Does Jody Wilson-Raybould’s solicitor-client privilege stand up to scrutiny?
Last week, the Globe & Mail published a story alleging that the Prime Minister’s Office (PMO) orchestrated pressure on the former Attorney General (AG) Jody Wilson-Raybould, seeking to get her to direct the federal prosecutors handing a criminal case against SNC-Lavalin to settle the matter with a “deferred prosecution agreement.”
Such a plea bargain would save the company a criminal conviction, which would have precluded them from bidding on large government infrastructure contracts for 10 years.
Reports are that Wilson-Raybould resisted that pressure with some force, and was rewarded for her principles by being shunted out of the AG portfolio.
Her parting thoughts on her stint as Justice Minister and AG, published by her on social media, are now the subject of much reading between the lines. Her shot across the bow might have gone unnoticed or misunderstood, the dots might have remained unconnected, had it not been for “sources” spelling it out to reporter Robert Fife, presumably coming forward out of concern that the message had not been received by the PMO.
By Fife’s account, Wilson-Raybould felt that the PMO was interfering with the independence of Crown prosecutors, all the while assuring Canadians and the world that Canada is a “rule-of-law country” which does not mix politics with court proceedings.
This is a serious allegation, indeed. The PM and the current AG are maintaining – ad nauseam – a carefully crafted denial of political interference.
Whether “undue influence” was exerted is bound to be a matter of judgment, involving variables such as the types of considerations that were pressed upon Wilson-Raybould (legal vs. economic and political), how vigorously they were pressed (how many PMO staffers and Cabinet Ministers were orchestrated to exert pressure, over how long a period of time), and whether any consequences for non-compliance might have been hinted at.
Canadians should not be satisfied until these issues are fully explored. The person who could clear matters up, Wilson-Raybould, has invoked solicitor-client privilege as an excuse not to get involved.
Of course, the PM could waive that privilege and allow her to speak and answer questions raised by the Globe & Mail story; but so far the Liberals have decided that their best political strategy is to stonewall.
It is an interesting question that deserves much investigation and exposure as to why the Liberal government would be so eager to protect SNC-Lavalin from the natural consequences of its alleged corruption. (Hint: the culture of insider dealings exposed by the Charbonneau Commission is alive and well in Quebec.)
That issue is beyond the scope of the present essay. Here, I only wish to examine Wilson-Raybould’s claim of privilege, which is the legal cover for Liberal stonewalling.
Whether or not solicitor-client privilege covers communications between the AG and other political actors is unsettled in Canadian law. There is no case law directly on point. It is therefore necessary to examine the case starting from first principles.
Two key conditions must be met for a claim of solicitor-client privilege to arise. First, the communications purported to be privileged must be between a practicing lawyer and her client. (Communications within Cabinet are protected by other confidentiality provisions. Cabinet confidentiality has not been invoked by Wilson-Raybould, because the communications of primary interest are between her and PMO staffers presumed to be acting with the authority of the PM.)
This condition has been relaxed slightly, to cover communications between law students and the clients they represent while working for legal aid clinics. Yet it is a condition that the legal profession has been very protective of limiting, since they see the solicitor-client relationship as deserving of very special and strong protections.
Wilson-Raybould claims that, as AG she was the “government’s lawyer.” In fact, the AG need not even be a lawyer. Marion Boyd was AG in Bob Rae’s cabinet in Ontario, and Shirley Bond was AG in Christy Clark’s cabinet in B.C.; neither of them were lawyers.
If these AGs had been fulfilling the role of “government’s lawyer,” they would have been practicing law in contravention of the legal profession regulations in their provinces.
Shirley Bond’s appointment was actually challenged on the ground that she was not a lawyer, but the challenge was dismissed by the Law Society of B.C. (Wilson-Raybould is a lawyer, but she is a member of the B.C. bar, not the Ontario bar, and therefore would not have been licensed to give legal advice to the government in Ottawa.)
Wilson-Raybould was no more the “government’s lawyer” than the environment minister is the government’s climatologist, or the finance minister is the government’s banker.
A cabinet minister is a senior middle-manager in the government, that’s all. The AG’s job is not to give legal advice to the government; her job is to convey legal advice from the Justice Department to cabinet, to convey cabinet decisions about the legislative agenda to lawyers in the Justice Department who are tasked with drafting bills, to manage the stable of federal prosecutors, and occasionally to make political, quasi-legal decisions (such as on extraditions, pardons, and settlements).
