Solicitor-Client Privilege v. Parliamentary Privilege


There is apparently some disagreement over a rather crucial point as the parties near the deadline for a final agreement on Afghan detainee documents.

The Tory-authored proposal, obtained by CTV News, asks the other parties to agree that records “subject to solicitor-client privilege” are a class of “information that the Parliament of Canada has long recognized [is] not necessary or appropriate for the purpose of holding the government to account.”

… One senior MP familiar with negotiations said all opposition parties have rejected seven paragraphs of preamble the Tories want to insert in the document deal – a section that includes the proposed exemption.


Solicitor-Client Privilege v. Parliamentary Privilege

  1. In 2008 the SCC upheld solicitor-client privilege.
    Parliament is supreme and all, but are MPs above the law?
    The federal Privacy Commissioner is not,
    and in a unanimous decision.

    “The commissioner is an officer of Parliament vested with administrative functions of great importance, but she does not, for the purpose of reviewing solicitor-client confidences, occupy the same position of independence and authority as a court,” said the ruling.

    • Um, nobody's demanding a change to the current status of client-solicitor privilege. One can waive that, if one chooses. In this case, all the Conservatives need to do is agree not to hide behind it.

    • I will give you the benefit of the doubt that this is an honest question, but a parliamentary order would be a completely different issue than the application of PIPEDA or the Privacy Act. They may decide that this particular privilege will allow the exclusion of documents.

      But here is a thought – solicitor client privilege applies when there is a realistic prospect of litigation. The date that the Harper government tries to extend privilege from is the latest possible date that they knew Canada's activities in Afghanistan could be illegal.

      • This would suggest some of the members of the government and civil service have lawyered up, doesn't it?

      • 'when there is a realistic prospect of litigation'
        i read manytimes here, Liberals wanting to see Ministers and the PM in jail.
        Isn't that where the Opps want to take this, a 'trial for war crimes comitted'?

        • "i read manytimes here, Liberals wanting to see Ministers and the PM in jail."

          Then you should have no problem providing multiple links as evidence. Please do so.

        • It would be a national tragedy if war crimes have been committed, but what would be worse would be trying to cover it up. And don't forget the Liberals are at risk here as well.

        • Are you confusing partisan bloggers with Liberal Party MPs?

          • No, I said 'i read manytimes here' HERE
            I did not say LPC MPs.

            Libs HERE read in what they want (or just go straight to the attack) when a Cons commentor posts a thought.
            Very territorial at Wherry's place.

          • Well, I don't think there is a realistic prospect of litigation from mere partisan bloggers

          • Still waiting for evidence (links) on those capital "L" Liberal posters you keep refering to, and how they want the PM and various ministers to go to jail for war crimes. Until you do so, I call bulls**t.

      • My post is incorrect, I was thinking of a different kind of privilege called litigation privilege.

  2. Given that this government has surrendered any and all benefit of the doubt with regard to transparency, one can only assume all ministers and senior bureaucrats were directed to at least copy in the lawyers on any discussions, memos or correspondence related to this file. An exemption like this would make viturally all top level material untouchable.

    Their mindset seems closer to that of private business, rather than acting on behalf of the citizens. It stinks as badly as keeping MPs' expenses secret. I don't know why any of these folks want to get involved in public life, seeing as how they apparently abhor any accountability to that same public.

    • Of course, the "copy legal" tactic is as old as the privilege itself. What surprises me is that Harper is playing this card during negotiations. It may have been more effective if the "agreement" was silent on the issue and it was raised during document processing as a reason to withhold specific documents. Of course, by broaching this issue now, Harper stands to perhaps do more damage to Iggy's standing among Liberals (when he caves). Perhaps that's the secondary objective.

      • If I'm Harper, I'm hoping the Liberals stick with Iggy for a good long time.

        • Seeing as you are not Stephen Harper (you have a shadow), what do you think is a reasonable course of action for dealing with the ineffectiveness of Mr Ignatieff?

          • I'd ask him to step down and have a snap leadership contest in the Fall of 2010. Or, I'd want to see an immediate election forced to get the same ball rolling (assuming the results play out as current polling, and Iggy's sheer lack of political mojo, suggest they will).

