The Power of Perspectives

The Canadian Bar Association

Kim Covert

How do you solve a problem like privilege?

January 22 2018 22 January 2018

 

Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, is a disproportionate response to a problem that doesn’t exist, the CBA said in a December letter to Treasury Board President Scott Brison and Justice Minister Jody Wilson-Raybould.

Representatives from the CBA and the Federation of Law Societies of Canada met late last year with staff from both ministers’ offices to discuss the bill, which the CBA believes takes the regressive step of allowing the Commissioners of Information and Privacy to pierce solicitor-client privilege to review the strength of claims of privilege in cases where heads of federal institutions refuse to divulge what they say is protected information.

“The Supreme Court has made it clear that, absent absolute necessity to achieve the end sought by the enabling legislation, records subject to solicitor-client privilege may not be disclosed,” the CBA said in the letter sent as a follow-up to the meetings.

“No case has been made of regular abuses or misunderstanding of the privilege exemption. We are unaware of any guidance that the Commissioners have offered for heads of institutions seeking to claim the exemption. There is simply no policy basis to proceed with the proposed amendments.”

Heads of federal institutions have the discretion to disclose privileged information, weighing factors such as the public interest. When they claim privilege, they must show that they were properly instructed and given legal advice. They must also claim privilege document by document, giving sufficient detail to support the claim. “Nothing under current law prevents the Commissioners from establishing procedural guidance for heads of federal institutions, and this information should suffice in all but the most exceptional situations.”

The Supreme Court noted in its 2016 decision in Alberta (Information and Privacy Commissioner v University of Calgary) that in the jurisprudence developed over the past 20 years, solicitor-client privilege “has acquired constitutional dimensions both as a principle of fundamental justice and a part of a client’s fundamental right to privacy.” It has moved well beyond the framework in place when the Access to Information Act came into force in 1983.

The bill would undermine the proper working of government institutions, the CBA says – it could have a chilling effect on disclosure by federal institution clients, or worse, could result in a situation where advice is sought and received, but not recorded, in order not to leave a record in case one is later requested.

“We strongly believe that assessments about privilege claims should be made by the judiciary,” the CBA says, noting that the people holding the offices of Information or Privacy commissioner are not required to have any special expertise in the area of privilege, nor are they impartial adjudicators.

“We believe the measures are unnecessary, will impair the functioning of government institutions, and will have a negative spillover effect on privilege in other contexts.”

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