Date: 20071005
Docket: T-531-06
Citation: 2007
FC 1024
Ottawa, Ontario, October 5th
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
INFORMATION
COMMISSIONER OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
matter deals with the relationship between the Information Commissioner of
Canada (the Commissioner) and the Attorney General of Canada (the Attorney
General) when Crown servants, represented by lawyers from the Department of
Justice, are compelled to give evidence before the Commissioner in the course
of an investigation of a complaint made under the Access to Information Act,
R.S.C. 1985, c. A-1 (the Act). It raises questions about the
scope of the Commissioner’s authority – particularly, whether the Commissioner
improperly ordered confidentiality orders against government witnesses and
their Department of Justice counsel.
[2]
The
Commissioner is named as respondent as it is his decision (or that of his
delegate) that is under review and, in these circumstances, there is no other
reasonable respondent. The alternative would be to name the Attorney General of
Canada as the respondent pursuant to Rule 303(2) of the Federal Courts Rules,
SOR/98-106 (the Rules). However, as noted by this Court in Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 [the Hartley
decision], that would lead to the absurd result of having the Attorney General
as both applicant and respondent. To avoid that result, and as both parties are
in agreement as to the standing of the Commissioner, I therefore grant leave as
requested in the notice of application for the Commissioner to be the
respondent in this application.
BACKGROUND
[3]
The facts
underlying this application are not in dispute. The Commissioner commenced an
investigation against the Department of Indian and Northern Affairs Development
(DIAND) in respect of a request made under the Act. The person making
the request sought a copy of a report by a management consulting firm that was
to be provided to DIAND. Upon the refusal of DIAND to provide the report, the person
who made the request lodged a complaint with the Commissioner, pursuant to section
30(1) of the Act. The Deputy Information Commissioner (the Deputy
Commissioner), Mr. Alan Leadbeater, began an in camera investigation.
[4]
During the
course of his investigation, the Deputy Commissioner subpoenaed a number of
government employees to provide evidence under oath. Counsel from the
Department of Justice accompanied the individuals to the examinations. At the
beginning of the first hearing, on February 7, 2006, Mr. Leadbeater raised his
concern with respect to the fact that counsel for the Department of Justice were
representing both the witness and the Crown. He made the following comment:
This is an in camera process and it
causes some bit of difficulty when we have a Justice counsel representing a
witness because we feel that there are two people in the room then; there’s the
witness and then there’s the witness’s employer is in the room. Also it’s
compounded a bit by the fact that the Justice counsel represents multiple
witnesses.
(Transcript of Hearing of Andrew Lieff,
Applicant’s Record, p. 26)
[5]
As a
result of this concern, the Deputy Commissioner issued two sets of
Confidentiality Orders. The first set was directed at individual witnesses
(Orders (Witnesses)) and provided that each witness:
[…] shall not disclose the questions
asked, answers given and exhibits used during his/her appearance before the
Deputy Information Commissioner on [date], in any manner to anyone until the
taking of evidence by the Deputy Information Commissioner from other employees
of Indian and Northern Affairs Canada is complete, except to his/her counsel …
(Applicant’s Record, pp. 12-15)
[6]
The second
set of Confidentiality Orders was directed at counsel representing these
individual witnesses (Orders (Counsel)) and provided that each counsel:
[…] shall not disclose the questions
asked, answers given and exhibits used … during [the witness] testimony before
the Deputy Information Commissioner on [date], in any manner to anyone, except
on the lawful instruction of [the witness].
(Applicant’s Record, pp. 16-20)
[7]
Counsel
representing the first witness immediately raised an objection to the
Confidentiality Orders, and drew to the attention of the Deputy Commissioner the
Hartley decision of this Court. Counsel read to the Deputy Commissioner
numerous excerpts from that decision, and conclude that there was no need for
these Confidentiality Orders since his clients were professionals prepared to
give an honest and full account, and that they had already discussed this issue
at length in a preliminary manner: Applicant’s Record, pp. 30-38. The same
objection was made by counsel at the commencement of the examination of all
four witnesses.
[8]
At the end
of these submissions, the Deputy Commissioner indicated that he would reserve
and give a written decision later. In the meantime, his Confidentiality Orders
were to remain in effect: Applicant’s Record, p. 39.
THE IMPUGNED DECISION
[9]
In his
written reasons dated February 21, 2006 concerning the objection to the confidentiality
restrictions imposed on the witnesses (the Decision (Witnesses)), the Deputy
Commissioner essentially confirmed the Orders (Witnesses) but considering that
the oral evidence of the associated witnesses had been completed, rescinded the
Orders. He stated:
Having taken this matter under
advisement, it is my conclusion that the attached orders are necessary to
protect the integrity of the investigation and are minimally invasive of the Charter
right of free expression. I conclude from the nature of this complaint and
investigative evidence received prior to the issuance of the orders that the
investigation process should take into account the possibility of tailoring of
evidence. The orders are of limited duration and were made in the context of
gathering evidence from witnesses associated, or formerly associated, in the
same workplace.
Given the purpose for which the orders
were made, and given that the oral evidence of the associated witnesses has
been given, the orders attached of confidentiality issued on February 7 and 8,
2006, with respect to Ms. C. Davis, Ms. M.D. Chartrand, Mr. A. Lieff and Ms. M.
Pesant, are hereby rescinded and, from this date, are of no further force and
effect.
[10]
In another
set of reasons, also dated February 21, 2006, concerning the objection to the
confidentiality restrictions imposed on counsel for the witnesses (the Decision
(Counsel)), the Deputy Commissioner denied the motion to rescind the Orders. He
wrote:
Having taken this matter under
advisement, it is my conclusion that the orders are necessary, appropriate and
lawful. In particular, in light of the requirements of section 35 of the Access
to Information Act, I consider it necessary by these orders to establish
the primacy of the individual solicitor-client relationship between a witness
and his counsel on the one hand, over the solicitor-client relationship between
the counsel and the Attorney General of Canada in his role as representative of
the Crown, and over the relationship between the counsel and their other
witness clients, on the other hand. This distinction is vital to ensuring that
witnesses are not put in the position of giving their evidence in the presence
of their employer’s representative or in the presence of other witnesses also
represented by their counsel. Moreover, the witness clients are free at any
time, from this date, to waive solicitor-client privilege and, thus, authorize
their counsel to disclose their evidence, in whole or in part, to others.
For these reasons, I deny the motion to
rescind the attached orders.
[11]
On March
23, 2006, the applicant applied for judicial review of these decisions and
sought an order setting them aside as being in excess of the Commissioner’s
jurisdiction. The Attorney General also requested, pursuant to Rule 317 of the Rules,
that the Commissioner send a certified copy of the following material:
1. All material which the Information
Commissioner’s delegate considered in issuing the decisions of February 21,
2006, including, but without limiting the full and general request above, all
correspondence, internal briefing notes, emails and other related documents,
records, impressions, advice or communications; and,
2. All portions of the transcripts of the
proceedings before the Information Commissioner’s delegate of February 7, 2006,
February 8, 2006 or any other date relating to the issuing of the decisions of
February 21, 2006.