            All of this assumes there's something of a unified core of Liberal supporters sharing sufficient goals, who want to push in the same direction – which I'm not so sure of, these days.

          • Building on your thought about having the Liberals force the issue (any issue for that matter) themselves….

            Normally a minority parliament has some potential to be a good thing for the second or even third place party – they should be able to get some (admittedly small) portion of their platform implemented or at least prevent a piece of legislation that they find particularly lacking from getting passed. A cost is that they might find themselves constrained from going through a necessary renewal process because of the threat of a snap election.

            But in the current situation the Liberals are facing the worst of both worlds; they can't (won't) renew and yet they really aren't having much legislative success either.

            Just throwing it out there…

          • If you mess with me I'll mess with you until I'm done

            done like dinner – but it's my goddamned dinner too, Michael

          • Agreed. It would probably be helpful if they had something of a platform to advance.

          • You're saying that part of the reason that they aren't even having any modest legislative success stems from a poorly defined (or non-existent) platform?

            Yeah, that's a part of it for sure, but at least a portion of it stems from the tactics that Harper is using while in this minority parliament situation, which basically amounts to not giving even a millimeter of ground to the parties to their left. And don't get me wrong about Harper's tactics – I'm not saying that Harper shouldn't be allowed to use the approach to governing that he has chosen – Harper is free to govern as he sees fit, and he is choosing the go it alone route: fine. But if there is nothing at all in it for the Liberals, why continue to participate?

            Presumably a major outcome of the renewal process that a Harper majority would catalyze would be a well thought out platform, and perhaps complete with a new leader.

          • Assuming that poll numbers bear the most weight in the parties decision to stay the course or call an election, can we say that Harper's tactics has been mostly about creating mass confusion in the public's eye about what's going on on Parliament Hill?

          • I'm nodding my head along with everything you say. But unless they can find a way to start reflecting a more passionate and engaged grassroots core of supporters, I'm not sure a new leader, or new set of "big" ideas is going to do much for them. (But I'm often wrong, I hasten to add!)

          • Agreed. But who is there to take the reins? Bob Rae would have been a preferable choice to Michael, but is he the optimum choice for a renewal? He kind of reminds me of Ted Kennedy – a venerable old lion whose time has passed.
            I contend that the Conservative tendency toward secrecy and obfuscation is based in their inability to deliver on their promised fiscal prudence and pragmatic governance. Like the Republicans in the States, it is just a matter of time before they can't cover up the stink any longer. Coupled with Mr Harper's inability to own up and face mistakes, it will surely sink them. Do the Liberals have anyone in the wings ready to catch the rebound of the pendulum and inspire ala Obama? If they do, I don't know who it is. It's not Ken Dryden, it's not Gerrard Kennedy and I'm not sure even Justin fits the bill.
            Martha Hall Findlay?

          • It's somewhat traditional to hand ships taking on water to women – i.e. the Socreds in B.C., the NDP in B.C.. the PC's after Mulroney. I don't have a strong opinion about Ms. Findley but she seems capable enough to be an interim leader. Just a thought. But I am impressed by Dominic Leblanc.

          • Maxime Bernier would be a great candidate. Most of his ideology fits in the 90's Liberal framework anyway.

    • I don't know why any of these folks want to get involved in public life, seeing as how they apparently abhor any accountability to that same public.

      Probably because they have a desire for access to the "levers of power" that are only accessible to public office holders. The accountability part doesn't necessarily figure into that desire at all.

  3. And so, this is day what of 14, now? The time frame during which the Speaker has declared his own supremacy over parliamentary supremacy by choosing not to enforce parliamentary supremacy?

    • It's sensible from the speakers point of view to let the parties sort it out if they want to. But when Harper is acting like he is, the negotiations are going to be unproductive and they should just go get the documents.

      • <s>Are you suggesting Mr Harper does not bargain in good faith?</s>

  4. I guess Harper's guessing he can jerk Iggy around, and he's probably right. Iggy opposes the dumpster Bill C-9, but he's going to vote in favour of it. He thinks Harper's all wrong for Canada, but he keeps on keeping him in power.

