Justice Committee on Feb. 21st, 2019

[David Lametti]

We are doing our best.

I am doing my best as Attorney General to find a way for that to happen, which of course provides transparency to Canadians and fairness to the former attorney general, but also does not compromise any of those other matters that I mentioned at the outset—litigation, privilege, in particular—because there is ongoing litigation between the director of public prosecutions and the company in question.

As she has stated, the question of solicitor-client privilege in particular is complex and layered.

[Murray Rankin, NDP, Victoria, BC]

Okay. Well let me—

[David Lametti]

We're trying to sort through that as best we can.

[Murray Rankin, NDP, Victoria, BC]

Let me ask you about that. Let me come to that very issue.

A prominent lawyer from Toronto, Andrew Roman, has written in an influential blog the following, and I want to ask if you agree:

No one in government was permitted to give the Attorney General any instructions when she or the DPP were involved in a prosecution. As she could not have been under instructions from any client there cannot have been any solicitor-client relationship. And, obviously, as there was no solicitor-client relationship, there can be no solicitor-client privilege.

There was no valid reason for either the Prime Minister or his senior staff to have initiated such a conversation with Jody Wilson-Raybould. The only reason for either of them to discuss her prosecutorial decision would be to encourage her to change it, without being seen to do so. This is damaging to the rule of law.

Do you agree?

[David Lametti]

The question of solicitor-client privilege and the question of whether it applies in any given set of facts, or the question of whether it has been waived in any particular set circumstances, are part of the general questions that I have to answer as Attorney General. I can't pronounce on any of that, as you will well know as a lawyer, without compromising solicitor-client privilege myself.

[Murray Rankin, NDP, Victoria, BC]

You are a lawyer. I am a lawyer. But it may be that the Attorney General was not a lawyer at the time of the incident. That is to say, we have now learned that she was not a lawyer in the eyes of the legal profession when the decision was made to continue with the prosecution of SNC-Lavalin on charges of fraud and corruption.

The dean of law at the University of Ottawa, Adam Dodek, who wrote a book called Solictor-Client Privilege, has argued as follows:

Under existing doctrine, it is difficult to reach any other conclusion other than legal advice from a non-lawyer Attorney General is not encompassed by Solicitor-Client Privilege because a non-lawyer Attorney General does not qualify as a 'professional legal adviser'.

What are your thoughts on that?

[David Lametti]

I am going to decline out of prudence to give an opinion on that, because once again, it may be part of an opinion that I have to render.

[Murray Rankin, NDP, Victoria, BC]

Who is the client?

You mentioned that you owe it to your client, Canada, as Attorney General. I want to know that if there is solicitor-client privilege, a matter which many lawyers think does not exist in these circumstances, who is the client?

The late Justice Rosenberg of the Ontario Court of Appeal said that the client ultimately of the Attorney General is the Queen, and that is because she represents the rule of law.

Do you agree with that, and therefore, who gets to waive the privilege in these circumstances if such privilege does exist?

[David Lametti]

The client is Canada. The question of waiving privilege, as you well know as a lawyer, is a very complex question in these cases, and once again, it falls under my responsibility to maintain that solicitor—

[Murray Rankin, NDP, Victoria, BC]

So is it you who decides? Is it you who decides the waiver?

[David Lametti]

I am saying that it is part of solicitor-client privilege on my part not to be able to answer that question.

[Murray Rankin, NDP, Victoria, BC]

So who does?

[David Lametti]

Again, for the reasons discussed, it's a question that I cannot answer here.

[Murray Rankin, NDP, Victoria, BC]

So we may not have anybody who can waive privilege.

[David Lametti]

You can invite Professor Dodek, as I believe you have, for his opinion. You can invite other experts. You can invite former Justice Rosenberg.

[Murray Rankin, NDP, Victoria, BC]

He's deceased.

[David Lametti]

Oh, that is problematic.

You can invite other experts. I am currently the Attorney General of Canada. I am currently, as the Prime Minister has said, advising the Prime Minister on these matters, so I am covered by solicitor-client privilege. I simply cannot answer that.

[Murray Rankin, NDP, Victoria, BC]

I accept that, but when we keep hearing about waiver of privilege, if that exists, we never get to know who gets to waive it. Is it the Prime Minister? Who is it?

[David Lametti]

Again, that is a very complex and layered question.

[Murray Rankin, NDP, Victoria, BC]

A layered question, but it seems to go fundamentally to this.

Can I ask you a final question?

[David Lametti]

You will see in the academic literature that there is a dispute—

[Murray Rankin, NDP, Victoria, BC]

Yes.

[David Lametti]

—and so I cannot pronounce on that.

[Murray Rankin, NDP, Victoria, BC]

Can I ask you this final question?

[The Chair, Liberal, Anthony Housefather]

You have 45 seconds. It's your last question.