[12]
The
Commissioner objected to the applicant’s request, pursuant to Rule 318 of the Rules,
except for portions of these transcripts of proceedings relating to
representations made and reasons given with respect to the originating
confidentiality orders and which are relevant to the decisions made on February
21, 2006. It was alleged that the remaining portions of the transcripts
requested by the applicant are irrelevant or otherwise privileged under the Act
by a statutory duty of secrecy and privilege relating to: a) the secrecy of the
investigation of these complaints (section 35); b) the confidentiality and the
inadmissibility of any evidence, information and representations received or
made during the investigation of this matter and of their existence (sections
36-37); c) the fact that the Commissioner is not a competent or compellable
witness with respect to the information requested by the applicant (sections 63
and 65); d) the statutory prohibition for the Commissioner to disclose any
information and material as requested by the applicants, except when it is
necessary for the conduct of his investigations (sections 61, 62 and 64); e)
the common law “deliberative secrecy” privilege; and f) the solicitor-client
privilege. These claims of privilege by the Commissioner were not challenged by
the applicant.
[13]
A few days
before the hearing, the Commissioner filed a motion for an order granting leave
to file a supplementary affidavit and directing that affidavit to be filed on a
confidential basis, with a public version (with the exhibits redacted) for the public
record. The additional documentation appended as exhibits to this supplementary
affidavit consists of letters between main counsel for the witnesses and the
Deputy Commissioner generated in the course of the Commissioner’s investigation.
This correspondence postdates the filing of the parties’ respective memoranda
of fact and law. According to the respondent, this additional documentation
would illustrate whether the witnesses’ counsel have been authorized to
disclose the witnesses’ evidence. The Commissioner claims the letters, to the
extent that they may have been protected by solicitor-client privilege, have
been communicated to him by the Attorney General. He further argues that they
are directly relevant to determining whether or not this application is moot. In
light of the confidentiality requirements imposed by the Act, the
Commissioner nevertheless submits that the material sought to be filed should
be made subject to an order that seals it from the public record.
THE ISSUES
[14]
This
application for judicial review raises three preliminary questions as well as
two substantive issues. They can be framed as follows:
a.
Are the
affidavit and supplementary affidavit of Ms. Poirier filed by the respondent
admissible?
b.
Is this
judicial review application time barred?
c.
Is the
relief sought moot?
d.
Was the
Commissioner empowered to issue the impugned Orders and Decisions? More
specifically, do they impermissibly interfere with the solicitor-client
privilege?
e.
Do the
impugned Orders and Decisions violate the right to freedom of expression as
guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms
(the Charter) and if so, is this restriction justified pursuant to section
1 of the Charter?
ANALYSIS
a) The admissibility of Ms. Poirier’s
affidavits
[15]
The two
affidavits sworn by Ms. Poirier, a paralegal with the Office of the
Commissioner, raise different issues and I shall therefore deal with them
separately. Starting with the first affidavit, it is essentially a means to
introduce correspondence between counsels which postdates the application for
judicial review, as well as to introduce an affidavit and cross-examination in
earlier legal proceedings. The respondent contends that the correspondence is
filed to show that, although given the opportunity to do so, the applicant
opted not to put any evidence before this Court as to whether or not the
witnesses had authorized their counsel to disclose their in camera
evidence. As for the affidavit and cross-examination, the respondent submits
that they would be relevant to circumscribe the Hartley decision and to
show that the matter of multiple representations by lawyers of the Department
of Justice representing the Crown interests and Crown servants and the mutual
sharing of information is a controversial issue even within the Department of
Justice. In short, counsel for the respondent argues that all the documents
appended to the affidavit are general background information and should
therefore be admissible.
[16]
This
argument is flawed in more than one respect. First of all, it is well
established that judicial review of a decision maker’s order or decision is
based on the record before the decision maker at the time the impugned decision
was made. The Attorney General made a request pursuant to Rule 317 of the Rules
for the material before the Deputy Commissioner when the decisions of February
21, 2006 were made. Some material was provided in response to that request. If
any of the exhibits in the Poirier affidavit were before the decision maker,
they should have been included in the Rule 317 material filed by the
Commissioner.
[17]
It is true
that general background information or evidence that goes to the jurisdiction
of the decision maker should be admissible. I do not think, however, that any
of the exhibits in the first Poirier affidavit fit within this exception. First
of all, the correspondence between counsels has no bearing on the
jurisdictional issue and could at best demonstrate that the Orders (Counsel)
and Decision (Counsel) are not of any practical effect anymore. But that
evidence, per se, would not be determinative of the mootness issue. More
importantly, the applicant cannot be compelled to answer counsel for the
respondent’s letter, as the information sought (i.e. whether the witnesses have
authorized their counsel to disclose or use their testimonies) is protected by
solicitor-client privilege. I therefore fail to see the relevance or usefulness
of this correspondence.
[18]
As to the
affidavit of Mr. Saunders and his cross-examination, they were generated in the
context of a different proceeding dealing with different orders issued by the
Deputy Commissioner in 2001. I am not convinced that they are essential to
properly circumscribe the proper scope of the Hartley decision; the
reasons of my colleague Justice Dawson are quite elaborate and thorough, and do
not require extrinsic material to be understood both in terms of the findings
and of the underlying rationale. The fact that there may be different views
within the Department of Justice as to the matter of multiple representations
is equally irrelevant for the purpose of determining whether the Commissioner
could validly make the Orders and Decisions that are the subject of this
judicial review. For all of these reasons, I am therefore of the opinion that
the first affidavit of Ms. Poirier should be struck and disregarded.
[19]
The second
affidavit of Ms. Poirier, brought on motion by the respondent on April 23,
2007, raises similar issues. At the hearing, I indicated that I would grant the
motion, not so much because I was convinced the documents were clearly
relevant, but in order to make sure the record was as comprehensive as
possible. I came to that conclusion after counsel for the Attorney General
conceded that he would not be taken by surprise, and after having explicitly
stated that the applicant was under no obligation to file this material. Having
now had a chance to review more closely these documents as well as the parties’
submissions, I am definitely of the view that this material is at best of
marginal relevance to the issues raised in this proceeding.
[20]
As
previously mentioned, the additional documentation sought to be introduced in
evidence consists of correspondence between counsel generated in the course of
the Commissioner’s ongoing investigation and which postdates the application
for judicial review by the applicant. To the extent that these letters purported
to demonstrate what instructions have been provided to counsel in respect of
the decisions at issue, they are quite clearly inadmissible as they would
interfere with the solicitor-privilege between the witnesses and their counsel.
[21]
Furthermore,
I find the timing of this motion curious. The respondent has been aware of the
letters for many months yet has waited until mere days before the hearing of
the application to bring the motion. A motion pursuant to Rule 312 of the Rules
should not deal with material that could have been made available at an earlier
date: Mazhero v. Canada Industrial Relations Board, 2002
FCA 295, at para. 5.
