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What constitutes privilege when you're the attorney general?

|Written By Aidan Macnab
What constitutes privilege when you're the attorney general?
Solicitor-client privilege protects legal advice and not instructions on who or who not to prosecute, says Gavin MacKenzie of MacKenzie Barristers.

Not every communication made between a lawyer and their client is subject to solicitor-client privilege — only legal advice is covered, and when it comes to the alleged pressure the Prime Minister’s Office may have put on former justice minister Jody Wilson-Raybould to not prosecute SNC-Lavalin, that would not necessarily be privileged, ethics lawyers say.

Wilson-Raybould was the chief law officer of the Crown, the government’s lawyer and if the government is seeking legal advice, like a lawyer helping a client with an expectation of confidentiality, those conversations are between them. But the AG has more than one role and in her role in deciding whether to prosecute offenders, the government is not her client and communications with officials about that are not subject to solicitor-client privilege, says Gavin MacKenzie of MacKenzie Barristers and author of Lawyers and Ethics: Professional Responsibility and Discipline.

“In some situations, clients and lawyers communicate with each other for multiple purposes, so the exercise of determining whether specific communications are privileged may require a meticulous review of the communications. Ms. Wilson-Raybould was wise to seek the advice of esteemed counsel to assist in this process,” MacKenzie told Legal Feeds via email.

On Feb. 7, the Globe and Mail reported that sources had told them the former federal justice minister had been pressured by the Prime Minister’s Office not to prosecute the Quebec-based global engineering firm SNC-Lavalin. The firm has lucrative government contracts and employs thousands of Canadians.

Prior to the Globe story, the government had moved Wilson-Raybould out of justice and into the role of veteran’s affairs minister. But on Feb. 12, she delivered her letter of resignation from that post.

SNC-Lavalin is accused of bribing Libyan officials under the since-toppled regime of Muammar Gaddafi with $48 million to earn government contracts.

Last October, the director of public prosecutions, Kathleen Roussel, decided SNC-Lavalin should not be allowed a remediation agreement, Canada’s version of the deferred prosecution agreements. The company argued its prosecution would unfairly impact shareholders, workers and harm the Canadian economy. SNCLavalin has lobbied extensively to get the Canadian government to implement deferred prosecution agreements.

The matter may now potentially be in the hands of the police, says Lee Akazaki, a partner at Gilbertson Davis LLP in Toronto, because if there is evidence of obstruction of justice, they have a duty to investigate.

“I think that given the nature of the controversy, the RCMP should be investigating at least on a preliminary basis,” he says.

The attorney general’s role with respect to the government                                                                                                                                                                                                                                                                                                                                                                is similar to that between general counsel and their company, as the general counsel has a duty to see to it the board does not steer the company into illegal territory, and if advice from the GC is disregarded, they have an ethical obligation to step down, Akazaki says.

But as little is known at this point, everything depends on what actually took place between the Prime Minster’s Office and the nature of the communications determines what is protected under privilege, Akazaki says.

If the management of a company were to ask their general counsel if a particular course of action were lawful, that communication would fall under solicitor-client privilege, and if the GC were to respond — in the form of legal advice — that it was not lawful, that response would also be protected under solicitor-client privilege. But if the request was for the GC to do something and the response was simply no, the response would not be covered.

If there was an attempt to influence the prosecution of SNC-Lavalin and Wilson-Raybould shut it down, saying what was happening could constitute obstruction of justice, “that moment where that discussion takes place is privileged,” he says.

Also worth considering is the political dynamics at play, Akazaki says. Did Trudeau’s people simply inquire as to the new remediation agreements with respect to SNC-Lavalin? Could Wilson-Raybould have reasonably interpreted what, in other contexts, would appear as an innocent question to be an attempt to influence her with the power of the PMO’s office weighing on her perception of the communications? If it were only a question with no explicit attempt to pressure, it would not be a case for the RCMP to investigate, Akazaki says.

“When does that conversation turn into exertion of pressure because there's political authority? At what point does the discussion turn into influence? And then it becomes a matter of subjective intent,” he says.

Wilson-Raybould has retained former Supreme Court Justice Thomas Cromwell, who is counsel at Borden Ladner Gervais LLP in Vancouver. When contacted by Legal Feeds, Cromwell said he would not be doing interviews or commenting about the issue.

A client can waive solicitor-client privilege, as it belongs to them, and if they disclose the communications to a third party or take it public, that “will generally amount to a waiver of the privilege,” MacKenzie said.

The government has instituted its own version of the deferred prosecution agreements — remediation agreements, which came into force in September 2018.

Remediation agreements are for Criminal Code violations concerning economics and cannot be used for offences that caused death or serious injury or were injurious to national defence or national security, wrote Norm Keith, a partner at Fasken Martineau DuMoulin LLP, in The FCPA Blog.

The remediation agreement would set a deadline by which the terms of the agreement would need to be approved by a judge. If satisfied that the agreement is in the public interest with fair, reasonable and proportionate terms, the judge issues an order that, while the agreement is in force, criminal prosecution of conduct covered in the agreement is put on hold. If the parties hold true to the terms when the agreement expires, the charges are stayed, but if terms are not met, the accused can be prosecuted.

SNC Lavalin spokeswoman Daniela Pizzuto said via email that remediation agreements are good for all companies doing business internationally, and their introduction into Canada is important for “levelling the playing field” with other jurisdictions, including the U.K., France and the U.S., which have the tool in their regulatory regime.
 
“We have no comment on the situation between Mrs. Wilson-Raybould and the Prime Minister. As we have said before publicly many times, what the company desires is to be invited to a negotiation of a remediation agreement. We think that’s the best outcome for Canada, the judicial system, and our innocent employees, pensioners, suppliers and shareholders. We have voluntarily cooperated with authorities examining past misconduct by the Company and stand ready to continue doing so,” Pizzuto said via email.

Editor's note: Story updated Feb. 15, 2019 to include comment from SNC Lavalin.

Editor's note: Story corrected Feb. 22, 2019 to reflect that the Globe had actually reported that sources, and not Wilson-Raybould herself, told them that the former Justice Minister was under pressure from the Prime Minister's Office.