Second Review of Amendments to the National Defence Act Pursuant to S.C. 1998, c. 35, s. 96

MPCC Supplementary Submission:
Access to Solicitor-Client Privileged Information

Further to our meeting on June 29, 2011, MPCC wishes to clarify one issue regarding MPCC access to solicitor-client privileged information. It is uncertain under the current law that individual MPs relying on legal advice in order to explain their conduct have the ability to waive privilege and provide access to the advice to MPCC. It is similarly uncertain that the CFPM has the ability to waive privilege, even when relying on legal advice received by MPs in order to dispose of a conduct complaint subsequently reviewed by MPCC. As a result, MPCC submits that it should be granted access to solicitor-client privileged information in those limited circumstances.

The legal position taken by the CF is that any privilege in legal advice provided to MPs in the course of their policing duties belongs to the Minister of National Defence, and that only he can waive the said privilege. While the issue is not free from doubt, there is jurisprudential support for the CF’s position on this point.

In Canada (Attorney General) v. Central Cartage Co. (1987),Footnote 1 Reed J. of the Federal Court held that

The client [in respect of legal advice provided by Department of Justice counsel] in its broadest sense is the executive branch of the government of Canada. At the apex is the Governor in Council including more particularly the Minister of Industry, Trade and Commerce. Entities such as the Foreign Investment Review Agency and the Interdepartmental Committee on International Bridges are branches of the client. One cannot parse the various branches or government entities so that legal advice given, for example, to the Department of Transport by someone whose usual position is providing legal advice to the Foreign Investment Review Agency is somehow less confidential because it is being given to the Department of Transport rather than to the Foreign Investment Review Agency itself.Footnote 2

Thus, Central Cartage supports the approach of identifying “the client” for the purposes of solicitor-client privilege at the highest level.

In R. v. Campbell (1999),Footnote 3 (provided in volume II, tab 40 of the MPCC Book of Authorities) the Supreme Court of Canada specifically determined that the client for purposes of possible waiver of solicitor-client privilege in legal advice provided to an RCMP undercover agent was the RCMP as an entity, rather than the individual police officer who obtained the advice.Footnote 4

It should be noted that, in contrast with other police forces, CF military police are embedded within the larger institutional hierarchy of the military. As such, the CF MP Group under the command of the CFPM has no distinct legal personality separate from that of the CF as a whole. Moreover, pursuant to section 4 of the National Defence Act, the Minister, among other responsibilities, “has the management and direction of the Canadian Forces”.

In contrast with the relevant statements in Central Cartage and Campbell, Nova Scotia courts have recently taken a more nuanced and flexible approach. Applying the legal concept of distributed government authority recognized in Carltona Ltd v. Works Commissioners (1943),Footnote 5 the Nova Scotia Supreme Court in Peach v. Nova Scotia (Department of Transportation & Infrastructure Renewal) (2010)Footnote 6 rejected the approach implied by Central Cartage and ruled that the authority of a government official to waive solicitor-client privilege was “coextensive with his authority to acquire the opinion in the first place.Footnote 7 Under this approach to client identification for the purposes of waiver of privilege, individual MP members might well be considered to have the authority to waive privilege in the legal advice provided to them.

In any event, it is unlikely that the decision of the Nova Scotia courts in Peach will cause the Office of the Judge Advocate General to rescind its longstanding legal position regarding waiver. The issue would ultimately have to be litigated and, considering the conflicting jurisprudence, the results of such litigation would be uncertain. As such, there is a real risk that in the context of NDA Part IV complaint investigations by the MPCC, access to legal advice provided to MPs will continue to be unavailable to the Commission, even where such advice is relied on by MPs to explain their conduct (and could serve the interests of MP subjects of complaints by supporting the reasonableness of their actions), or where it is relied upon by the CFPM in his disposition of the complaint in the first instance.

In order to prevent this potential unfairness to the parties to complaints, therefore, the Commission wishes to put forward the following alternative to proposal # 12 in its submissions:

MPCC proposes that NDA Part IV be amended so as provide that MPCC would have access to solicitor-client privileged information in cases where legal advice is relied upon by the subject of the complaint to explain his or her actions or where legal advice is relied upon by the CFPM in his disposition of the complaint.

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