[22]
Finally, I
agree with the applicant that the letters the respondent wishes to file in the
Court record are at best of marginal relevance. As already indicated, they
cannot be determinative of the mootness issue. Moreover, the Confidentiality Orders
and Decisions against counsel who represented the witnesses before the Deputy
Commissioner has not been rescinded. Since it is the jurisdiction to make these
Confidentiality Orders and Decision and to make them contingent on a waiver of
the solicitor-client privilege by the witnesses that is at stake, the issue
necessarily survives the subsequent actions of the parties; even if the parties
were to waive the privilege, the jurisdiction of the Deputy Commissioner to
make the Orders and Decision in the first place would still be very much alive.
Indeed, the effectiveness of the Deputy Commissioner decision would be spent as
a result of the fulfillment of a condition the imposition of which is itself
challenged. For all of these reasons, I would therefore dismiss the applicant’s
motion and exclude the second affidavit of Ms. Poirier from the record if I
were to look at it afresh. But having granted the motion at the hearing, I am
not prepared to vary my decision, if only because I made it clear from the
outset that the additional documentation was at best of marginal relevance. In
any event, it does not make much difference whether the motion is granted or
not, as the documentation adduced can only have a minimal impact on the result
of this application for judicial review.
b) Is this application for
judicial review time-barred?
[23]
The
respondent argues that the true purpose of the judicial review application is
to quash the Confidentiality Orders issued by the Deputy Commissioner on
February 7th and 8th, as it is these Orders which impose
the alleged undue interference or restrictions. The Decisions of February 21st,
2006 are merely the written reasons or confirmation of the Orders, according to
this argument. Since judicial review applications must be commenced within 30 days
after the time the “decision or order was first communicated,” pursuant to
subsection 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Federal
Court Act), the application should be dismissed as it was filed on March
23, 2006.
[24]
Having
considered the Orders and the Decisions, I do not think the latter can be
characterized as mere confirmations of the February 7th and 8th
Orders. Rather, it appears from the transcript of the hearing (Applicant’s
Record, p. 39) that the Deputy Commissioner was asked to decide whether or not
to rescind the original Orders. Even if he eventually confirmed his original
orders in his February 21st Decisions, I believe the Orders and the
Decisions are separate “decisions” for the purpose of subsection 18.1 of the Federal
Courts Act.
[25]
This Court
dealt at length with this question in Dumbrava v. Canada (Minister of Citizenship and
Immigration)
(1995), 101 F.T.R. 230. After reviewing the case law, Justice Noël (as he then
was) wrote:
[15] […] Whenever a decision maker who is
empowered to do so agrees to reconsider a decision on the basis of new facts, a
fresh decision will result whether or not the original decision is changed,
varied or maintained.…What is relevant is that there be a fresh exercise of
discretion, and such will always be the case when a decision maker agrees to
reconsider his or her decision by reference to facts and submissions which were
not on the record when the original decision was reached.
See also: Taylor v. Canada (Public Service Commission), 2003 FCT 566 (C.F.)
[26]
Accordingly,
I am not prepared to dismiss this application for judicial review on the basis
that it was filed too late. The Orders and the Decisions may have been related,
but they were separate even if the Decisions eventually confirmed the previous
Orders.
c) Is the application for
judicial review moot?
[27]
Counsel
for the respondent contended that this Court should refuse to entertain this
application for judicial review because it is moot, unnecessary and improper. While
this may be so with respect to the Orders (Witnesses) and the Decision (Witnesses),
it is clearly not the case as for the Orders (Counsel) and Decision (Counsel).
[28]
It will be
recalled that in his decision of February 21, 2006 the Deputy Commissioner
rescinded the Confidentiality Orders imposing confidentiality restrictions on
the witnesses. In light of the fact that these Orders were made in the context
of gathering evidence from witnesses associated, or formerly associated, in the
same workplace, the Deputy Commissioner was of the view that the Orders were no
more necessary once the oral evidence of the associated witnesses had been
given. I would therefore agree with the respondent that there cannot possibly
be any useful purpose, practical effect of benefit to pursuing the judicial
review application in this respect.
[29]
The same
cannot be said, however, of the Orders and Decision pertaining to counsel. In
his February 21, 2006 Decision, the Deputy Commissioner maintained his Orders
and refuse to rescind them as he believed they were essential to ensure the
witnesses would not be put in the position of giving their evidence in the
presence of their employer’s representative or in the presence of other
witnesses also represented by the same counsel. To be furthered, this objective
called for the permanent nature of his previous Orders, unless the witnesses
were prepared to waive solicitor-client privilege.
[30]
It is true
that there is no evidence on the record as to whether counsel has or has not
been authorized by the witnesses to disclose the evidence. Contrary to the
respondent’s contention, this is not material to the resolution of the issue
raised by the applicant. If the Deputy Commissioner does not have the
jurisdiction to subject counsel to such a restriction, the fact that it has
been complied with does not cure the potential defect of the Orders. Had it not
been for those Orders, counsel would have been able to share the evidence with
other witnesses and with their employer without the consent of their clients. Even
if counsel were eventually able to share the evidence as a result of the
witnesses waiving the solicitor-client privilege, one could argue that counsel
was still governed by the Orders in securing the waiver.
[31]
I am
therefore of the opinion that this issue is far from being moot, as the Orders are
of an ongoing nature. Even if counsel were eventually authorized to share the
information, it would still be in furtherance of the Orders. Moreover, the
jurisdiction of the Deputy Commissioner to make such an order has been fully
debated by counsel, both orally and in writing. It is certainly not an
inappropriate use of judicial resources to decide the issue in that context, to
the extent that it will most likely arise again in other cases involving a
Department of Justice counsel representing one or more employees in an
investigation conducted pursuant to the Act.
d) Do the Orders (counsel) and Decision
(counsel) impermissibly impinge on the solicitor-client privilege?
[32]
Before
embarking upon an analysis of the Deputy Commissioner’s power and of the
validity of the impugned Orders and Decision, the Court must determine the
applicable standard of review. Counsel for both parties appropriately agreed
that correctness is the appropriate standard, at least with respect to the jurisdictional
issue. My colleague Justice Dawson came to the same conclusion in the Hartley
decision, after having applied the four factors of the pragmatic and
functional approach. While the issue in that case was the jurisdiction of the Deputy
Commissioner to issue confidentiality orders directed at the witnesses, I can
see no reason why her reasoning would not be equally applicable to the question
at bar, that is, whether the Commissioner was empowered to issue Confidentiality
Orders directed at counsel.
[33]
In his
written submissions, counsel for the respondent argued that the Commissioner
and his delegates nevertheless should be entitled to considerable deference
with respect to the conduct of the investigation, and that his conclusions
respecting the concerns raised by the multiple representations of counsel for
the Department of Justice and their impact on his decision to issue
Confidentiality Orders should be reviewed on the patently unreasonable
standard. This is no doubt true, assuming the Commissioner has the authority to
make the Orders in the first place. But if the Orders are of such a nature as
to unnecessarily infringe on the solicitor-client privilege, or if it
contravenes the Charter, no deference will be owed to the Commissioner. This
is precisely the issue in the case at bar.
