parliament Hill these past two months.

Wilson-Raybould, along with staff from the Prime Minister’s Office, testified on her conversations regarding the criminal prosecution of Montreal-based engineering firm SNC-Lavalin, which has been charged with corruption. The former justice minister alleged that there was political interference from the PMO, but staffers denied the allegations.

READ MORE: Opposition MPs briefly storm out of committee meeting as Liberals end SNC-Lavalin investigation

Wilson-Raybould was allowed to testify because Prime Minister Justin Trudeau had waived both solicitor-client privilege and cabinet confidences specifically for the justice committee testimony.

But the waiver for Wilson-Raybould only allowed her to speak about what happened while she was attorney general. Since she was moved to the veterans affairs portfolio on Jan. 14, Wilson-Raybould was not allowed to speak about any discussions on the matter after she was shuffled off the justice file.

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WATCH: Latest on SNC-Lavalin

But Wilson-Raybould, who has since resigned from cabinet, has stated that she has more to say on the matter, and Conservative and NDP MPs have called for Trudeau to again waive cabinet confidence so she can speak freely.

Additionally, former Treasury Board president Jane Philpott, who also resigned from cabinet over the affair, said in an interview this week that there’s “much more” to the story that Canadians must hear.

In a letter Friday, Wilson-Raybould said she would be supplementing her previous testimony with a written submission to the justice committee — one that was still “within the confines of the waiver of cabinet confidence and solicitor-client privilege.”

READ MORE: Minister Gould speaks out Wilson-Raybould, Philpott push to share more on SNC-Lavalin scandal

What is cabinet confidentiality?

According to the government website, cabinet members “must be able to express their views freely during the discussions held in cabinet.

“To allow the exchange of views to be disclosed publicly would result in the erosion of the collective responsibility of ministers. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality.”

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Experts say the confidentiality rule is tied in with cabinet solidarity, meaning a lack of faith in one minister amounts to a lack of faith in all of them.

“In other words, Parliament might lose faith in the cabinet if it knew that there was substantial disagreement over its plans and/or priorities,” Greg Flynn, assistant professor of political science at McMaster University, explained.

“As a result, cabinet is permitted to discuss and debate its plans and priorities behind the veil of secrecy.”

Cabinet confidence is subject to a statute of limitations — members are allowed to speak freely 20 years after the fact.

WATCH: Next steps for the opposition with the SNC-Lavalin affair

Next steps for the opposition with the SNC-Lavalin affair
Next steps for the opposition with the SNC-Lavalin affair

Can ministers break confidentiality, and what is the punishment?

Prof. Emmett Macfarlane of the University of Waterloo explains that while in the House of Commons or other House committee meetings, there is something called of parliamentary privilege, which allows MPs to be free to speak and be protected from any legal repercussions.

“Probably the worst consequence they would face could conceivably be being kicked out of caucus of the Liberal caucus,” MacFarland said.

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If ministers or former ministers spoke outside of Parliament, there would be a discussion about whether that person would have violated their oath of the Privy Council.

But he cautioned that it would be rare for anyone to do that.

READ MORE: Charges against SNC-Lavalin explained — and how the PMO allegedly got involved

“There are issues of personal ethics here that would dictate whether or not they would actually want to break those confidences rather than have the prime minister lift them,” he explained.

Another way ministers can break cabinet confidentiality is if they are ordered to by a judge.

“It would … be up to a court to decide if the privilege applied and whether the public interest outweighed the interests of the other parties in the litigation,” Flynn explained.

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That could possibly come into play during the trial of Vice-Admiral Mark Norman, who stands accused of leaking cabinet secrets.

“For example, if cabinet discussed anything in relation to the alleged offences against Vice-Admiral Norman then it would be subject to the confidence principle,” Flynn said.

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“However, the judge in the proceedings could order the information disclosed because the interests of Norman (to make a full answer and defence to the criminal charges against him) outweigh the public interest in keeping the information confidential.”

Added layer of solicitor-client privilege

Also complicating the SNC-Lavalin issue is the fact that Wilson-Raybould was Canada’s attorney general for the case, which means she’s also subject to attorney-client privilege.

If a lawyer breaks privilege, she could face expulsion from the bar, MacFarland explained.

READ MORE: Reality check: Does solicitor-client privilege protect Justin Trudeau in SNC-Lavalin affair?

“She would effectively lose her licence to practise law so there could be very real consequences,” he said.

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