Parliamentary Privilege / Rights of Members

Freedom of speech: solicitor-client privilege in the context of parliamentary privilege

May 6, 2019

Debates, pp. 27405–6

On March 22 and April 4, 2019, Erin O’Toole (Durham) rose on a question of privilege regarding solicitor-client privilege in the context of parliamentary privilege. Mr. O’Toole alleged that the privileges of the House had been breached by the decision of Justin Trudeau (Prime Minister) to only partially waive the solicitor-client privilege affecting the former minister of justice and attorney general, Jody Wilson-Raybould (Vancouver Granville). In Mr. O’Toole’s view, invoking solicitor-client privilege impeded his parliamentary duties and his role in overseeing government business because he was unable to obtain the information he needed to consider the facts in the SNC-Lavalin case. Mr. O’Toole stated at multiple points that parliamentary privilege is absolute and therefore outranks solicitor-client privilege. He asked the Chair to confirm the primacy of parliamentary privilege so that Ms. Wilson-Raybould could speak freely in the House without being bound by solicitor-client privilege. The Speaker took the matter under advisement.^[1]

Resolution

On May 6, 2019, the Speaker delivered his ruling. While in his opinion the matter raised was not a question of privilege, he reminded the House that members who participate in the proceedings of the House and its committees are protected by the privilege of free speech. Ms. Wilson-Raybould chose to uphold the convention of solicitor-client privilege, and it was not up to the Chair to question or pass judgment on the situation at hand or to invite a member to speak on an issue. In his view, forcing a member to speak would not be consistent with the rules and practices of the House.

Decision of the Chair

The Speaker: I am now ready to rule on the question of privilege raised on March 22 and April 4, by the hon. member for Durham concerning solicitor-client privilege in the context of parliamentary privilege.

In his intervention, the member alleged that the Prime Minister used solicitor-client privilege in an inappropriate way by allowing only a partial waiver to the former attorney aeneral, the member for Vancouver Granville, in respect to the SNC-Lavalin affair and the Shawcross doctrine. Stating that there has been confirmation that parliamentary privilege is absolute and supersedes solicitor-client privilege, he contended that without a full waiver of solicitor-client privilege, his ability to fulfill both his individual and collective functions has been impeded.

Rather than asking the Chair to find a prima facie case of privilege, the member asked the Chair to reaffirm that parliamentary privilege, being absolute, supersedes solicitor-client privilege. He also wanted me to take the extraordinary step of inviting the former attorney general to speak in the House, assuring her that she would not be subject to the constraints of solicitor-client privilege.

As the member himself acknowledged, this is not a question of privilege, but as the member raised other issues, I will address the points raised.

Any member participating in the deliberations of the House and its committees is protected by the privilege of free speech; the same is true for witnesses appearing before committees. Whether this accepted principle was somehow diminished or even overturned by solicitor-client privilege, it must be recognized that the former attorney general decided to respect that convention. The Chair is not in a position to either question or pass judgment on this.

The Chair is also limited in its authority to invite members to speak on particular issues. It is not for me as Speaker to invite the former attorney general to speak, as the member for Durham suggested. This would take us far from our rules and practices—too far, I would suggest.

I thank all hon. membersfor their attention.