In recording her Dec. 19 conversation with Privy Council Clerk Michael Wernick without his consent, Jody Wilson-Raybould stepped into a tricky legal area.
The former attorney-general and justice minister acknowledges in documents presented to the Commons justice committee that her action was “extraordinary and otherwise inappropriate,” and something she has not done before or since. But she said she had a strong suspicion that the political interference she says she had experienced would escalate further, and she wanted an accurate record.
In her view, Mr. Wernick conveyed implicit threats during the conversation − that unless she carried out the Prime Minister’s firm wishes to support a negotiated settlement for SNC-Lavalin, there would be consequences for her. Mr. Wernick has denied making threats.
While it is legal in Canada to record a conversation in which one is a participant, law societies have rules barring lawyers from recording their conversations with a client or other lawyers.
The purpose of the rule, says Paul Schabas, the former treasurer of the Law Society of Ontario, is to ensure that clients and opposing lawyers can speak with complete frankness to lawyers.
“The idea is to promote a comfort zone,” he said in an interview.
But was she acting in a lawyer-client capacity when talking to Mr. Wernick? (Mr. Wernick is not a lawyer, so that part of the prohibition does not apply.) Gavin MacKenzie, also a former treasurer of the law society, with a practice specializing in lawyers’ professional responsibilities, says he doesn’t think so.
“It doesn’t sound like a lawyer-client relationship. It’s not as if he was coming to her as a representative of her client, the government of Canada, seeking legal assistance.” Instead, he said, Mr. Wernick was giving her a message about what her failure to support a negotiated settlement for SNC-Lavalin might mean for her.
But Jonathan Denis, a former Progressive Conservative attorney-general of Alberta, disagreed. “As the attorney-general, you’re the lawyer for the government; any time you’re acting for the government, I would argue the obligation applies.”
Mr. MacKenzie said he is aware of just one precedent in Canada in which a lawyer was disciplined for recording a conversation. It ended with a reprimand. The offence is not considered as serious as, for instance, a conflict of interest or financial impropriety.
As for the ethics of what she did, Mr. MacKenzie said, “you could say in those circumstances it may be ethical to tape the conversation because of her fear of consequences.”
He added that those such as the Prime Minister and others, who say they were acting appropriately, may regard it as unethical.