In my last column, I argued that the proposal to use judges to help solve the impasse between Parliament and the government over the Afghan detainee affair is a bad idea.
In this column, I write about the collision between parliamentary privilege and solicitor-client privilege and how the latter should give way to the former.
The potential clash between Parliament and the government over detainee documents ended as a result of Speaker Peter Milliken’s sage ruling on April 27 and the subsequent agreement by all parties, except the NDP, this month.
Under the terms of that agreement, an ad hoc committee would view the documents and determine which were relevant and necessary to hold the government to account. At the same time, a panel of arbiters composed of “eminent jurists” would rule on the likely disputes.
In addition, the agreement can exempt records, through solicitor-client privilege, from disclosure. This is problematic.
To begin, my colleague Michel Drapeau, a former colonel in the Canadian Forces and an expert in military law, has said the government makes excessive use of solicitor-client privilege to prevent the release of documents under access-to-information legislation.
Even, if it is not overused, solicitor-client privilege should yield to parliamentary privilege, especially in this case. The Supreme Court of Canada has clearly and forcefully held that parliamentary privilege falls under constitutional protection.
While it has elevated solicitor-client privilege to such status in a number of cases, on a doctrinal level it simply hasn’t had the same level of constitutional recognition as parliamentary privilege, nor should it.
Parliamentary privilege is one of the cornerstones of our Constitution and predates Confederation. It’s absolutely vital to the functioning of our system of parliamentary democracy in Canada.
At its core, parliamentary privilege is about protecting the essential functions of Parliament to allow it to fulfil its roles as a house of debate and the organ of government charged with holding the executive to account.
Solicitor-client privilege is an evidentiary concept that has garnered constitutional status over the past two decades. It may be important for the administration of justice but it’s not on par with parliamentary privilege.
More problematic for governments is that when you scratch the surface of the rationale for solicitor-client privilege, it doesn’t make a lot of sense when applied to government.
The justification for solicitor-client privilege in Canada is to ensure full and frank communication between client and lawyer. The fear is that in the absence of the privilege, a client would only tell a lawyer half of the story.
These
justifications work best in the context of the individual client and individual lawyer. They work especially well in the criminal defence context but they don’t work well in an organizational setting and not well at all when it comes to government.
Solicitor-client privilege is certainly useful to government, but whether it should have its full protections the way that individuals do is another matter. Consider a few points. Government lawyers frequently obsess over the important question of who their client is.
If we can’t figure out conceptually who the client is, how can we attach a privilege to such communications?
This problem is exacerbated because quite often there’s a disjuncture between the person who communicates information regarding legal advice to a government lawyer and the government official much higher up who actually controls the privilege and makes decisions as to waiver. Conceptually, solicitor-client privilege simply does not make much sense in government.
Lastly, if solicitor-client privilege has protection under the Charter of Rights and Freedoms, how can governments benefit from it? The last time I looked, individuals had rights under the Charter, and governments had responsibility for protecting them.
Governments don’t have rights to equality under s. 15 or the rights to life, liberty, and security of the person under s. 7, nor can they enjoy Charter protection for solicitor-client privilege under some combination of s. 7, 8 or 10(b).
The American experience in fighting terrorism has revealed that legal advice played an important role in policy development. On the Afghan detainee file, Parliament should have full access to privileged documents in order to discharge its constitutional responsibility to hold government to account.
Adam Dodek is an associate professor at the University of Ottawa Faculty of Law. He can be reached at [email protected].
