Evidence of meeting #23 for Government Operations and Estimates in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was snowdy.
A recording is available from Parliament.
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
Great. I'd like someone to be seeing to that.
So you had this conversation with Mr. Snowdy on April 8, April 9. You had a conversation with Madam Guergis, who you said also gave you some kind of factual information, and then you spoke to the Prime Minister's Office. Who did you speak with in the Prime Minister's Office--the Prime Minister himself?
Partner, Cassels, Brock & Blackwell LLP
This will be for general application: any discussions between me and any of my clients, or any communications passing back and forth, are privileged. I will not be answering questions on that.
Liberal
Siobhan Coady Liberal St. John's South—Mount Pearl, NL
If I may, Madam Chair, on a point of order, I'd like to have a ruling on this very issue. He talked about the lawyer's work product, and in this particular instance he's invoking attorney-client privilege.
I'd like to hear from the law clerk, if I may, please.
Melanie Mortensen Parliamentary Counsel (Legal), House of Commons
Thank you, Madam Chair.
I'm Melanie Mortensen. I'm the parliamentary legal counsel in the Office of the Law Clerk and Parliamentary Counsel.
In regard to solicitor-client privilege or work product privilege, these kinds of privileges do not limit the ability of a lawyer as witness to be able to reply. Nonetheless, the committee may take into consideration the privilege that is claimed in determining how or whether to address the witness, whether to limit the question somewhat in order to safeguard the nature of the information that is privileged, or whether to go in camera.
I think this is best summed up by Mr. Walsh, the law clerk, in his appearance at a different committee. I'll simply read his opinion.
On November 4, 2009, there was another lawyer appearing who claimed solicitor-client privilege. I realize that in this case a work product privilege is being claimed. But in my view, it would be the same answer.
Mr. Walsh said the following:
What he's saying relative to the obligation on lawyers as lawyers, in the usual context in which lawyers operate, is true. Solicitor-client privilege, in my view, is an important privilege. It is one the committee obviously should respect but not necessarily be governed by. It is a principle that relates to the legal rights of people who are in that solicitor-client relationship. It's all designed for the benefit of the client, not the lawyer. It is to protect the client's rights from being prejudiced by the wrongful disclosure of information exchanged with a lawyer. But that's in the context of legal rights, legal proceedings. There are no legal rights at issue here. These are not legal proceedings. These are parliamentary proceedings. It is, in my view, open to the committee to seek answers from a lawyer appearing as a witness, notwithstanding this principle, although I do believe that it is a principle of some importance and that the committee should not tread needlessly upon that principle in seeking information from a witness who is a lawyer.
Conservative
Liberal
The Chair Liberal Yasmin Ratansi
If you'll give me a moment, we'll see if we can resolve this with Mr. Hamilton.
Mr. Hamilton, would you be able to answer in a different way that will not violate your client privilege?
Partner, Cassels, Brock & Blackwell LLP
Let me just respond, because there are at least two principles at play here. There's the positive and the negative of the privilege. If you ask me if I've spoken to ten people in a client's office and I've only spoken to three of them, I won't tell you about those three but I'll confirm that I haven't spoken to the other seven. That is in and of itself its own waiver of privilege. So whether you consider that the negative or the positive of privilege, those types of questions should not be answered either.
I'm happy for my friend to rephrase the question, but when we're drilling down to things like me producing my notes that are in my personal solicitor's brief, I don't see how that could be rephrased and it become an acceptable question that doesn't trench on privilege.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I'm not sure of the case that Mr. Walsh was referring to in the information that Ms. Mortensen read, but I believe Mr. Hamilton is a member of the Law Society of Upper Canada and is therefore bound by the rules of professional conduct of the Law Society of Upper Canada. Subsection 2.03(1) states: “A lawyer at all times shall hold”--
Liberal
The Chair Liberal Yasmin Ratansi
Mr. Dechert, it's not a point of order. You're arguing, and you're arguing against the ruling of the--
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
No, no, I think you need to hear this, Madam Chair. You need to understand what's--
Liberal
The Chair Liberal Yasmin Ratansi
Mr. Dechert, it's not a point of order. It's okay, she can turn her questions around. You're arguing against what the law clerk ruled at a hearing, so--
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Madam Chair, I'm pointing out, as a rule of order, that what should apply here are the rules of professional conduct of a member of the Law Society of Upper Canada. That's not what Mr. Walsh was quoting from.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you.
Subsection 2.03(1) of the rules of professional conduct that govern the actions of all members of the Law Society of Upper Canada states:
A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.
Liberal
The Chair Liberal Yasmin Ratansi
Order.
Mr. Dechert, I don't need to hear it read, because you're basically arguing against the law clerk, and we're saying--
Liberal
The Chair Liberal Yasmin Ratansi
Ms. Coady has no problems in not asking those questions. What you're doing is arguing. It's not a point of order.
I'm sorry, I rule you out of order.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Madam Chair, it's not....
A point of order. This is--