Under Section 7.2(3) of the B.C. Code of Professional Conduct, a lawyer is prohibited from using any device to record a conversation between the lawyer and a client or another lawyer even if lawful, without first informing the other person of the intention to do so. The language is virtually identical for lawyers in Ontario and other provinces and a breach of this rule is a breach of a lawyer’s ethical duties and could conceivably lead to a fine, or in very extreme cases, suspension or disbarment.
The Criminal Code contained some pretty wacky provisions until they were repealed by Bill C-51 last year. Among them, "an act with intent to alarm Her Majesty " under s. 49, challenging someone to dual under s. 71, and the rule ensuring citizens don't “fraudulently pretend to practise witchcraft, sorcery, enchantment or conjuration, to tell fortunes for money,” under s. 365.
One of the more bizarre sections that continues to remain on the books is s. 184, which involves the electronic recording of private conversations. Laughingly, it’s legal if one of the participants consents to recording a telephone conversation, even if the person on the other end of the line has no idea they are being recorded, Mission Impossible style. It's called the one-party consent exception, and it is beloved by the espionage fiction industry, real-life spies and the National Enquirer.
It's different, however, for lawyers. Under Section 7.2-3 of the B.C. Code of Professional Conduct, a lawyer is prohibited from using any device to record a conversation between the lawyer and a client or another lawyer even if lawful, without first informing the other person of the intention to do so. The language is virtually identical for lawyers in Ontario and other provinces and a breach of this rule is a breach of a lawyer’s ethical duties and could conceivably lead to a fine, or in very extreme cases, suspension or disbarment.
So why is it that the former minister of justice and attorney general for Canada felt that she could breach her ethical obligations under Section 7.2-3 of the Code and record a private telephone conversation with the former Clerk of the Privy Counsel Michael Wernick; a life-long and non-partisan public servant who has advised both Liberal and Conservative governments throughout his career?
There are some flat-earthers, conspiracy theorists and factually challenged scandal-mongers on the internet who seem to think she wasn't acting unethically by breaching any professional conduct rule because she had a higher, more noble, more principled and more honourable purpose; namely, to expose something that may have been “inappropriate” (as opposed to exposing something that may have been an actual “crime”). The former minster has admitted there was no illegality and no crime committed respecting the government’s handling of the SNC-Lavalin matter.
So where’s the scandal?
In the U.S., recent scandals have involved a president paying off prostitutes for their silence; whether the same president obstructed justice and whether he or his party were somehow colluding with the Russians during the election of 2015. He complains about a “witch hunt,” but over 30 of his witches have been indicted or plead guilty since he took office.
In the U.K. scandals involve anti-semitism in the Labour party, delusions of empire among the Conservatives and the circular firing squad over Brexit.
In other countries, political scandals involve the murder of political rivals.
By comparison, Canadian political scandals are disappointingly dull. Canadian scandals are about whether something was “appropriate” or “inappropriate;” be it the Prime Minister’s dancing attire in India, or whether something equivalent to a “plea bargain” should have been considered instead of a criminal prosecution against a company with 9000 employees where the chief perpetrators have long ago resigned or been fired.
Oh, and we can’t forget the consumption of a chocolate bar by the prime minister in parliament exposed by the Tories. That was a real doozy of a scandal.
With the exception of former Conservative cabinet member Tony Clement (and his dangerous penchant for photography and texting), Canadian political scandals are so boring, they aren’t even about sex.
Some magical thinkers in the “I’m not a lawyer but I’m entitled to my legal opinion on Facebook anyway” camp have argued that Jody Wilson-Raybould wasn't acting as a lawyer when she surreptitiously recorded Wernick’s call, or that Mr. Wernick wasn't really a client. Either way they say, Rule 7.2-3 of the Code of Professional Conduct did not apply to the former minister.
But both these arguments are preposterous. She was the highest lawyer in the land, and he was a representative of the Government of Canada under s. 5 of the Department of Justice Act. Of course she was acting as a “lawyer,” and of course he was representing a “client” when she surreptitiously recorded his call. If there was one iota of doubt about that, she might have actually read Section 7.2-3, or better yet, consulted with a Bencher.
My question is this: did any possible issue concerning her handling of the SNC-Lavalin matter (and whether it was appropriate or inappropriate to “pressure” the former Minster to reconsider a remediation agreement), give her the excuse to breach her ethical obligations as a lawyer under section 7.2-3 of the code and surreptitiously record the telephone conversation with Mr. Wernick?
I say no.
In my view, she professionally misconducted herself by recording the call with Mr. Wernick. The code applies to me and it applies to every other lawyer in Canada, including the former attorney general and minister of justice. For the code to mean anything at all, there must be consequences. Those include a potential citation by the Law Society of Ontario for a breach of section 7.2-3, or, if she ever returned to practice law in B.C., a credentials hearing to assess whether she is a good character to practice law in the province where she remains a member of parliament.
But perhaps the saddest and most unfortunate consequence of her ethical breach is that for the rest of her professional life, she should expect to have every single telephone conversation recorded; except of course, her telephone conversations with lawyers.
You see, as lawyers, we aren't allowed to record private conversations without informing the other person of our intention to do so. And we must, as lawyers, comply with those obligations or face the consequences of our misconduct.