Date: 20080325
Docket: T-323-07
Citation: 2008 FC 376
Vancouver,
British Columbia, March 25, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
MR.
M. ROBIN QUINN
Applicant
and
THE MINISTER OF JUSTICE
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
The
self-represented applicant, Mr. Robin Quinn (the Applicant), has made requests
under the Access to Information Act, R.S.C. 1985, c. A-1 (the Access
Requests) seeking documents from the Department of Justice which include advice
given during its examination of the National Capital Commission Animal
Regulations, S.O.R./2002-164 (the Animal Regulations). That examination was
undertaken pursuant to subsection 3(2) of the Statutory Instruments Act,
R.S.C. 1985, c. S-22 (the SIA).
This Application
[2]
This
application is for judicial review of a decision made by the Minister of
Justice in which he declined to release certain documents in response to the
Applicant’s Access Requests. During the hearing of this application, it
became clear that only the documents withheld on the basis of solicitor-client
privilege (the Exempt Material) were of concern to the Applicant. Most of those
documents are included in the material found in confidential exhibit 33 to the
affidavit of Diane Leroux, sworn April 3, 2007. However, there were additional
documents which are subject to a claim of solicitor and client privilege which
were produced by the Respondent at the opening of the hearing. They were filed
by the Court Registrar.
[3]
The
Court was not asked to undertake a review of the Exempt Material to ensure that
the claims of solicitor-client privilege are well founded. Rather, the
Applicant’s submissions were to the effect that solicitor and client privilege
cannot be claimed in the circumstances of this case.
The Exempt
Material
[4]
The
Access to Information Act (the Act) provides in section 23 that
documents covered by solicitor-client privilege are exempt from production
pursuant to an access request. It reads as follows:
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23. The head of a government institution may refuse to
disclose any record requested under this Act that contains information that
is subject to solicitor-client privilege.
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23. Le responsable d’une
institution fédérale peut refuser la communication de documents contenant des
renseignements protégés par le secret professionnel qui lie un avocat à son
client.
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[5]
The
Exempt Material is in the form of communications between two Department of
Justice lawyers (the Justice Lawyers) and lawyers at the National Capital Commission
(the NCC), written in the course of drafting and examining the Animal
Regulations under subsection 3(2) of the SIA (the Examination). The Exempt
Material also includes communications between lawyers in the Department of
Justice and the Clerk of the Privy Council (the Clerk) in connection with the
examination of the draft Animal Regulations under subsection 3(2) of the SIA.
The Law
[6]
The
SIA provides as follows:
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3. (1) Subject to any
regulations made pursuant to paragraph 20( a), where a
regulation-making authority proposes to make a regulation, it shall cause to
be forwarded to the Clerk of the Privy Council three copies of the proposed
regulation in both official languages.
Examination
(2) On receipt by
the Clerk of the Privy Council of copies of a proposed regulation pursuant to
subsection (1), the Clerk of the Privy Council, in consultation with the
Deputy Minister of Justice, shall examine the proposed regulation to ensure
that
(a) it is
authorized by the statute pursuant to which it is to be made;
(b) it does
not constitute an unusual or unexpected use of the authority pursuant to
which it is to be made;
(c) it does
not trespass unduly on existing rights and freedoms and is not, in any case,
inconsistent with the purposes and provisions of the Canadian Charter of
Rights and Freedoms and the Canadian Bill of Rights; and
(d) the form
and draftsmanship of the proposed regulation are in accordance with
established standards.
Advise
regulation-making authority
(3) When a proposed
regulation has been examined as required by subsection (2), the Clerk of the
Privy Council shall advise the regulation-making authority that the proposed
regulation has been so examined and shall indicate any matter referred to in
paragraph (2)(a), (b), (c) or (d) to which, in
the opinion of the Deputy Minister of Justice, based on that examination, the
attention of the regulation-making authority should be drawn.
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3. (1) Sous
réserve des règlements d’application de l’alinéa 20a), l’autorité
réglementante envoie chacun de ses projets de règlement en trois exemplaires,
dans les deux langues officielles, au greffier du Conseil privé.
Examen
(2) À la
réception du projet de règlement, le greffier du Conseil privé procède, en
consultation avec le sous-ministre de la Justice, à l’examen des points
suivants :
a) le
règlement est pris dans le cadre du pouvoir conféré par sa loi habilitante;
b) il ne
constitue pas un usage inhabituel ou inattendu du pouvoir ainsi conféré;
c) il
n’empiète pas indûment sur les droits et libertés existants et, en tout état
de cause, n’est pas incompatible avec les fins et les dispositions de la Charte
canadienne des droits et libertés et de la Déclaration canadienne des
droits;
d) sa
présentation et sa rédaction sont conformes aux normes établies.