[34]
Both
parties agree on the importance of preserving solicitor-client privilege. Not
surprisingly, however, they don’t see eye to eye on the consequences to be
drawn from this recognition and come to a different interpretation of the
Deputy Commissioner’s Orders. Counsel for the applicant repeatedly stress the
fundamental nature of this privilege and relied on a number of Supreme Court
cases for the proposition that solicitor-client privilege can be infringed only
when it is “absolutely necessary” to do so to achieve the ends of the enabling
legislation: see, for example, R. v. McClure, [2001] 1
S.C.R. 445; Smith v. Jones, [1999] 1 S.C.R. 455; Descôteaux et
al. v. Mierzwinski, [1982] 1 S.C.R. 860 [Descôteaux]; Solosky
v. The Queen, [1980] 1 S.C.R. 821; Lavallee, Rackel & Heintz
v. Canada (Attorney General), [2002] 3 S.C.R. 209 [Lavallee,
Rackel & Heintz]; Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809.
[35]
According
to the applicant’s submission, the Deputy Commissioner has interfered with the
solicitor-client relationship of the individuals (and of the federal Crown) and
their counsel by setting the terms of a solicitor-client relationship of
another party, by interfering with the communications that may pass between
counsel and client, and by making a link between the order that constrains
solicitor-client privilege and the waiver of that privilege. As a result, the
privilege would no longer be absolute, but rather be in the hands of a party
who is a stranger to the relationship. Yet, there is nothing in the common law
nor in the Act authorizing the Commissioner or his delegates to create
such an exception to the privilege. Nor is there any evidence to support the
presumption that Department of Justice counsel would be in a conflict of
interest, torn between their loyalty to the individual witnesses and the Crown.
[36]
Counsel
for the respondent, on the other hand, placed a lot of emphasis on the public
policy underlying the Act, on the role of the Commissioner in carrying
out his mandate, and on the private and ex parte nature of the
investigations. In that context, it was argued that the Commissioner can impose
a confidentiality order to ensure that the rights of the witnesses are
protected and that the Attorney General is excluded from the proceeding. If the
Attorney General had a de facto right to attend all hearings simply by
providing a counsel to the witnesses compelled to give evidence, it was
submitted, the investigatory process would simply be unworkable and profoundly
undermined.
[37]
Considering
this potential conflict of interest between Crown servants and the Attorney
General, and to ensure that witnesses will remain in control of the disclosure
of their testimonies notwithstanding the fact they are represented by counsel
who also represent the Attorney General and the head of the government
institution whose decision to refuse disclosure is being investigated, the
Commissioner must therefore be empowered to make the impugned Confidentiality
Orders, so the argument goes. Indeed, counsel for the Commissioner submitted
that the effect of the Orders was simply to reiterate the basic principle of
solicitor-client privilege given the many hats worn by counsel from the
Department of Justice.
[38]
Many of
the arguments raised by the parties have been canvassed at length by Justice
Dawson in the Hartley decision (reversed on appeal, 2005 FCA 199, but
not on this ground), and counsel referred extensively to that ruling in their
oral and written submissions. At issue in that case were, among other things,
confidentiality orders prohibiting persons who had given evidence before the
Commissioner from revealing any information disclosed during his or her
testimony. All of these persons were represented by the same four lawyers of
the same law firm, which also represented the Government of Canada, the
Attorney General and the Prime Minister.
[39]
Each of
these confidentiality orders 1) required the witnesses “not to reveal “any
information disclosed during my confidential testimony in this matter including
the evidence given by me””; 2) “authorized each [witness] to disclose to [their
lawyers] information disclosed during his or her confidential testimony, once
each of those lawyers had executed an undertaking not to reveal to any person
information disclosed during that particular witness’ confidential testimony”;
and 3) “required each [witness] to acknowledge that the confidentiality order
would apply until such time as the [witness] was released from the terms of the
order by the Commissioner”. When issuing these confidentiality orders, the
Deputy Commissioner also ordered that the witnesses’ counsel undertake not to
reveal information disclosed during the individual witness’ testimony with
other individuals who counsel also represented.
[40]
Interestingly,
the reasons provided by the Deputy Commissioner for issuing the confidentiality
orders are quite similar to those advanced in the present case. Justice Dawson,
in the Hartley decision, summarized those reasons in the following way:
[138] […] (a) The Commissioner has a
statutory obligation to insure the privacy of his investigations.
b) The Commissioner is obliged to protect
the integrity of his investigations by encouraging the candour of witnesses. In
order to encourage candour the Commissioner must provide an environment which
assures privacy so as to prevent the possible tainting of evidence, whether
that tainting is conscious or unconscious.
(c) The Commissioner’s ongoing
investigations would be compromised if witnesses were permitted to communicate
questions asked and answers given during the course of the Commissioner’s
private investigation to other persons, including persons who were potential
witnesses in the same investigations.
(d) The Commissioner must be mindful of
the potential implications of witnesses’ reporting relationships. The integrity
of the Commissioner’s investigations are potentially compromised where
witnesses are represented by counsel who simultaneously represent the
witnesses’ superiors and ultimate employer. Crown employees may feel
embarrassed, reluctant, inhibited or intimidated when a representative of their
employer is present to hear their evidence. Employees may fear recrimination
and reprisal, particularly where their counsel also represents the Crown.
[41]
In the
case at bar, counsel for the respondent once again relied extensively on
sections 35, 36 and 62 to 65 of the Act. These provisions read as
follows:
|
Investigations
in private
35. (1) Every
investigation of a complaint under this Act by the Information Commissioner
shall be conducted in private.
Right to
make representations
(2) In the
course of an investigation of a complaint under this Act by the Information
Commissioner, a reasonable opportunity to make representations shall be given
to
(a)
the person who made the complaint,
(b)
the head of the government institution concerned, and
(c)
a third party if
(i)
the Information Commissioner intends to recommend the disclosure under
subsection 37(1) of all or part of a record that contains — or that the
Information Commissioner has reason to believe might contain — trade secrets
of the third party, information described in paragraph 20(1)(b) or (b.1) that
was supplied by the third party or information the disclosure of which the
Information Commissioner can reasonably foresee might effect a result
described in paragraph 20(1)(c) or (d) in respect of the third party, and
(ii)
the third party can reasonably be located.
However no one
is entitled as of right to be present during, to have access to or to comment
on representations made to the Information Commissioner by any other person.
Evidence in
other proceedings
36. (3) Except
in a prosecution of a person for an offence under section 131 of the Criminal
Code (perjury) in respect of a statement made under this Act, in a
prosecution for an offence under section 67, in a review before the Court
under this Act or in an appeal from such proceedings, evidence given by a
person in proceedings under this Act and evidence of the existence of the proceedings
is inadmissible against that person in a court or in any other proceedings.