    Gotta give this to Harper. He's been extremely lucky. First, Paul Martin hands him the job on a silver platter, with a little help from the RCMP. Then came Dion, and now it's Iggy.

    Lucky. Lucky. Lucky.

      • Putting wheels on the goal posts helps too.

  5. It is at this stage of a negotiation when one, with even a modicum of self-respect and genuinely interested in a reasonable resolution, walks out of the room.

    I'll not hold my breath.

    • A minor addition… so if I'm Iggy and faced with this sort of negotiating tactic just a few weeks away from the summer recess, how best to respond?

      Well, at this stage, reaching a weak agreement — i.e., accepting the crap the Cons are pitching — seems to have no upside. It effectively puts the entire detainee isssue in the closet for months or years. So, why accept a weak agreement in the next few weeks? Why not negotiate hard, and be prepared to have this drag into the summer recess and into the fall session? What's the downside? There is a reasonable chance Harper will pull his own plug in the fall, so why let him take detainees off the table?

      What am I missing?

      • Does the government not want the house to sit so as to pass copyright legislation? So, if the house sits, the house rules on house business, no?

        • It would be just the committee sitting I believe.

          • That would appear to be so. Thank you for that clarification.

    • What remedy does the Speaker have if they go back to him?

      • He can find various members of the government to be in contempt. This could, in theory, include punitive sanctions against such individuals (not unlike being in contempt of court, I think), but would most likely simply force a dissolution of parliament and an election.

        • None of the parties want an election now. It's either more Liberal weakness or a show of spine and delay.

        • No he can't. He can rule that there is a prima facie case. The House must vote on a motion of contempt.

          He did rule there was a prima facie case. But he did not allow anyone to put forth a motion of contempt.

          • Ah, quite right (and thank you for correcting me!).

            The speaker can allow a motion of contempt to be brought foward – is that right?

          • A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If in the opinion of the Speaker these two conditions have been met, then the Speaker informs the House that, in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker's ruling does not extend to deciding whether a breach of privilege has in fact been committed — a question which can only be decided by the House itself. (italicized text in original removed).
            From: http://www2.parl.gc.ca/MarleauMontpetit/DocumentV

            And discussed (ad nauseum, many might assert) in: http://www2.macleans.ca/2010/05/02/privilege-and-

          • If the Speaker is satisfied that the necessary conditions have been met and finds a prima facie breach ofprivilege or contempt, the decision is announced to the House. As soon as the Chair has apprised the House that a prima facie case of privilege has been found, the Member raising the matter is immediately allowed to move a motion.

            From the same web page (of Marleau & Montpetit) as linked above. This was not allowed to happen. The Speaker used parliamentary language to beg everyone not to make him proceed to the motion(s) of contempt.

  6. Isn't there a distinction to be made between "private" liability and "public" liability? I don't really have a problem with protecting the "private" liability of MPs and Cabinet ministers, as that seems to be protected in any case in Parliament (i.e., what one says in Parliament is not subject to legal action, but if one repeats it outside of Parliament it may be actionable). So it seems that what an MP or Cabinet Minister does AS AN INDIVIDUAL is protected. However, what they do in their capacity as a PUBLIC OFFICIAL should, in my view, be subject to accountability…or am I making too fine a distinction?

    • The terms of the December order passed by parliament are unlikely to include anything private in the sense you seem to be describing.

  7. There was never an intention to cooperate.
    Just to appear to, and delay. (kick the can down the road)
    Bury the original issue in "squabbling politicians", suppress interest and ultimately voter turnout.

  8. Also…doesn't this come down to a question of the supremacy of the Court over Parliament? Should a privately retained lawyer have access to "public" information that is denied to MPs? My understanding, which may be faulty, is that the two bodies have roughly equivalent rights and obligations, providing a "balance" of power. Note, however, that Sec.33 of the Constitution Act, 1982 (the "notwithstanding clause" Eeek! Who really WANTS to introduce that into this discussion?) does provide Parliament the right to overrule legal rulings "…except for Sec.2 and Sec.s 7-15 where, in Sec.13, individuals' rights against "self-crimination" are upheld. Seems to me that a Cabinet minister should be able to testify without being held liable in another action, no?

