No, it should not. That’s the best answer under existing doctrine and I think it is also the right answer.
In my previous post The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal Profession, I reviewed the BC courts’ rejection to a challenge to a non-lawyer being appointed to the top legal job in the BC government.
Since then, BC Premier Christy Clark appointed a lawyer (!) as Justice Minister and Attorney General (The Hon. Suzanne Anton).
Despite this, the trend of non-lawyers being appointed as AGs is not abating and the issue of whether Solicitor-Client Privilege covers their advice is likely to come before the courts eventually. Should Solicitor-Client Privilege protect advice from a non-lawyer Attorney General?
The Supreme Court adopted Wigmore’s definition of solicitor-client privilege in 1927:
Where legal advice of any kind is sought from a professional legal adviser, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.
It is difficult to see how a non-lawyer Attorney General could qualify as a “professional legal adviser”. The non-lawyer Attorney General is certainly not “a member of the legal profession”. While most Law Societies make incumbent Attorneys General ex-officio members of their governing bodies, this does make non-lawyer Attorneys General members of the legal profession any more than it makes lay benchers members of the legal profession. At best, a non-lawyer Attorney General is an ad hoc or temporary member of the legal profession.
As Madam Justice Stromberg-Stein held in Askin v. Law Society of British Columbia, 2012 BCSC 895, the Lieutenant Governor has an absolute and unfettered right to appoint whomever she or he wishes as Attorney General, whether or not that person is a lawyer.
It is anomalous for the chief legal adviser to the Crown in a province to be a non-lawyer. This anomaly seriously undercuts arguments about restricting the provision of legal advice to lawyers and limiting Solicitor-Client Privilege to lawyers. If the Premier and members of the Executive Council are permitted the benefit of being advised by a non-lawyer, why are ordinary citizens denied this right?
Under existing doctrine, it is difficult to reach any other conclusion other than that legal advice from a non-lawyer Attorney General is not encompassed by Solicitor-Client Privilege because a non-lawyer Attorney General does not qualify as a “professional legal adviser”. This does not mean that all the advice provided by a non-lawyer Attorney General will be subject to disclosure. Much of the legal advice that a non-lawyer Attorney General provides will be the subject of other privileges such as: crown privilege, litigation privilege and prosecutorial discretion.
In Canada, lawyers have zealous in asserting that only they can enjoy the benefit of Solicitor-Client Privilege. Courts have accepted their arguments that “the Privilege” (as I like to call it) should not apply to tax accountants, patent agents, notaries or paralegals, even if those professionals are providing the same advice that lawyers would.
It is both anomalous and unfair to deprive individuals of the protection of the Privilege if they seek advice from such non-lawyers but grant the Crown the same benefit when there is a non-lawyer Attorney General. In the first case, ordinary citizens may be compelled because of cost or circumstances to seek advice from a non-lawyer. In the second case, the Premier has chosen to install a non-lawyer in the position as the top legal adviser to the Crown.
At the end of the day, the situation of the non-lawyer Attorney General is truly sui generis. As I said in my previous post, the non-lawyer Attorney General is the white tiger of the legal profession.
It seems totally at odds with Solicitor-Client Privilege to assert that legal advice from the Crown’s legal advisor would not be privileged. However, it is also totally at odds with the position of the Crown’s legal advisor to have a non-lawyer hold that position.
Premiers have the power and the right to appoint non-lawyers as their chief legal advisers. But they should not expect that Solicitor-Client Privilege will shield the legal advice that they or members of the government receive from non-lawyer Attorneys General
 Wigmore on Evidence, McNaughton rev. ed. (Boston: Little Brown, 1961) vol. 8 at s. 2292.