Confidentiality
62. Subject to
this Act, the Information Commissioner and every person acting on behalf or
under the direction of the Commissioner shall not disclose any information
that comes to their knowledge in the performance of their duties and
functions under this Act.
Disclosure
authorized
63. (1) The
Information Commissioner may disclose or may authorize any person acting on
behalf or under the direction of the Commissioner to disclose information
(a)
that, in the opinion of the Commissioner, is necessary to
(i)
carry out an investigation under this Act, or
(ii)
establish the grounds for findings and recommendations contained in any
report under this Act; or
(b)
in the course of a prosecution for an offence under this Act, a prosecution
for an offence under section 131 of the Criminal Code (perjury) in respect of
a statement made under this Act, a review before the Court under this Act or
an appeal therefrom.
Disclosure
of offence authorized
(2) The
Information Commissioner may disclose to the Attorney General of Canada
information relating to the commission of an offence against a law of Canada
or a province by a director, an officer or an employee of a government
institution if, in the Commissioner’s opinion, there is evidence of such an
offence.
Information
not to be disclosed
64. In
carrying out an investigation under this Act and in any report made to
Parliament under section 38 or 39, the Information Commissioner and any
person acting on behalf or under the direction of the Information
Commissioner shall take every reasonable precaution to avoid the disclosure
of, and shall not disclose,
(a)
any information or other material on the basis of which the head of a
government institution would be authorized to refuse to disclose a part of a
record requested under this Act; or
(b)
any information as to whether a record exists where the head of a government
institution, in refusing to give access to the record under this Act, does
not indicate whether it exists.
No summons
65. The
Information Commissioner or any person acting on behalf or under the
direction of the Commissioner is not a competent or compellable witness, in
respect of any matter coming to the knowledge of the Commissioner or that
person as a result of performing any duties or functions under this Act
during an investigation, in any proceedings other than a prosecution for an
offence under this Act, a prosecution for an offence under section 131 of the
Criminal Code (perjury) in respect of a statement made under this Act, a
review before the Court under this Act or an appeal therefrom.
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Secret
des enquêtes
35.
(1) Les enquêtes menées sur les plaintes par le Commissaire à l’information sont
secrètes.
Droit
de présenter des observations
(2) Au
cours de l’enquête, les personnes suivantes doivent avoir la possibilité de
présenter leurs observations au Commissaire à l’information, nul n’ayant
toutefois le droit absolu d’être présent lorsqu’une autre personne présente
des observations au Commissaire à l’information, ni d’en recevoir
communication ou de faire des commentaires à leur sujet :
a) la personne qui a déposé la plainte;
b) le responsable de l’institution
fédérale concernée;
c) un tiers, s’il est possible de le
joindre sans difficultés, dans le cas où le Commissaire à l’information a
l’intention de recommander, aux termes du paragraphe 37(1), la communication
de tout ou partie d’un document qui contient ou est, selon lui, susceptible
de contenir des secrets industriels du tiers, des renseignements visés aux
alinéas 20(1)b) ou b.1) qui ont été fournis par le tiers ou des
renseignements dont la communication risquerait, selon lui, d’entraîner pour
le tiers les conséquences visées aux alinéas 20(1)c) ou d).
Inadmissibilité
de la preuve dans d’autres procédures
36. (3)
Sauf dans les cas de poursuites pour infraction à l’article 131 du Code
criminel (parjure) se rapportant à une déclaration faite en vertu de la
présente loi ou pour infraction à l’article 67, ou sauf dans les cas de
recours en révision prévus par la présente loi devant la Cour ou les cas
d’appel de la décision rendue par la Cour, les dépositions faites au cours de
toute procédure prévue par la présente loi ou le fait de l’existence de telle
procédure ne sont pas admissibles contre le déposant devant les tribunaux ni
dans aucune autre procédure.
Secret
62.
Sous réserve des autres dispositions de la présente loi, le Commissaire à
l’information et les personnes agissant en son nom ou sous son autorité sont
tenus au secret en ce qui concerne les renseignements dont ils prennent
connaissance dans l’exercice des pouvoirs et fonctions que leur confère la
présente loi.
Divulgation
autorisée
63.
(1) Le Commissaire à l’information peut divulguer, ou autoriser les personnes
agissant en son nom ou sous son autorité à divulguer, les renseignements:
a) qui, à son avis, sont nécessaires
pour :
(i) mener une enquête prévue par la
présente loi,
(ii) motiver les conclusions et recommandations
contenues dans les rapports et comptes rendus prévus par la présente loi;
b) dont la divulgation est nécessaire,
soit dans le cadre des procédures intentées pour infraction à la présente loi
ou pour une infraction à l’article 131 du Code criminel (parjure) se
rapportant à une déclaration faite en vertu de la présente loi, soit lors
d’un recours en révision prévu par la présente loi devant la Cour ou lors de
l’appel de la décision rendue par celle-ci.
Dénonciation
autorisée
(2)
Si, à son avis, il existe des éléments de preuve touchant la perpétration
d’une infraction fédérale ou provinciale par un administrateur, un dirigeant
ou un employé d’une institution fédérale, le Commissaire à l’information peut
faire part au procureur général du Canada des renseignements qu’il détient à
cet égard.
Précautions
à prendre
64.
Lors des enquêtes prévues par la présente loi et dans la préparation des
rapports au Parlement prévus aux articles 38 ou 39, le Commissaire à
l’information et les personnes agissant en son nom ou sous son autorité ne
peuvent divulguer et prennent toutes les précautions pour éviter que ne
soient divulgués :
a) des renseignements qui, par leur
nature, justifient, en vertu de la présente loi, un refus de communication
totale ou partielle d’un document;
b) des renseignements faisant état de
l’existence d’un document que le responsable d’une institution fédérale a
refusé de communiquer sans indiquer s’il existait ou non.
Non-assignation
65. En
ce qui concerne les questions venues à leur connaissance dans l’exercice, au
cours d’une enquête, des pouvoirs et fonctions qui leur sont conférés en
vertu de la présente loi, le Commissaire à l’information et les personnes qui
agissent en son nom ou sur son ordre n’ont qualité pour témoigner ou ne
peuvent y être contraints que dans les procédures intentées pour infraction à
la présente loi ou pour une infraction à l’article 131 du Code criminel
(parjure) se rapportant à une déclaration faite en vertu de la présente loi,
ou que lors d’un recours en révision prévu par la présente loi devant la Cour
ou lors de l’appel de la décision rendue par celle-ci.
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[42]
Contrary to the
Commissioner’s submission, these provisions do not empower him to make
confidentiality orders. It does not follow from the fact that every
investigation must be conducted in private that the Commissioner may determine
the rights and obligations of witnesses appearing before him or his delegates. The
confidentiality requirements found in the Act are no more than a quid
pro quo for the broad right of access given to the Commissioner. Justice
Dawson explicitly dealt with this contention in the Hartley decision and
stated:
[149]
[…] The Act does not expressly impose confidentiality requirements upon
persons other than the Commissioner and his staff, presumably because those in
government with access to confidential information are subject to an already
existing government regime for the keeping of its confidences (for example, the
oath of office required under the Public Service Employment Act, R.S.C.
