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William Watson: Solicitor-client privilege? How about people-truth privilege?

Emergencies-Act-Timeline 20221013
Emergencies-Act-Timeline 20221013

Does it seem strange to anyone else that during the hearings into the use of the Emergencies Act we have been allowed to read the unredacted texts of several key federal ministers joshing about how many tanks they might need to clear the truckers from downtown Ottawa but not the written legal opinion the government presumably was presented with when deciding whether to give itself extraordinary peacetime powers — a legal opinion whose existence the government, quite ludicrously, neither confirms nor denies? As they used to say on the hit 1980s British television series “Yes, Minister”: “You might think so; I couldn’t possibly comment.”

By the way, the joking among ministers was the most reassuring thing I’ve heard from this government in its now seven full years in power. Its ministers’ true selves ordinarily are hidden behind an impenetrable veil of talking points. The ministers caught joking, even joking about tanks, are clearly recognizable as real human beings, which are the kind of beings you want in charge of your government. My employment experience is probably less wide-ranging than most people’s, but in the two industries I’ve worked in, academia and journalism, people do joke with one another (though in journalism more than academia). They especially joke during stressful times. The people to avoid are those who don’t joke. They’re likely to snap first.

That the joking has been made public, while reassuring for its humanity, is in a way regrettable. If it becomes widely understood that your text messages and emails may become public, you’ll be much more careful about what you put in them. People do realize that already, of course. For some time now the rule of thumb has been not to put anything in an email or text that you wouldn’t want to appear on the front page of the newspaper, where the whole world may see it. These ministers apparently had forgotten that rule. I bet they’re not joking in their texts anymore. What that means of course is that any meaningful communication will be done by phone and when phone records and recordings become similarly compromised we’ll all have to meet on park benches to whisper our real thoughts to each other. As in George Orwell’s “Nineteen Eighty-Four.”

As for the Emergencies Act legal opinion that may or may not exist, does anyone doubt that if the government were in possession of an opinion that said “Yessir, you betcha, trucks occupying downtown Ottawa is exactly what they had in mind when they wrote the Emergencies Act,” the government would have found some way around lawyer-client privilege to put it out in its full, unredacted glory?

Lawyer-client privilege is clearly a key legal principle. I’m not a lawyer but have read since last week’s testimony that in the last 20 years or so, the Supreme Court has elevated it to the charter-like status of a “principle of fundamental justice.” Good for the court. The accused in a trial needs to able to talk frankly with his or her lawyer without fear that what is said eventually will be dragooned out of the lawyer and used as evidence. That is fundamental.

If in his life as a private citizen, Justice Minister David Lametti had been charged by the police with, say, stealing a tow truck, he should have the right to explore with his lawyer all the ins and outs of his legal situation without worrying that what he says, which may involve what a judge or jury would regard as damning evidence, will be used against him. If that worry existed, his discussions with his lawyer would be of a quite different character. All this is especially important when a person’s liberty is at risk — i.e., in a criminal trial — but it’s also important, the courts have repeatedly affirmed, in civil cases where what’s at stake is “merely” money or reputation.

On the other hand, fundamental rights may conflict, in which case, unless our judges are Solomons, a choice has to be made. In the case that may be what prompted Lametti’s refusal to concede even that a legal opinion exists, the RCMP ran a successful reverse-sting operation, selling drugs to drug dealers, and in court assured anyone worried about the dubious legality of such operations that it had a legal opinion supporting its actions. Aha, said the drug dealers, let’s see it! And the Supreme Court ultimately overrode the RCMP’s solicitor-client privilege and did let the defendants see it. Their fundamental right to defend themselves was stronger, the court decided, than the government’s right to confidentiality with its lawyers.

Yes, if the government’s pre-Emergencies Act consultation with its lawyers were published, that might reduce the candour of any advice they give in future, since they would be aware their counsel might become public. But, in the other tray of the scales: the government is not a defendant in either a criminal or civil case, so its privilege is not as consequential; whether or not to invoke the Emergencies Act has come up only once in 37 years, so any chilling effect would be limited; and, most importantly, the other right in question — the Canadian people’s very strong interest in knowing the truth about what its government was thinking when it invoked extraordinary powers even for what turned out to be a short time — is pretty fundamental, too.

Financial Post