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Sunday, November 27, 2022
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Please expain to me ::Exchange between convoy lawyer and AG David Lametti | Emergencies Act in...
Bloggers Notes : See Video from the 5th minute to the 8 min. especially......Please tell me if the Minister of Justice and the AG have a case to invoke " Solicitor- Client privilege" in this case ...is the Clerk and the Governor in Council truly represent clients ????
Please help me understand..
https://laws-lois.justice.gc.ca/eng/acts/j-2/page-1.html?wbdisable=true#wb-cont
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https://laws-lois.justice.gc.ca/eng/acts/j-2/page-1.html?wbdisable=true#wb-cont https://www.justice.gc.ca/eng/trans/transition/2019/tab9.html https://laws-lois.justice.gc.ca/eng/acts/j-2/page-1.html?wbdisable=true#wb-cont
TRANSCRIPT
record my name is Brendan Miller I'm
Council of Freedom Corp which is the
entity representing the protesters that
were in Ottawa in January and February
good to meet you 2022. first uh
Professor lamanna It's actually an honor
to meet you I've used some of your
articles in my litigation practice so uh
I'm a fan in any event uh sir we'll just
get right into this uh
as the attorney general and the Minister
of Justice your powers and duties come
from the Department of Justice act
that's correct
um and in part the common law so the
Department of Justice act in particular
with respect to the formal rules right
and under section four that act uh your
powers and duties include that you shall
see that the administration of public
affairs is in accordance with the law is
that correct that's correct and under B
it also has you as the uh
superintendents of all matters uh coming
within the administrative Justice
federally is that fair
that's fair there are nuances in terms
of how that plays out but yes that's
fair and then under Section 5B uh you'll
have the regulation and conduct of all
litigation for against the crown or any
department is that right that's correct
and that of course includes the
Department of Justice including the
legal team here today
uh indeed it does yes and you might have
I'm sure you've got it that in a ruling
yesterday uh commissioner roulo uh ruled
that department of justice nor the
parties were able to produce any legal
authorities uh for the goj to redact
records on the basis of parliamentary
privilege are you aware of that
um
I'm not particularly aware of that that
normally the Parliamentary privilege is
dealt with uh by others uh such as the
clerk and that's an ongoing discussion
so I'm not aware of the particular piece
of that rule so what Justice rule ruled
was that there's just no Authority for
redacting documents on the basis of a
parliamentary privilege so I'm wondering
if under your powers under Section 5 sub
D of the Department of Justice act if
you can direct that department of
justice release all the records that
they've provided in this proceeding with
the redactions for parliamentary
privilege unredacted Mr commissioner I
don't think that's an appropriate
question it doesn't suit the purposes uh
fall within the purposes for which
minister lametti is here to testify my
friend is well aware that you have made
a ruling and this is something to be
dealt with through the normal commission
processes and not through a witness very
well and uh from being a lawyer and a
law professor an attorney general I take
it you have an an understanding of
solicitor client privilege is that
correct a reasonably good one yes and of
course you also have an understanding of
section 39 of the Canada Evidence Act
and cabinet confidence is that fair
again a reasonably good understanding
now one of the documents produced by doj
in the record and I'm assuming it was
just produced to prove it was done is
the redacted legal opinion it's just the
document itself that was given to
Cabinet it's fully redacted but of
course you agree that uh cabinet
received a legal opinion about the
emergencies Act is that fair I will not
confirm or I'm going to object to this
question it gets into areas of solicitor
client privilege
okay
um now we have evidence in this
proceeding uh from the privy Council
Office and Miss Jody Thomas that the
government of Canada's position is that
of course as you said that section two
of the thesis act has a different
meaning in that it has a different scope
based in its reference in the emergency
Zach that's right I will neither confirm
nor deny that I I spoke giving giving an
opinion based on the text of the act
that is as I was careful to point out at
the time that that was uh neither a
waiver nor a confirmation of of any uh
advice that was given uh based on that
text and based on the facts that were
given I I took great care to not link
the two uh and I have I have no comment
on what Miss Thomas said I will leave
that to our lawyers uh to uh discuss in
final argument right and uh but you've
testified to the same thing you're going
to leave it to counsel
and I take it that as a lawyer in
preparing for your testimony here today
uh you reviewed all the relevant records
and documents that you had access to and
in your possession and power to obtained
Fair
I reviewed documents yes yeah
in the record in the proceedings and the
documents that you reviewed
um and the ones that we have available
unredacted
can you point to me of a document of a
record in this proceeding that existed
prior to the invocation of the
emergencies act where there's any
recording whatsoever or discussion that
there is a broader scope of section two
of the thesis act when it applied to the
emergencies act can you point me to a
document that says that Mr commissioner
I think that's an inappropriate question
there are thousands and thousands of
documents in the record
um it just it's unfair to the witness
I'll then
narrow it down
um was there any such document that you
reviewed in preparing for your testimony
here today that existed prior to the
invocation of the emergencies act that