1985, c. P-33, fiduciary or contractual obligations and legislation such as the
Security of Information Act, R.S.C. 1985, c. O-5).
[150]
Put another way, the confidentiality regime required by the Act is a regime
that will ensure that information communicated to the Commissioner remains
protected to the same extent as if not disclosed to the Commissioner. It is
consistent with that scheme that the confidentiality requirements are
requirements imposed only upon the Commissioner.
[151]
I believe that Parliament manifested this intention in section 62 of the Act
where it wrote “[S]ubject to this Act, the Information Commissioner and every
person acting on behalf or under the direction of the Commissioner shall not
disclose any information that comes to their knowledge in the performance of
their duties and functions under this Act”… The confidentiality obligation is
only directed to the Commissioner and his delegates. Parliament could have
expressly enacted a confidentiality provision which applied to witnesses, but
did not.
[43]
In addition, the
Federal Court of Appeal has confirmed that section 35 of the Act must be
read together with section 62 and that the obligation of confidentiality under
section 35 is imposed on the Commissioner. As noted by the Court of Appeal, the
rationale for this is simply to promote the objective of full disclosure by the
government during the investigation by the Commissioner. This interpretation of
section 35 of the Act undermines the rationale of the Deputy Commissioner
that section 35 can serve as a basis for making a confidentiality order. Such
an order would impose obligations beyond those inherent in section 35 of the Act.
[44]
That being said, does
it necessarily follow that the Commissioner is without jurisdiction to make a
confidentiality order? Not necessarily. The Act provides the
Commissioner with broad and effective discretionary powers to investigate
complaints and determine the procedure to be followed in the performance of any
of his duties or functions. In other words, the Commissioner is to be master of
his own procedure:
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Regulation of procedure
34. Subject to this Act, the
Information Commissioner may determine the procedure to be followed in the
performance of any duty or function of the Commissioner under this Act.
|
Procédure
34. Sous réserve des autres dispositions de la présente
loi, le Commissaire à l’information peut établir la procédure à suivre dans
l’exercice de ses pouvoirs et fonctions.
|
[45]
I agree with the
respondent that the Commissioner is invested with a broad discretion when
determining the process of an investigation. In order to enable the
Commissioner to fulfill his mandate, Parliament has clearly and unequivocally
conferred upon the Commissioner almost unlimited powers. Considering the object
of the Act, the wording of that section and the need to give that
quasi-constitutional statute a liberal and purposive construction, I am
prepared to accept (as did Justice Dawson in the Hartley decision, at
para. 172) that section 34 of the Act authorizes the Commissioner to
issue confidentiality orders directed both at witnesses and counsel, subject to
some restrictions to ensure that they are appropriately tailored to the
specific circumstances of each case.
[46]
In the context of a
confidentiality order imposed on counsel, one of the constraints the
Commissioner must obviously take into account in framing it is the
solicitor-client privilege. The importance of solicitor-client privilege and
the need to guard against its infringement have been recognized numerous times
by the Supreme Court of Canada, and both parties are in agreement that the
upholding of this privilege is essential for the functioning of an effective
legal system. In Lavallee, Rackel & Heintz¸ supra, Justice Arbour
noted that this privilege is to remain as absolute as possible in order to
maintain relevance and to ensure confidence in the privilege. The most recent
statement about solicitor-client privilege was made by the Supreme Court in Goodis
v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R.
32, where Justice Rothstein, for the Court, held that solicitor-client
privilege can be infringed only when it is “absolutely necessary” to do so to
achieve the ends of the enabling legislation.
[47]
This privilege, which
has evolved into a fundamental and substantive rule of law, has been described
in the following way by Justice Lamer in Descôteaux, supra, at p. 875:
1. The
confidentiality of communications between solicitor and client may be raised in
any circumstances where such communications are likely to be disclosed without
the client’s consent.
2. Unless
the law provides otherwise, when and to the extent that the legitimate exercise
of a right would interfere with another person’s right to have his
communications with his lawyer kept confidential, the resulting conflict should
be resolved in favour of protecting the confidentiality.
3. When
the law gives someone the authority to do something which, in the circumstances
of the case, might interfere with that confidentiality, the decision to do so
and the choice of means of exercising that authority should be determined with
a view to not interfering with it except to the extent absolutely necessary in
order to achieve the ends sought by the enabling legislation.
4. Acts
providing otherwise in situations under paragraph 2 and enabling legislation
referred to in paragraph 3 must be interpreted restrictively.
[48]
Can it be said, in
the present instance, that interference with solicitor-client privilege is
absolutely necessary to achieve the ends sought by the legislation? Or, to put
it another way, is the public interest in limiting the privilege greater than
that of maintaining the privilege? Considering the public policy goals sought
to be achieved by Parliament in adopting the Act, I believe the answer
to both of these questions is positive.
[49]
Subsection 2(1)
enunciates the purpose of the Act in the following terms:
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2.(1) The
purpose of this Act is to extend the present laws of Canada to provide a
right of access to information in records under the control of a government
institution in accordance with the principles that government information
should be available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the disclosure of
government information should be reviewed independently of government.
|
2. (1) La présente loi a pour objet
d’élargir l’accès aux documents de l’administration fédérale en consacrant le
principe du droit du public à leur communication, les exceptions
indispensables à ce droit étant précises et limitées et les décisions quant à
la communication étant susceptibles de recours indépendants du pouvoir
exécutif.
|
[50]
In Dagg v.
Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para, 61,
Justice LaForest held that:
The
overarching purpose of access to information legislation … is to facilitate
democracy. It does so in two related ways. It helps to ensure first, that
citizens have the information required to participate meaningfully in the
democratic process, and secondly, that politicians and bureaucrats remain
accountable to the citizenry…
[51]
The role of the
Commissioner in achieving these objectives is central. As an officer of
Parliament, the Commissioner is charged with the duties to receive and
investigate any complaint made to him pursuant to subsection 30(1) of the Act
and to report thereon to the complainant and the appropriate government
institution pursuant to section 37 of the Act. Parliament has provided
that the final decision of a head of a government institution to refuse to
disclose information is to be made only after that person has had the
opportunity to review the Commissioner’s findings and recommendations. The
importance of the Commissioner’s investigation was highlighted by the Federal
Court of Appeal as follows:
The
investigation the Commissioner must conduct is the cornerstone of the access to
information system. It represents an informal method of resolving disputes in
which the Commissioner is vested not with the power to make decisions, but
instead with the power to make recommendations to the institution involved. The
importance of this investigation is reinforced by the fact that it constitutes
a condition precedent to the exercise of the power of review, as provided in
sections 41 and 42 of the Act.
Canada
(Information Commissioner) v.
Canada (Minister of National Defence) (1999), 166 F.T.R. 277; [1999] F.C.J. No. 522
(QL), at para. 27.
