With the recent SNC-Lavalin matter, much has been undisclosed as a result of the concept of solicitor-client privilege. The former Attorney-General, the Hon. Jody Wilson-Raybould, has not been able to speak freely about her perspective in the matter due to her being the chief lawyer for the Government, which has, to date, claimed that any discussion between her and other members of the Government, including the Prime Minister, fall under solicitor-client privilege and, therefore, are not to be disclosed.
As Ms. Wilson-Raybould is expected to appear before the House of Commons Justice and Human Rights Committee in the coming days, the assertion that she is bound by solicitor-client privilege will be challenged by a different kind of privilege – parliamentary privilege – for which the Parliament of Canada (and the House of Commons in particular) have certain privileges that are accorded to them that allow for different rules than apply to other institutions, including courts.
Though never put to judicial review, the law in Canada seems to be clear that the rights and privileges of Parliament (which includes its committees) allows for the questioning of Ms. Wilson-Raybould on matters that would otherwise be seen as falling under solicitor-client privilege. Indeed, the law is clear that she must answer such questions and cannot refuse to do so because of solicitor-client privilege. For to do so would place her in contempt of Parliament.
To be clear, the Supreme Court of Canada has stated that solicitor-client privilege is a “principle of fundamental justice in Canadian law”. It has been described as “quasi-constitutional” and not to be violated, except in very rare circumstances. This is a result of centuries of the development of the rules that protect communications between a lawyer and a client and are seen as fundamental to rights of an accused to be shielded from the state’s overreach of its power and authority.
On the other hand, there is parliamentary privilege, which has also developed over the centuries. It is defined in Canada as:
Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.
The Supreme Court of Canada has stated that parliamentary privilege is constitutionally protected and where it is found to be linked to the fundamental discharge of its duties, it even overrides the Canadian Charter of Rights and Freedoms.
More recently, the Supreme Court of Canada has stated that parliaments in Canada do not have the absolute right to claim privilege so as to avoid the courts’ jurisdiction to review their decisions. The Court created a “Necessity Test” to determine if privilege being claimed by a parliament in Canada is fundamentally linked to its core functions. In Vaid, the Court stated it as such:
In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. (emphasis added)
Where a parliament can meet the necessity test, the courts are to not interfere and have no jurisdiction to hear a matter with regard to their application of their privilege. Therefore, the judiciary in Canada provides great deference, though not absolute, to the legislative branch in its use of parliamentary privilege, even if other constitutionally recognized rights may be impinged.
How does this apply to the case at hand and Ms. Wilson-Raybould’s expected appearance before the Justice Committee?
In a nutshell, it means the Government’s right to solicitor-client privilege is not applicable to testimony before a House of Commons committee. A witness before such a committee cannot refuse to testify or answer specific questions because it might infringe on that solicitor-client privilege.
Parliamentary privilege includes, as noted by the Supreme Court of Canada, matters that are directly connected to the functions of a parliament. The Court has gone as far as to specifically list as one such function holding the government to account. The Justice Committee inquiry into the SNC-Lavalin matter is very much directly a government accountability function of the Parliament. Therefore, the right to freely question a witness to gather evidence for such an inquiry is a parliamentary privilege that meets the necessity test and the courts have no jurisdiction to intervene.
It is also clear that where parliamentary privilege is applied, it can result in the Parliament asking for and receiving information and evidence that otherwise might be privilege and not allowed before a court.
It will up to the Justice Committee, and, ultimately the Speaker, to uphold the privileges of the Committee and individual MPs who are members of the Committee to ask and receive answers that may relate to otherwise privileged information. But the law in Canada is settled and clear – Ms. Wilson-Raybould must answer any questions put to her, even if it would violate solicitor-client privilege.
It is now up to the Justice Committee to enforce the privileges granted to Parliament so we can get to the bottom of what really happened in the SBC-Lavalin matter.
 Lavallee, Rackel & Heintz v. Canada (Attorney General)  3 S.C.R. 209
 Alberta (Information and Privacy Commissioner) v. University of Calgary,  2 SCR 555
 Canada (House of Commons) v. Vaid,  1 SCR 667
 New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),  1 SCR 319