it was discussed
that isn't subject to Sister client
privilege that it was discussed that uh
there was a broader scope of section two
as it applied in The Evidence Act once
again that's that's the question that's
asking me uh to effectively divulge
legal arguments
um I I remind my learned friend that it
is very odd to put a lawyer on the stand
I'm really here as a cabinet minister in
order to speak to facts I know and it is
it is uh to some extent uh an obligation
for me to try to answer questions as
best I can but you're asking me to
answer questions as a lawyer and it is
it would be remarkable to put a lawyer
up on the stand in the middle well I
understand sir and so again I just I
would like
the question answered did you see any
documents that talked about this
interpretation that you're discussing
that existed prior to the invocation of
the emergencies act again I'm going to
rely on on solicitor client privilege
there and Sir as the Attorney General of
the country of course you have ultimate
Authority both to and to advise on uh
when to waive solicitor client privilege
do not that's not true uh solicitor
client privilege is not mine to waive it
is up to the governor and Council to
waive right but you advise on that
I could advise on that yes right okay I
would remind Council that this is a this
is a right that the Supreme Court of
Canada has said as a
quasi-constitutional right it is
fundamental for good governance uh as it
is fundamental for any uh relationship
between a solicitor and a client that
the solicitor be able to give full and
Frank legal advice including all its
warts uh to a client
um in my case the client is is uh the
government of Canada and my cabinet
colleagues and the Department of Justice
needs to be able to tell truth to power
in order to do that I have to rely I
have a responsibility to rely on
solicitor client privilege and the
Supreme Court has effectively held that
this is one of the highest forms I'm not
going to ask you that question again
um but I take it uh you know
as an eminent law professor an academic
with many Publications you have
that between February 13th and 14th when
you were considering this decision
you didn't personally personally
believe that section two of the thesis
Act was any different
in the emergencies act did you
again I am you're asking me to give
legal advice sorry more advice that I
might have given uh to uh to the
governing Council no I understand but
I'm no I'm asking you what you
personally believe is a member of
cabinet I am I am in this case uh I
can't distinguish that because of the
the dates and the context that you've
given me you're asking me to apply facts
to law and and I I can't do that without
breaching solicitor client privilege I'm
not sure you've understood the point I
understand but sir
we all know as lawyers that sometimes we
give advice and it's not followed and
I'm not asking you to tell me
what you advised I'm asking you as a
member of cabinet
was it your personal belief that on
February 13th or 14th did you personally
believe that section two of the cesus
ACT had a different scope
in the emergencies Act
as you is now being argued was that your
personal belief Mr commissioner the
problem here is that asking that
personal belief of the Attorney General
of Canada inherently gets into matters
of solicitor client privilege I object
to the question
sir I'm asking his personal belief as
also a member of cabinet
I'm not sure I mean he's he's not a he's
there as attorney general as a member of
cabinet that's the problem I think okay
we're running into but again you
understand under section four of the
Department of Justice act it's your duty
to see that the administration of public
affairs is carried out in accordance
with the law
absolutely
and and if you were to ask me the the
factors that were going on the events
that were going on across Canada
that I deemed to be important as a
member of that cabinet I would ask I
would answer the question but you're
asking me to interpret facts through the
law which is the kind of advice an
attorney would give and I won't do that
right and I don't want to know about
what you would give as an attorney
um but with respect to what you actually
gave but when you're advising on whether
to waive solicitor client privilege what
factors do you consider
again I am
you're asking me a hypothetical question
I would in
probably virtually all cases advised
that it shouldn't be waived simply
because it is such an important
fundamental principle
but you can agree that it's been waived
in the past by the government
I only know of one example okay
I am and just dealing with section 39 of
The Evidence Act we just had that I'd
mentioned that you understand that of
course section 39 of The Evidence Act
applies to Cabinet confidences
uh would you read me the provision of
the actor show me the provision of the
ACT please it's I guess 38 39 mixed up
okay no it's please show me um I don't
have the ability to show it to you but
section 39 uh it speaks to uh confidence
is the The Queen's privy Council can we
agree about that
I really would like to see the text okay
again these there are a number of
numerous texts that I read on a
day-to-day basis and I would like to see
the text can you agree with me that it's
your understanding that
a cabinet confidence
is something or a record that's a
cabinet confidence or has a cabinet
confidence in it is is something that
cabinet would have knowledge of
that someone within cabinet would have
knowledge of the contents of the
document
cabinet cabinet confidence is is wider
than simply uh what is discussed that
cabinet and the
the the recorded version of those
but with that caveat
yes okay and so with the section 39
redactions that are in all the
correspondence between staffers
everything the staffers say cabinet
would have knowledge of that then
that uh that's again a that's a legal
opinion you're asking me to give on a
controversial Point thank you very much
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