[52]
One of the rationales
underlying the Deputy Commissioner’s Confidentiality Orders vis-à-vis counsel
is the potential conflict of interests arising from the fact that counsel
representing the witnesses also represent both the Attorney General and the
head of the government institution whose decision is being investigated. The
investigation being held in private and ex parte, the Commissioner felt
that it was necessary to ensure the candour of witnesses so as to give precedence
to the individual solicitor-client relationship over the Crown solicitor-client
relationship.
[53]
Counsel for the
applicant countered that there is absolutely no factual or evidentiary
foundation for the proposition that such a conflict of interest exists or is
even likely to come up in the present circumstances, and that the Decision and
Orders are therefore founded on speculation and unsubstantiated assumptions. The
only reason that the individuals were subpoenaed by the Deputy Commissioner was
on account of their activities on behalf of the Crown. Since they were not
examined in their personal capacity but rather in their professional capacity
as Crown servants and employees, there can be no conflict of interest in this
proceeding between the individuals and the Crown, according to the applicant’s
argument.
[54]
I must confess that I
am somewhat troubled by this automatic and necessary assimilation of the
Crown’s and the employees’ interests. As a general rule, I am prepared to
concede that it is unlikely the employees’ views with respect to the disclosure
of a document will differ from those of the senior management of the Department
involved. But the possibility cannot be ruled out entirely, especially when the
employees subpoenaed by the Commissioner are not in the higher ranks of the
Department but rather at the lower level. Similarly, I can easily envisage
situations where there is no conflict at the outset but conflict develops as
the questioning proceeds and the investigation unfolds. It is in those kinds of
circumstances that employees must have the assurance that they will remain in
control of the disclosure of their testimonies notwithstanding the fact that their
counsel play a dual role.
[55]
I agree with the
respondent that the investigatory process would simply be unworkable and
profoundly undermined if the Attorney General had a de facto right to
attend all hearings simply by providing a counsel to the witnesses compelled to
give evidence. This would clearly circumvent Parliament’s intent that the investigations
be conducted in private and the Commissioner’s decision that it be held ex
parte. After all, the investigation conducted by the Commissioner is meant
to be independent of the government.
[56]
In the Hartley decision,
Justice Dawson acknowledged that the existence of multiple representations by
the same lawyer was a relevant consideration in assessing whether the confidentiality
order infringed the Charter. She wrote:
[204]
Finally, the fact that almost all of the government actors were represented by
the same lawyers is a further contextual factor. This is so because counsel who
represent multiple entities in the same matter are generally required to share
information amongst their clients. To the extent some witnesses were
represented by counsel with the Department of Justice, Crown servants are
generally required to waive solicitor-client privilege in favour of the Crown.
[57]
Contrary to the
applicant’s allegation, Justice Dawson did not reject the “employer in the
room” argument, but merely found this argument to be insufficient to justify
the unlimited time duration of the confidentiality orders at issue in that
case. This decision is consistent with a previous decision from this Court in
the same file, refusing the Commissioner’s motion to remove counsel. The
Commissioner had sought to remove counsel as solicitors of record for the
Attorney General and for the individual applicants on the basis that they were
represented by the same lawyers. In that case, it was mainly because of the
safeguards which were provided by the confidentiality orders directed at
counsel and the parallel undertakings of confidentiality of counsel that Justice
McKeown decided that counsel for the Attorney General and for the individual
applicants was allowed to remain as solicitors of record, notwithstanding its
multiple representations: Canada (Attorney General) v. Canada
(Information Commissioner) (T.D.), [2002] 3 F.C. 630 at paras. 20, 26 and
32.
[58]
As it also appears
from that same case, confidentiality orders are required in the context of
multiple representations considering Rule 2.04(6) of the Rules of
Professional Conduct of the Law Society of Upper Canada. This rule provides
that, absent a confidentiality order, in the case of a joint retainer, no
information received in connection with the matter from one client can be
treated as confidential so far as any of the other clients are concerned.
[59]
If this was not
sufficient, and to remove any remaining ambiguity, the Policy on the
Indemnification of and Legal Assistance for Crown Servants of the Treasury
Board of Canada explicitly refers to the possibility that Crown servants
represented by Crown counsel be required to waive solicitor-client privilege in
favour of the Crown. This Policy specifically acknowledges the potential for
conflict of interest between Crown servants and the Attorney General and
provides that counsel’s obligation towards the Crown is paramount.
[60]
In light of all this,
I am inclined to think that it was perfectly legitimate for the Commissioner to
issue the impugned Confidentiality Orders. If the spirit of the Act is
to be upheld, and if the Commissioner’s investigations are to ensure openness
and accountability in the management of information collected and generated by
government, the solicitor-client relationship between the employee and his
counsel must prevail over the solicitor-client relationship between counsel and
the Crown and between counsel and other employees. The employee testifying
before the Commissioner must have the last word as to who will have access to
what he said. He or she may decide to waive privilege; but it should be his or
her decision, not that of the government.
[61]
For all of the
foregoing reasons, I find that the impugned Orders interfere with the
solicitor-client privilege of the Crown no more than is necessary, and is
perfectly consistent with the objectives of the Act. If, as the
applicant submits, there is no conflict of interest, the employee can always
waive his or her privilege. This requirement is a small price to pay in order
to ensure that the employee is fully protected and that his or her testimony
will be as candid and transparent as possible.
e) Do the Decision (Counsel) and Orders
(Counsel) violate the Charter?
[62]
I do not think it can
seriously be disputed that an order from an officer who exercises statutory
powers falls within the ambit of the Charter. Similarly, it is equally
beyond dispute that such an order limits the freedom of expression guaranteed
by section 2(b) of the Charter to the extent that it prevents counsel
appearing on behalf of witnesses before the Commissioner to disclose “the
questions asked, the answers given and exhibits used” during their clients’
testimony. The only real issue is whether such a limit can be justified
pursuant to section 1 of the Charter.
[63]
Courts are generally
reluctant to embark on a Charter enquiry in the absence of a sufficient
evidentiary record. Contrary to the situation in the Hartley decision,
the parties in the present instance have filed very little evidence. There
is nothing before this Court, for example, with respect to the investigation
that prompted the impugned Deputy Commissioner’s Orders and Decision, nor was
this Court provided with any background information as to how and on what terms
the Justice counsel were representing the witnesses. It is therefore with these
caveats in mind that I proceed with an assessment of the reasonableness
of the limit imposed on counsel’s freedom of expression by the Orders and
Decision issued by the Deputy Commissioner.
[64]
In the Hartley decision,
Madam Justice Dawson mentioned a number of relevant contextual considerations
before determining the conformity of the confidentiality orders with section 1
of the Charter. I believe many of these factors are equally applicable
here, and I therefore adopt the following ones:
[194] First,
the investigation is conducted in furtherance of the quasi-constitutional right
of access that has as its purpose the facilitation of democracy.
[195] Second,
the investigation conducted by the Commissioner is an investigation that is to
be independent of government.