Avis à
l’autorité réglementante
(3)
L’examen achevé, le greffier du Conseil privé en avise l’autorité
réglementante en lui signalant, parmi les points mentionnés au paragraphe
(2), ceux sur lesquels, selon le sous-ministre de la Justice, elle devrait
porter son attention.
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The Evidence
[7]
When
this matter came on for hearing, there was no information in the Record
describing whether and, if so, in what manner there had been compliance with
section 3 of the SIA. I therefore asked the Respondent to file a post-hearing
affidavit describing the examination undertaken for the Animal Regulations.
The Tooke Affidavit
[8]
Further
to the Court’s request, the Respondent filed an affidavit sworn by Tania Tooke
on October 31, 2007 (the Tooke Affidavit). Therein, the Respondent set out the
steps followed during the drafting, examination and enactment of the Animal
Regulations. The Applicant declined an opportunity to make further oral
submissions on the Tooke Affidavit and instead filed written submissions dated
December 6, 2007.
[9]
The
Tooke Affidavit showed that the significant events in the development of the
Animal Regulations were as follows:
1.
In
December of 1999, through its legal counsel, the NCC provided draft Animal
Regulations to the Regulations Section of the Legislative Services Branch of
the Department of Justice (the Regulations Section).
2.
The examination
of the Animal Regulations under section 3 of the SIA was assigned to two Department
of Justice lawyers in the Regulations Section.
3.
From
December 1999 to May 2001, the Justice Lawyers drafted and undertook the
Examination in consultation with the NCC’s legal staff.
4.
The
NCC also sent the Animal Regulations and its draft of the Regulatory Impact
Analysis Statement (RIAS) to the Regulatory Affairs Division of the Regulatory
Affairs and Orders in Council Secretariat (the Secretariat). It represents
the Clerk of the Privy Council in the regulatory process. Officials in the
Regulatory Affairs Division conducted an initial review of the Animal
Regulations to ensure that they complied, inter alia, with the
requirements of subsection 3(2) of SIA.
5.
Once
the Regulations Section completed its Examination, the Animal Regulations were
“blue stamped”. Blue Stamping, in this case, served to communicate to the Secretariat
that the Regulations Section has completed the Examination and that there were
no outstanding issues. A covering letter dated May 30, 2001 to the NCC from the
Regulations Section confirmed that the Examination had been conducted.
6.
The
Minister of Canadian Heritage then signed the Animal Regulations. This had
the effect of formally recommending that the Governor in Council pre-publish
them in the Canada Gazette.
7.
The
NCC then sent the “blue stamped” copies of the Animal Regulations to the Secretariat
and both its Regulatory Affairs Division and its Order in Council Division (together
the Divisions) verified the completion of the Examination.
8.
Then
the Animal Regulations and related documents were sent to a Cabinet Committee
called The Special Committee of Council (the Special Committee). It authorized
the pre-publication of the Animal Regulations in the Part I of the Canada
Gazette. That occurred on August 18, 2001.
9.
The
Animal Regulations were “blue stamped” a second time on February 13, 2002. Each
page bore a Department of Justice logo and the words: “Examined by the
Regulations Section of the Department of Justice – Examiné par la Section de la
réglementation du ministère de la Justice”.
10.
The “blue
stamped” copies received a recommendation for enactment from the Minister of
Heritage and were returned to the Secretariat with all the supporting
documents. Both Divisions again reviewed them. In that review, the Regulatory
Affairs Division acted on the Clerk’s behalf to ensure that there had been an examination
under subsection 3(2) of the SIA. The Secretariat then prepared a briefing note
for the Special Committee and it recommended to the Governor General that the
Animal Regulations be made.
11.
The
Governor General then made the Animal Regulations. Thereafter, they were
registered with the Registrar of Statutory Instruments on April 25, 2002 as S.O.R./2002-164
and were published in the Canada Gazette Part I on Wednesday, May 8,
2002.
[10]
Based
on this evidence, it is my view that the Justice Lawyers performed two
functions in tandem. They completed the drafting of the Animal Regulations for
the NCC and, while drafting, they conducted the Examination pursuant to
subsection 3(2) of the SIA.
The Issue
[11]
The
issue is whether the communications which contained the advice given by the Justice
Lawyers to the NCC during the drafting and Examination of the Animal
Regulations and the communications which contained the advice given to the
Clerk by or on behalf of the Deputy Minister of Justice during the Examination are
exempt under section 23 of the Act on the basis of subject and solicitor-client
privilege.
