What a contrast there was between lawyer Keith Wilson, who testified before the Public Order Emergency Commission on November 2, and David Lametti, Minister of Justice (also a lawyer) who testified on November 23..Wilson had obtained permission from his client Freedom Corp (which includes Tamara Lich, Chris Barber, Tom Marazzo, Danny Bulford and others) to waive solicitor-client privilege. The waiver allowed him to make full public disclosure of everything that went on during the Ottawa convoy and protest, including conversations he had with his clients and advice he had given them. They obviously felt they had nothing to hide and that justice would be better served through honesty than through secrecy..Lametti, on the other hand, trotted out his assertion of solicitor-client privilege and his refusal to waive it even before he was sworn in, via his Government of Canada lawyer Andrea Gonsalves. He then invoked privilege several times while under cross-examination..The very purpose of the inquiry is to find out why the government invoked the Emergencies [War Measures] Act and whether it was justified in doing so. Clearly, the decisions of the various cabinet members had been made after consultations with the government’s in-house lawyers. Therefore, it would be a matter of enormous public interest to know what legal analysis and advice had been given by those lawyers. Yet this is the very information that Lametti deliberately concealed by claiming privilege..In other words, his invocation of privilege thwarted the purpose of the inquiry..This did not escape the attention of Commissioner Rouleau, who said to Minister Lametti: “But I’m just trying to understand. The job that the Commission is to do is to look at the decision by cabinet, and as was mentioned by commission counsel, there’s an issue of the reasonableness of it. And I’m having a little trouble…how we assess reasonableness when we don’t know what they were acting on. And do we just presume they were acting in good faith, without knowing the basis or structure within which they had make that decision? And you know of what I speak.”.Oh yes, Lametti knew perfectly well. The Commissioner was speaking of the legal advice Lametti had received, and of his intransigence in refusing to disclose it. Yet still he refused..Lametti testified that the “client” in his claim of solicitor-client privilege was the Government of Canada. But isn’t the Government of Canada supposed to be an agent of the people, acting in our collective best interests? The real client of the government’s lawyers should be considered to be the general public. After all, it is the general public who pays those lawyers’ salaries. Why should we not be able to learn what advice counsel gave us through our agent, the government?.In ordinary legal proceedings, Canada relies on what’s known as 'the adversarial system' as the best way of coming close to discovering truth. A party to a lawsuit, or the defendant in a criminal charge, is entitled to obtain confidential legal advice which needn’t be disclosed to the opposing side. That’s the privilege. The rationale that has long been given is that without the assurance that their confidences would be kept, litigants would not dare to get legal advice at all, or would hide crucial parts of the story even from their own lawyers, which would hamper the justice system..If we, the people of Canada, are not the clients of the government lawyers we pay for, then what exactly are we — the adversary? It certainly felt that way back in February, when the secret legal advice was rendered. It definitely feels that way now, when the trucks are long gone from Ottawa, but we’re still not allowed to hear the lawyers’ formal opinion on whether or not the Emergencies Act should have been invoked..The fact that Lametti wants to hide the legal advice leads logically to the inference that granting knowledge of it to the public (i.e., to “the adversary”) would undermine the strength of the government’s case..Note that the “good faith” mentioned by Commissioner Rouleau may become crucially important for later lawsuits involving the payment of damages. Section 47 of the Emergencies Act protects the ministers and agents of the crown from personal liability for the damage they might have caused by declaring an emergency, but only if they acted in good faith..It seems to me that we taxpayers have been paying for the government’s lawyers to give advice to Minister Lametti and the other members of cabinet for their personal protection from civil liability. I would suggest that Lametti and friends have received a private, personal benefit that should be disclosed under parliament’s Conflict of Interest Code..Rack up another violation of ethics for Prime Minister Trudeau. He’s accumulating quite a long list.