[196] Third,
the investigation is to be conducted in private.
[…]
[200] The
fifth contextual factor is that there have been instances where members of a
government department have taken steps to frustrate the right of access under
the Act…
[…]
[204] Finally,
the fact that almost all of the government actors were represented by the same
lawyers is a further contextual factor. This is so because counsel who
represent multiple entities in the same matter are generally required to share
information amongst their clients. To the extent some witnesses were
represented by counsel with the Department of Justice, Crown servants are
generally required to waive solicitor-client privilege in favour of the Crown.
[65]
I would only add to
these the fact that the witnesses involved in the investigation underlying this
application for judicial review were not high-ranking officials or senior
exempt staff people like the Prime Minister’s chief of staff, but four Crown servants
who have been involved in one capacity or another with the initial request made
under the Act.
[66]
Taking into account
the contextual factors that she had identified as being relevant to her section
1 analysis, Justice Dawson had no difficulty concluding that the objective
sought to be achieved by the confidentiality order at stake in the Hartley
decision (i.e., protecting the integrity of the investigations and ensuring
that confidential information is not improperly disclosed) related to pressing
and substantial concerns in a free and democratic society. As a result, she was
prepared to accept that the objectives were of sufficient importance as to
warrant a limit to freedom of expression.
[67]
She was similarly
satisfied that the first step in establishing the proportionality of the
measure vis-à-vis the objective to be pursued was successfully met. I recognize
that the confidentiality order in that case was directed to the witnesses
themselves and affected counsel only indirectly, to the extent that the
witnesses were authorized to reveal to their four lawyers information disclosed
during their confidential testimony, once each of those lawyers had executed an
undertaking not to reveal to any person information disclosed during each
particular applicant’s confidential testimony. I nevertheless find that her
reasons for accepting that there is a rational connection between the
imposition of a confidentiality order and the protection of both the integrity
of the investigations and the confidentiality of the information which might
otherwise not be protected, holds true in the case at bar. Here is what she had
to say in that respect:
[211] The
reasons of the Commissioner’s delegate shed light on how the orders are viewed
to function in order to protect the integrity of the investigations. First, if
witnesses could communicate questions asked and answers given on their
examination before the Commissioner’s delegate, the delegate is less likely to
obtain a witness’ own independent recollection of events. Second, the orders
ensure that a witness may speak freely without fear of employment
repercussions. Third, the automatic imposition of a confidentiality order is
said to prevent any stigma attaching to a witness who is bound by such an
order. The Commissioner says that there would exist a possibility of suspicion
attaching to a witness who requested a confidentiality order.
[212] With
respect to the object of protecting the confidentiality of government
information, the confidentiality orders are said to reflect the Commissioner’s
obligation to take every reasonable precaution to avoid the disclosure of
exempt information. The orders also allow some portion of one witness’ evidence
to be put to another witness for the purpose of advancing the investigation.
[68]
Having found that
the confidentiality order met the rational connection test, Justice Dawson
nevertheless quashed it on the ground that it did not impair the witnesses’
freedom of expression as little as possible. After noting that it is always
more difficult to justify a complete ban on a form of expression than a partial
ban, and that confidentiality orders are to be restricted as much as possible,
she opined that the Commissioner’s Delegate had failed to justify the breadth
of his order. A careful reading of her reasons shows that the unlimited
duration of the confidentiality order was a key factor in her assessment that
it was overbroad and unjustified.
[69]
In the present case,
the Confidentiality Orders and Decision are of a more limited extent. First,
they are somewhat limited in scope, as the restrictions imposed relate solely
to “questions asked,” “answers given,” and “exhibits used”. More importantly,
the witnesses are free at any time to authorize their counsel to disclose the
information at issue. As a result, the Confidentiality Orders can not be
assimilated to a “blanket regime which precludes a person from communicating
for all time any information touching upon their testimony and appearance
before the Commissioner” (Hartley, supra, at para. 154).
[70]
I am prepared to
accept that other factors, in addition to the duration factor, led Justice
Dawson to the conclusion that the orders were overly broad. She mentioned, for
example, the lack of evidence that witnesses would be tainted, that a stigma
would attach to witnesses not subject to a confidentiality order, or that the
release of information such as the manner in which the proceedings were
conducted, the role of counsel, objections to questions and rulings, would
impair the integrity of the investigation. She also noted that the level of
seniority of at least some of the witnesses dictated that it was virtually
impossible to presume they would be susceptible to coercion.
[71]
However, once again,
many of these considerations do not apply with equal strength here. Not only
are the Decision and the Orders in the present instance much less absolute than
they were in the Hartley decision, but they also aim at protecting
public officials of a much lower rank. While there is no hard evidence that
these officials’ interests diverge from those of the government, or that they
might feel pressured to go along with the stated position of their Department,
it is not a great leap of logic or common sense to acknowledge that they could
be more vulnerable and less prone to be fully transparent were they not
protected from the divulgation of their testimony to their employer via their
counsel.
[72]
It is revealing and
even disturbing that, although the individual witnesses are the main
beneficiaries of the protection afforded by the solicitor-client privilege,
none of these individual witnesses are a party to the application. Similarly,
the fact that the applicant is complaining that counsel cannot unilaterally
decide to disclose information gained solely in their capacity as counsel for
the witnesses, as if not subject to the same loyalty and confidentiality
obligations as any other solicitor towards his/her clients, goes a long way in
showing that the rights of the individual witnesses indeed required fostering.
[73]
At the end of the
day, the Deputy Commissioner chose to uphold the solicitor-client privilege
between the witness and his or her counsel, and to give it precedence over the
privilege between counsel and the Attorney General. Indeed, counsel appeared
with the individual witnesses before the Commissioner only after it was made
clear that such appearance was solely as legal counsel for the witness in
question, and not as legal counsel for any other party, and more particularly,
for the Attorney General. Considering the limited scope of the Orders and of
the Decision, and the possibility for the witnesses to waive the privilege and
to authorize at any time their counsel to disclose the information at issue, I
am of the view that they meet the minimal impairment requirement and that the
limit on freedom of expression is therefore justified pursuant to section 1 of
the Charter.
[74]
More particularly, I
agree with counsel for the respondent that the Orders and the Decision directed
at counsel go no further than required to 1) enhance the truth finding function
of the Commissioner’s investigation, which investigation is conducted in
furtherance of the quasi-constitutional right of access; 2) maintain the
integrity of the investigation; 3) ensure that a witness’s testimony would not be
tainted by knowledge of the evidence given by another witness; 4) maintain the ex
parte nature of the investigation, which investigation has to be
independent of government pursuant to Parliament’s specific intent prescribed
in the Act; 5) address the uniqueness of the multiple representations by
counsel from the Department of Justice, and 6) maintain the private nature of
the investigation and ensure the protection of any specific confidential
information.
[75]
For all of the
foregoing reasons, this application for judicial review is therefore dismissed,
with costs.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed, with costs.
"Yves
de Montigny"
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