The only solicitor-client relationship involving the AG has her as the client and the DPP as the solicitor. Communications between the AG and DPP are privileged, but that privilege does not extend to any collateral discussions the AG might have with other political actors.
Perhaps the simplest way to demonstrate that the AG is not the government’s lawyer is to note that in a solicitor-client relationship, the client calls the shots and the lawyer faithfully executes them.
The client decides on what objectives he wishes to achieve, what strategies to employ to achieve that result, and whether or not to settle a case and on what terms.
The lawyer’s job is to advise on the prospects of success, to point out the advantages and pitfalls of various strategies, and to draft legal documents in such a way as to protect the interests and further the objectives of the client. But in the case at issue, the PM is statute-barred from giving the AG instructions on the matter; the AG must act independently of political influence when giving direction to the DPP.
The PM, and cabinet, are prohibited from being the AG’s client. In short, Wilson-Raybould can’t have it both ways: she cannot claim solicitor-client privilege for her communications with the PMO at the same time as claiming that her role as AG is independent of influence from her “client.”
The second condition required for a claim of solicitor-client privilege to arise is that the communications claimed to be privileged must be in the course of rendering legal services to the client.
A lawyer’s communications with friends, colleagues, bosses, or business associates are not privileged unless they have been retained specifically to give legal advice, and only to the extent of that legal advice.
This raises the thorny issue of what “legal advice” the AG might be thought to render to the PM, or to cabinet – and how to distinguish “legal advice” from political considerations. For example, if the AG is trying to decide whether to pardon a class of people, such as “battered women” who have been convicted of murdering their husbands, are communications she receives from other political actors privileged or not?
The view that the AG provides legal advice to the government would mean the AG “wears two hats”: she is both a political actor, and a lawyer, at the same time. But lawyers are supposed to avoid conflicts of interest, to avoid serving two masters with different interests.
It would be totally contrary to the intent of solicitor-client privilege were it used to shield impropriety in a collateral role. Surely the AG should be a compellable witness on political matters; thus it is fair game to ask Wilson-Raybould what political and economic considerations she was asked to take into consideration when making quasi-legal decisions in her role as AG.
It is important to settle what privileges the AG might be able to claim for future guidance, and this matter should be pursued in the public interest, not merely for the sake of what it might reveal in the present case. But Wilson-Raybould’s claim of solicitor-client privilege is now moot in light of recent public comments made by the PM.
Yesterday, he said that he had spoken with her twice, and “She confirmed for me a conversation we had this Fall, where I told her directly that any decisions on matters involving the Director of Public Prosecutions were hers alone…”
It is settled law in Canada that once a client has revealed communications he has had with his lawyer, solicitor-client privilege is implied to have been waived for the specific communications referred to. The reason for this implied waiver is obvious.
Clients will sometimes attempt to bolster their case by saying that their lawyer, or more commonly their ex-lawyer, told them something. If that claim were protected by privilege, and therefore could not be tested, it would not only impair the pursuit of truth, it would pervert it. Imagine the following conversation taking place:
PM: Our electoral success in Quebec depends upon SNCL surviving. So I am ordering you to direct the DPP to settle with SNCL in such a way as to spare them a criminal conviction!
AG: But sir, the law prohibits you from making any such order. The law requires me to make my decisions free of any political or economic considerations.
PM: Oh, um, ah, well, um, ah, um, but nobody needs to know….
AG: I will know! And if you insist that I direct the DPP to take this particular course, I will have to resign – and I might have to explain why I left my post.
PM: Oh, um, um, ah, OK. Um, ah, if that’s the way you want to roll, then fine. From now on, any decisions on matters involving the DPP are yours alone.
If that were the nature of the conversations, then it would be quite misleading to take the final snippet of conversation at face value, and to protect the rest of the conversation from examination.
It must be open to test the soundness of the PM’s claims by asking the AG for all of the context in which that conversation took place.
A judge in a court of law would certainly compel the ex-AG to testify, and to answer questions about those conversations. It is now time for the politicians in Ottawa to stop playing games and get to the bottom of this controversy.
After being surveyed by The Canadian Press, Jody Wilson-Raybould was declared “Newsmaker of the Year” for 2019.
