Mr. Speaker, I hate interrupting my colleague from Carleton, but in accordance with Standing Order 48(2), I filed appropriate notice with respect to a question of parliamentary privilege that I wish to bring at this time.
I have spent considerable time researching this important point for the chamber, for yourself, Mr. Speaker, and for Canadians who may be watching. There are two aspects to parliamentary privilege that I feel are both touched upon with respect to the subject of my question of privilege and my recommendation.
First, there is the individual privilege of every single member of this chamber, including opposition, to fulfill our challenge function, our parliamentary role of holding the government to account, but as well there is the collective privilege of the chamber, which represents all of Canada. All members should be able to deliberate, legislate and fulfill our parliamentary functions, whether on the front bench of the government side or in the shadow ministers' bench or in the far corners where some former Liberals now sit.
Parliamentary privilege has both an individual and a collective aspect. Our collective privilege and my individual privilege has been impeded by the Prime Minister's partial waiver of privilege with respect to the former attorney general, the current member for Vancouver Granville.
My question of privilege will outline a recommendation to you, Mr. Speaker, on my behalf and on behalf of this chamber. I remind my colleagues that parliamentary privilege is absolute and has been, as a defining feature going back to the 1600s, to allow parliamentarians to fulfill those functions I outlined at the beginning.
As Canada was created in 1867, the Constitution Act incorporated parliamentary privilege and its supremacy as part of our both written and unwritten Constitution. This was affirmed by the Supreme Court of Canada in the New Brunswick Broadcasting Co. decision decades ago.
The point I am raising here is that on several occasions, the most senior officials presiding over this House, helping us fulfill our duties as members, individually and collectively, have confirmed that privilege outranks or supersedes solicitor-client privilege. That is going to be the critical element of my suggestion to you, Mr. Speaker, in response to my question of privilege.
In fact, the first quote I would refer to you and our table officers is a quote from the parliamentary law clerk and parliamentary counsellor, Rob Walsh on November 4, 2009, when he said this about balancing solicitor-client privilege considerations alongside the privilege of parliamentarians:
...I feel I must respond to what Brigadier-General Watkin was just saying about solicitor-client privilege. What he's saying relative to the obligation on lawyers as lawyers, in the usual context in which lawyers operate, is true.
Solicitor-client privilege, in my view, is an important privilege. It is one the committee obviously should respect but not necessarily be governed by. It is a principle that relates to the legal rights of people who are in that solicitor-client relationship. It's all designed for the benefit of the client, not the lawyer. It is to protect the client's rights from being prejudiced by the wrongful disclosure of information exchanged with a lawyer.
But that's in the context of legal rights, legal proceedings. There are no legal rights at issue here—
That is with respect to parliamentary privilege and the rights of parliamentarians. I will continue:
These are not legal proceedings. These are parliamentary proceedings. It is, in my view, open to the committee to seek answers from a lawyer appearing as a witness, notwithstanding this principle....
That is from the former law clerk of this chamber, looking at the ability for the executive branch of government to preclude Parliament from fulfilling its function on the grounds of solicitor-client privilege.
This determination by the former law clerk of Parliament was considered by Speaker Milliken, in your chair many years ago, in his April 27, 2010, decision with respect to the Afghan detainees. He said:
It is the view of the Chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would in fact jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts.
This matter has been considered in recent memory by the Speaker, on advice of Mr. Walsh, as law clerk, confirming that solicitor-client privilege consideration is an important privilege and, I say this as a lawyer, does not outstrip the primacy of Parliament and the primary function of Parliament to fulfill the individual and collective roles we have as parliamentarians. Therefore, solicitor-client privilege cannot bar the release of information. This has been confirmed in other Parliaments in Westminster where parliamentary privilege outranks court injunctions. Orders of the court rank below the importance of parliamentarians to have their privileges recognized and respected.
This has been reiterated when we look at the underlying principles of solicitor-client privilege. This is important. Whether it is the Daughters of the Vote yesterday or Canadians, I do not think we have ever had a more fulsome discussion of solicitor-client privilege in the history of our country. Let us look at its underpinnings. It is not absolute as parliamentary privilege is.
If we look at the Descôteaux decision of the Supreme Court of Canada written by Justice Lamer before he was chief justice, solicitor-client privilege can be nailed down into three elements. The first is that solicitor-client privilege can be raised when communications are likely to be disclosed to prevent that disclosure. The second is that, unless otherwise provided, that prevention of disclosure and the extent of limiting disclosure should be decided leaning in favour of the privilege, but that is not absolute. The third is that, when the law provides, “the decision to do so”, meaning disclosure, “and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.”
In our case, the enabling legislation is our Constitution. It is the supremacy of Parliament going back before 1867—