There are two concerns around the issue with respect to privilege. One is with respect to the government documenting and seeking legal advice. The first step is, will the government seek legal advice and should the government get...?
Usually when I give legal advice to a client, my legal advice is not, “This is, this isn't; this is the way it is, and this is the way it isn't.” What legal advice often looks like is, “Here's where you're at no risk whatsoever”, and then there's a spectrum as you start to get closer to the line. How much you want to push coming close to the line is a decision made by the person, and it's often a discussion and dialogue that happens between counsel and the individual getting advice.
I'm not saying it helps people to push the line, but what will happen if these discussions are going to be disclosed is that instead of getting advice with respect to where the line is, either that advice will not be sought at all or it will not be documented. That undermines the whole purpose of the minister, or the person who is making a decision, doing it in an informed way. If the person is going to cross the line, that should be done in an informed way, with access to full, frank legal advice.
In terms of having the protection of the privilege, it allows for those frank discussions to happen. If that privilege is going to be breached or is going to be reviewed by this agency or other agencies in the future and that privilege becomes meaningless, the process of being able to get that advice is no longer going to function. I would submit that it's just as important for private actors to be able to know the law, find out the law, and get a sense of what the law is.
The privilege belongs to the government, not to the lawyer. If the government decides that they did this thing and their lawyers told them to do it, you can disclose that. It's not the lawyers' privilege.
When the CBA comes forward, we're not trying to protect a privilege that belongs to us as lawyers. My clients can disclose my advice whenever they want. It's a privilege that belongs to the client, because the client has a right to speak to me in a frank and fulsome manner, tell me everything they want to know about, and I can explain the law to them so they can make decisions.