Raybould was PM Trudeau’s attorney general who brought to light the SNC-Lavalin Affair, for which she was fired and eventually forced out of the Liberal Party.
It is widely believed that this scandal, among many other reasons, was responsible for denying the Liberals a second majority in October.
Editors from various Canadian outlets told CBC why Raybould was their choice.
“Jody Wilson-Raybould made us think about governance and fairness and loyalty and how all of those things play out every day behind the scenes on Parliament Hill,” said Toronto Star senior editor Janet Hurley.
“She lifted the curtain and let us see inside and, as the election results ultimately revealed, not everyone liked what they saw. Some called her courageous; others were less kind — but in the face of all that she created a national dialogue unmatched this year.”
Sun News editor-in-chief Mark Towhey said, “[This time last year], the number of Canadians who could tell you who Jody Wilson-Raybould was would fit in a mid-size restaurant.
“In 2019, she became a household name at the centre of the biggest political story of the year.”
Elizabeth May is out as the leader, but the Green party certainly isn’t stopping.
According to a recent report from the CBC, Jo-Ann Roberts is considering recruiting former Liberal Cabinet Minister and now independent MP, Jody Wilson-Raybould to the party’s top job.
Wilson-Raybould is the only Independent in the House of Commons after she was kicked out of Liberal Party by Justin Trudeau over the SNC-Lavalin scandal. Then, attorney general, Wilson-Raybould said she was bullied and pressured by Prime Minister Justin Trudeau and his office to spare the SNC-Lavalin, a Quebec engineering firm with Liberal ties from prosecution.
The federal government has blocked almost all genuine investigation into the matter, with the RCMP even facing difficulties when it comes to having confidentiality waived on key witnesses.
Although hopeful, Jo-Ann Roberts has not reached out yet, as she believes former party leader Elizabeth May will take the lead on recruiting, given her close relationship with Wilson-Raybould, and the close working proximity on the hill.
May has previously attempted to recruit Wilson-Raybould, following the SNC-Lavalin affair, offering her the leadership even back then.
While the interim leader has stated her hopes to recruit Wilson-Raybould, she has also stated that her party is actively looking at other strong candidates who could join the leadership race.
The 2019 federal election had a great deal of uncertainty. Up until the polling stations had closed, Trudeau’s Liberals and Scheer’s Conservatives had been level on points, with the other parties scrambling for third place.
However, it soon dawned on Ottawa’s broadcasters that nothing of any interest had occurred. The Liberal’s had won their minority, the Conservatives had failed to convince anyone of their competence outside of the Prairies, and the NDP was, unsurprisingly, swept away in Quebec.
Perhaps, the only early-night surprise moment of the election came from the Green Party. Despite Elizabeth May failing to capitalize on the growing environmental consciousness of Canadian citizens, the eagerly anticipated green wave hardly drenched the beaches of Canadian politics. Nevertheless, the election of Jenica Atwin, the first Green Party candidate east of British Columbia, created some excitement for the party.
Atwin is a young, gregarious candidate, who has spent much of her life campaigning for indigenous rights and environmental protections. This election, despite being expected to finish in third place, she took Fredricton by storm, winning by 791 votes.
To discover more about this breakout star, The Post Millennial sat down with Atwin to understand her background and her political influences, as well as what she hopes the Green Party can do to remedy Western alienation and the courting of Jody Wilson-Raybould.
Q: How did you get into politics?
Atwin: In High School I was my grad class president so that’s kind of where it started. I studied political science at university. I started my undergrad with the hopes of being a lawyer because I recognized that many politicians were lawyers and judges. I’ve always been setting the stage to get involved at some point in my life. I began working with aboriginal youth, which really lit a flame inside of me to really step up my involvement. I had my second child, and I was on maternity leave, and there was an upcoming provincial election and the timing was right.
Q: You finished fourth in the provincial election, was it at all nerve racking to run again federally?
Atwin: Provincially, I knew that it was very difficult to win. It was more about having a breakthrough and understanding what it took to win. We doubled our vote count so it was a success. Things were aligning nationally, and in the city of Fredericton the timing seemed right. I wasn’t nervous about getting the vote. I knew that we would have an excellent shot. Even before we had a candidate selected, people were speculating that it would be a three-way tie.
Q: You were originally ranked third before your upset, when did you realize you actually had a chance of winning?
