National Post (National Edition)
‘SHE’S IN A HARD PLACE’
Hours before Jody Wilson-raybould told him she was resigning from cabinet, Prime Minister Justin Trudeau spoke to the reasons for her silence. “I respect her view that, due to privilege, she can’t comment or add on matters recently before the media,” he told reporters. “I also highlight that we’re bound by cabinet confidentiality. In our system of governance, her presence in cabinet should speak for itself.”
Now no longer in cabinet, one wonders what that says about the situation. To cynics, though, it may seem a cop-out to prevent a public airing of Wilson-raybould’s side on alarming allegations, recently revealed in the Globe and Mail, that she was pressured by the Prime Minister’s Office to help SNCLavalin, a Montreal-based engineering firm, avoid criminal prosecution. Those reasons, however, shouldn’t so easily be dismissed.
CABINET CONFIDENCES
Cabinet confidence exists so that ministers can have, as a group or among themselves, rigorous debate without being worried about public perception. That confidence is protected for 20 years, and wrongful disclosure of the protected communications or documents can lead to criminal charges.
Leaks of information considered “cabinet confidences” are at the heart of the ongoing court case against suspended Vice-admiral Mark Norman. Documents recently tabled in Parliament suggest that since Trudeau came into power, the Privy Council Office, which supports cabinet, had only identified leaks related to the Norman case. Still, it is not unheard of for other cabinet decisions to find their way into journalists’ hands before they are publicly announced.
“It’s the highest level of security in our British form of government,” Ottawa lawyer Michel Drapeau said of cabinet confidences.
When Wilson-raybould was sworn in to Parliament, she had to swear she would keep cabinet matters confidential, he said, and the only person who can really release her from that duty is the prime minister. “Every discussion she has with the prime minister or cabinet colleagues, or communication with them, at cabinet or outside of cabinet, and so on, all of that is cabinet confidences.”
Andrew Flavelle Martin, a law professor at the University of British Columbia, said cabinet confidence never stops applying, and neither does solicitor-client privilege. “They never end, and it doesn’t matter if she resigned or not,” he said.
Martin wrote a paper in 2015 that speculated about possible reasons for an attorney-general to resign on principle, and whether in certain cases — for example, “attempting to interfere with the attorney-general’s prosecutorial discretion” — the situation was serious enough to warrant breaking solicitor-client privilege and telling the public the reasons for the resignation.
If the allegations are true, “she should have resigned right away as attorney-general,” Martin said. Even if she didn’t publicly declare why, “lawyers and people in the media and politics would say, wow, she resigned as A-G. Something serious is going on.”
SOLICITOR-CLIENT PRIVILEGE
There are similar rules expected of lawyers — all lawyers, not only those in public office. As a lawyer by profes- sion, and as the AttorneyGeneral at the time, her concern over what she can say is a legitimate one, law specialists say.
Solicitor-client privilege applies to communications between a lawyer and her client for the purpose of legal advice. It’s a strong seal of secrecy.
As attorney-general and minister of justice, WilsonRaybould was the government’s top legal officer, making her responsible for the conduct of prosecutions on behalf of the government, but also a top legal adviser to the government. From the perspective she was a lawyer advising the government, it will restrict what she can say.
“The whole reason this is an issue is because of the A-G’S non-partisan role in prosecutorial independence,” said Martin. The problem is “the attorney-general hat, as people call it, is supposed to be the non-partisan, apolitical one.
“That gets hard to divide that in practice between the partisan role of the minister of justice.”
But when it comes to legal advice, there is not much to debate, he said: “The legal advice she’s probably getting is fairly straightforward: you’re bound by solicitorclient privilege. That’s it.”
Drapeau agreed there is little wiggle room on legal discussions.
“If she’s discussing with government lawyers and giving her advice and telling them what to do or not to do, it’d be covered by client-solicitor privilege. So the area that leaves her open to be able to do something, geez, it’s exceedingly small.
“She’s held captive to the oath of office that she’s made, first. Second, as a member of the bar, she has to be seen as respecting the law, and on the issue of client-solicitor privilege, she cannot breach that even if that were parallel and outside the cabinet confidences. She’s in a hard place, in a very hard place.”
Where things may get a bit muddied is over questions of who her client is and the nature of any specific discussions.
A 1999 Supreme Court of Canada decision, known as R. v. Campbell, which dealt with the RCMP consulting with government lawyers about the legality of an operation, ruled that legal advice from public service lawyers is privileged but policy advice and other types of advice are not.
Where did any PMO discussions with Wilson-raybould on SNC fall in that spectrum? There is no public information to answer that.
In a paper on modern challenges to solicitor-client privilege by Adam Dodek, dean of the Common Law Section of the University of Ottawa’s Faculty of Law, for the Canadian Bar Association in 2011, Dodek envisioned such a conundrum.
He wrote that the privilege paradigm was established to be between a lawyer and a human client.
“Public bodies — especially provincial and federal governments — have become so big and diffuse that to speak of them in terms of being a single entity is prob- lematic when considering privilege issues,” he wrote.
“To further complicate matters, the Prime Minister’s Office or the Premier’s Office may become involved and communicate instructions on a file for which, strictly speaking, the Prime Minister or the Premier is not the public official charged with the legal authority to make that decision. In many circumstances, it becomes difficult to designate an official as ‘the client’ with any exactitude.”
When asked, Dodek declined to discuss the issue.
PRESSURE
Allegations that WilsonRaybould was pressured by the PMO on the SNCLavalin file place a focus on what constitutes pressure. It seems to be something that Trudeau is aware of.
When denying the published allegations, he told reporters neither he nor his staff “directed” WilsonRaybould to intervene in the case. He didn’t address putting her under pressure. It’s an important distinction, legal scholars said.
“This is a situation where what actually happened is really important, and the details of what happened are really important,” Martin said, but are unknown.
“You can imagine them saying to her, ‘ Look, the economic impact and the job loss from what would happen to this company is really serious and we think that should be the most important consideration …’” he said.
It would be “over the line,” however, to direct her or order her or threaten her with consequences if she didn’t comply, he said.
“We don’t have much to go on as to where exactly is the line, what exactly is over the line, what exactly is OK,” Martin said.
Drapeau said that policy pressure must be a constant for federal ministers. Trudeau can suggest, encourage and argue in favour of a certain policy outcome and it would probably be “pretty normal.”
“All of that could be done but until he says in writing or verbally, but it will probably be in writing, ‘I’m directing you to do this,’ then it’s an order and the choice is either to obey it or to resign.”