Claiming Privilege in the Public Sector

The issue of privilege in the public sector has dominated headlines for the past few months. The SNC-Lavalin affair has placed before the public issues of privilege, Cabinet confidentiality, under what circumstances either can be waived, and the relationship between the roles of Minister of Justice and Attorney General of Canada. Criminal allegations of breach of trust of public office against Vice-Admiral Norman raise the issue of when and how privilege applies within a government setting. 

In timely fashion, the OBA’s Public Sector Lawyers section hosted a panel entitled “Claiming Privilege in the Public Sector” on April 25, 2019. In addition to an always-useful refresher on the principles of solicitor-client and litigation privilege, the three-person panel explored the application of privilege to privacy, how to manage privilege within a crown corporation or agency, and the interplay between privilege and Cabinet privilege and Parliamentary procedures. A unifying theme of the panel was how to identify when privilege applies, how to take steps to protect it, and when it can be waived, voluntarily or otherwise. With respect to recent headlines, the panel provided a guide to a complicated issue that affects us as public sector lawyers and members of the Canadian public.