Adam Dodek is a member of the University of Ottawa's Public Law Group and the author of the new book Solicitor-Client Privilege.
Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government's new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country's prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill's constitutionality.
Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.
Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.
However, this right of solicitor-client privilege applies to the client, and the client – in this case the government – can waive that right. Rarely have governments chosen to do so. In this, the Harper government is no different from its predecessors. If anything, it is better. It opened the door to the musty secret world of legal advice in the Nadon appointment when it released the legal opinion provided to the government by former Supreme Court of Canada justice Ian Binnie. Kudos to Mr. MacKay and the Harper government for doing so. The release of the Binnie opinion facilitated a vibrant debate about the legality of the Nadon appointment. That the Supreme Court of Canada ultimately decided against the government's opinion is beside the point.
The point is that the government released a legal opinion and the sky did not fall. I have argued that government should release legal opinions because it is in the public interest to do so. Governments exercise great power in enacting laws or in making appointments and they do so based on legal advice that authorizes them to exercise such power. They should demonstrate the basis for the exercise of that power.
This assertion frightens many people in government, especially lawyers. I have had great debates with some government lawyers about this who fear a "chilling effect" if their legal advice is or can be released. I don't buy that argument. First, all public servants have a duty to provide "fearless advice." Lawyers in government are no different. Second, other countries release their government legal advice without the state collapsing.
In the United States, you can find legal opinions from the Department of Justice's Office of Legal Counsel on a special website. The Attorneys General of each of the 50 states release legal advice, to varying degrees. In Britain, the public inquiry in to the Iraq War sifted through the various legal advice. It is not clear why legal advice in Canada should be a special case.
This government is uniquely placed to lift the veil of secrecy that shrouds government legal advice. It came to power in 2006 promising Canadians more accountability. Releasing some legal opinions would be consistent with this pledge. On Bill C-36, Mr. MacKay is surely correct: a legal challenge is inevitable. The government should place its legal cards on the table now.