[12]
It
is noteworthy that the Applicant is not interested in advice given concerning drafting
issues. His sole interest is the advice given by the Justice Lawyers to the NCC
and to the Clerk about whether the NCC could properly make the Animal
Regulations. The Applicant’s thesis is that the Animal Regulations cover a
broad range of topics which the NCC has no authority to regulate.
The Standard of Review
[13]
Solicitor
and client privilege is an issue at the heart of the administration of justice
and for this reason decisions about the existence of the privilege will often
be reviewed on a standard of correctness. However, in Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
60, the Supreme Court of Canada suggests that even such fundamental questions
may be reviewed on a reasonableness standard if the subject matter is within an
adjudicator’s area of expertise.
[14]
In
this case, it was the Minister of Justice or his delegates who decided that the
Exempt Material was privileged. Such a decision was well within their expertise
and therefore it will be reviewed using reasonableness as the standard of
review.
Applicant’s Submissions
[15]
The
Applicant says that no solicitor and client relationship was created between
the NCC and the Clerk when the NCC submitted the Animal Regulations for
Examination. For this reason, he says that no privilege existed when the
Justice Lawyers provided their opinions during the Examination.
[16]
In
the alternative, the Applicant said that the Clerk’s letter of May 30, 2001
advising the NCC that the Examination had been completed without issue, waived
privilege in the advice the Clerk had received from lawyers in the Department
of Justice.
Discussion
[17]
The
four fundamental conditions necessary to establish that communications are
subject to solicitor-client privilege appear in Wigmore on Evidence, 3rd
ed. (McNaughton Revision, 1961), vol. 8 at para. 2285. They have been
adopted by the Supreme Court of Canada. In Slavutych v. Baker, [1976] 1
S.C.R. 254, the Court described the conditions as follows:
1.
The communications
must originate in a confidence that they will not be disclosed.
2.
The element of confidentiality
must be essential to the full and satisfactory maintenance of the relation
between the parties.
3.
The relation must be
one which in the opinion of the community ought to be sedulously fostered.
4.
The injury that would
inure to the relation by disclosure of the communications must be greater than
the benefit thereby gained for the correct disposal of litigation.
[18]
On
the necessity of solicitor-client privilege, I note the following statement by
the Supreme Court of Canada in Pritchard v. Ontario (Human Rights
Commission),
2004 SCC 31, [2004] 1 S.C.R. 809. There, at paragraph 18, the Court
adopted the following language which had been used by Arbour J. and Major J. in
earlier decisions:
…solicitor-client
privilege must be as close to absolute as possible to ensure public confidence
and retain relevance. As such, it will only yield in certain clearly defined
circumstances, and does not involve a balancing of interests on a case-by-case
basis. [Emphasis in original]
[19]
Further,
in Pritchard at paragraph 19, the Supreme Court considered the position
of government lawyers. It said:
Solicitor-client
privilege has been held to arise when in-house government lawyers provide legal
advice to their client, a government agency: see R. v. Campbell, [1999]
1 S.C.R. 565, at para. 49…where government lawyers give legal advice to a
“client department” that traditionally would engage solicitor-client privilege,
and the privilege would apply…
[20]
Applying
these principles to this case, I agree with the Applicant that there was no
solicitor and client relationship between the NCC and the Clerk. However, that
conclusion does not dispose of the matter because, in my view, the facts of
this case disclose two solicitor and client relationships. The first
existed between the Clerk and the Justice Lawyers. When the Clerk was provided
with their advice about whether the Animal Regulations complied with subsection
3(2) of the SIA, it was a privileged communication. The second solicitor and
client relationship was formed between the NCC and the Justice Lawyers when
they advised the NCC about compliance with subsection 3(2) of the SIA in the
context of drafting the Animal Regulations. Those communications were also
privileged.
[21]
I
have also considered whether the Clerk’s letter to the NCC waived privilege and
have concluded that it did not constitute a waiver because it did not disclose
any of the advice he had been given by the Justice Lawyers. It simply reported
that he had fulfilled his statutory obligation under section 3(2) of the SIA.
Other
Submissions
[22]
The
Applicant has also asked me to determine whether the Examination was properly
conducted and whether the Clerk was obliged to issue a report when the examination
was complete. However, I have concluded that these issues are not relevant
because, under s. 41 of the Act, this application is limited to a review of the
Respondent’s decision to withhold the Exempt Material.
Conclusion
[23]
For
all these reasons, I have concluded that the Decision is reasonable because the
Exempt Material is the subject of solicitor and client privilege and by reason
of section 23 of the Act need not be produced in response to the Applicant’s
Access Requests.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application is
hereby dismissed.
“Sandra
J. Simpson”
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