  9. Protection of our brave soldiers

    Upholding the sanctitity of a principle that goes to the heart of access to the law, and which has been held a fundamental rule of law (not just a evidentiary/procedural point) for several decades now.

    All these pesky trivialties getting in the way of what's really important -the partisan "gotcha" to get Harper.

    • Currently nobody is realistically saying that our troops have committed crimes, but more that the government did not do its job properly once soldiers and bureaucrats told them what was going on.

      If it turns out the troops did commit crimes, however, that's unofrtunate but they can't escape punishment. Rules is rules. if we don't want them to act legally when they do their jobs, don't place legal requirements on them.

  10. There's no doubt that SOME documents legitimately involve solicitor-client privilege. But I've no doubt that, in the vast majority of cases, the government is hiding behind s-c privilege to prevent key documents from seeing the light of day, or at least, the light of an in camera committee of MPs who've all pinky-swore that they won't reveal a thing.

    The question is how to tell the difference?

    The agreed upon, ad hoc committee of MPs that will review these documents will require a vast amount of outside legal assistance to determine which document legitimately involves s-c privilege and which doesn't, an exercise that will take an immense amount of time and money and patience. We're potentially talking years, not months and weeks, that the committee just doesn't have.

    Two alternative possibilities exist. First, MPs could create a preflighting subcommittee, using external resources, which would be dedicated to making recommendations on s-c privilege. All of the documents would still be forwarded to the ad hoc committee but MPs would at least know when s-c privilege was involved with which document(s) and when it was not. The ad hoc committee could then decide how to proceed.

    The second choice is that MPs simply waive solicitor-client privilege for all documents related to the Afghan-detainee issue through a parliamentary order (the may not be the correct process but you get the idea). Such a move could have the benefit of speed but would it would also lack discretion and could have major unintended consequences.

    There's no easy answer for MPs because there's a small grain of truth attached to the Conservatives claims.

  11. Does the priviledge belong to the government, in it's entirety or individual people – or both?

    • In this case, if I understand it, the privilege exists between the government/Crown and its solicitor(s). Cabinet ministers and others would be working on behalf of or as agents of the government of Canada, so the privilege would not apply to them personally. Since the government is a part of Parliament, a simple majority of MPs could, theoretically vote in favour of waiving this privilege. I'm sure it's more complex than this and there are undoubtedly legal nuances involved.

      • I thought that might be it.. Being an optimist I'm seeing a glimmer of light at the end of the tunnel, given the Government is a minority. Mind you, the deadline is Monday and the session is drawing to a close. Meanwhile, the Budget bill is looking like trouble for Harper.
        Interesting times…

  12. On something else, related, that worries me. Layton's latest comments. Dear Mr. Wherry, could you or someone else get a copy of the interview transcript and post it? Because as I read it, the first two paragraphs suggest that Layton doesn't think the defeat of a Govt on a money bill necessarily leads to an election. Maybe it was decontextualised and he meant to say the threat of one, re. negotiations with the government over budget bill. But that's not the impression the first two paragraphs give. If that were true, either Layton is astoundingly ignorant, non compos mentis or, even by his standards, staggeringly false in his posturing to distract form the NDP's own troubles (expenses, gun control, internal dissension as internal contradictions created by Layton come home to roost, etc.). I don't know what more can be said about Layton. I'd like to read the transcript before I say anymore about it. The link is below, the paras are as follow:
    "New Democrat Leader Jack Layton taunted his Liberal counterpart Michael Ignatieff Saturday to vote against the Conservative government's "Trojan horse" budget legislation. Layton argued there was "no way" Prime Minister Stephen Harper would allow his government to fall ahead of next month's G8 and G20 summits, and so would be forced to negotiate with a united opposition." (Note that he doesn't seem to say Iggy should "threaten to vote against", but that he should "vote against", but the Govt wouldn't fall. Maybe there was a mistake in the reporter's notes/transcription, and he linked the threat of voting against to negotiations that would lead the Govt to negotiate? I think that's what he's getting at, reading the rest, but at the same time, that's not what he seems to say, according to the reporter.) http://thechronicleherald.ca/Canada/1184902.html

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