Atwin: There was a lot of momentum. We knew there was a protest vote out there, and we knew there was an appetite for voting outside of the traditional red and blue. However, it really started to change after we put out our ground game. The canvassing was huge for us, we knocked on thousands of doors.
Q: Did you always want to get into Green politics?
Atwin: As a young voter, I was always a Liberal. Even on social media I had been Liberal for quite a long time as a status on Facebook. When it comes to indigenous issues, we knew the Liberals were the better option. It was really in 2015 that it became very clear to me that the Green’s really rose above the others on Indigenous issues.
Q: Are you disappointed by the Liberal’s approach to Indigenous issues?
Atwin: Yes, I had such high hopes. I clearly remember watching the Tragically Hip’s televised concert where he put the spotlight on Trudeau. I was so hopeful that he really was going to live up to his expectations. I believe that their intentions were good. I have to believe that, but they just didn’t engage with indigneous voices enough. At a town hall, for example, [Trudeau] said we have to be patient with indigenous communities while they figure out what [reconciliation] means. That is absolutely the wrong direction to take. It is the settlers, the colonials, that have the responsibility to make steps towards reconciliation.
Q: How has your community be impacted by climate change?
Atwin: Through the flooding of the St. John river. So many people were affected. Climate change was real for them. They could no longer pretend it didn’t affect them. It was in their homes, it was costing them $20,000 a year— people are now worried about what’s going to happen next spring.
Q: In the Green Party manifesto, it talks about its disapproval of the TMX pipeline. There is a sense of alienation in western Canada. Is the Green party willing to risk possible separation and further alienation?
Atwin: We definitely don’t want to alienate Alberta, and they feel attacked when we talk about moving off fossil fuels. We’ve always included aspects of retraining and including those voices to make sure they’re not left out. Their skills are so transferable and we are not going to leave them behind.
Q: The Green Party’s proposals are quite aggressive with the 2030 deadline. To achieve your goals, the government would have to seriously infringe on people’s lives.
Atwin: Our role as MP is to bring people along for this ride. We have three MPs so it’s not really feasible, anyway.
Q: Well, you may have a vote pact with the Liberal Party, in which case some of your environmental policies may be mandated.
Atwin: I always think it goes back to positive reinforcement and incentives rather than negativity towards people. But you have to be aggressive and go after these things in a way that is strong. It’s a fine balance. It’s about our leadership being aggressive, our rhetoric being aggressive, it’s about having real concrete steps forward that people can take pride in.
Q: Under May’s leadership, there has been talk of a green wave. Although there has been an improvement of one seat, the green wave never really happened. Were you surprised that there weren’t other Green MPs.
Atwin: I was surprised more than anything else, I thought there were a few ridings that were guaranteed. I was very hopeful for a few more spots in the maritimes as well. I still see it as a victory, we doubled our popular vote. But it would have been nice to have a bigger caucus.
Q: There was a lot of talk about Jody Wilson-Raybould joining the Green Party, would this be something that you encourage?
Atwin: She’s an inspirational woman and leader. What happened with SNC shows her personal integrity. So if she wants to come, I would be more than open to that. I would love the opportunity to work alongside her.
Q: May has said she will step down as party leader in the next four years, are you thinking at all about running for the leadership?
Atwin: It’s interesting how many times this has come up over the past seven days. I’m not thinking about it at all. Even hypothetically. I just can’t entertain it at this time. I think it might be something that Paul [Manly] would consider more than myself.
The woman who took on Trudeau in the SNC-Lavalin scandal has officially won her seat as an independent candidate in Vancouver Granville.
Jody Wilson-Raybould previously won her riding in 2015 as a Liberal with 43% of the vote, spending less than both her NDP and Conservative opponents.
She then became the first indigenous person and the third woman to serve as Canada’s Minister of Justice and Attorney General.
Wilson-Raybould entered the 2019 race as an independent after leaving the Liberals due to the Prime Minister’s extremely problematic handling of the SNC-Lavalin affair.
That scandal originally reported by the Globe and Mail found that the Prime Minister’s Office had attempted to influence Wilson-Raybould concerning an ongoing prosecution of SNC-Lavalin while she was Minister of Justice and Attorney General.
While the PM has continuously denied this, the Ethics Commissioner has found that laws were broken and that the PMO did attempt to unduly influence her.
This is a breaking news story and will be updated.