[1] Sheldon Blank and his corporation Gateway Industries Ltd. have requested access under the Access to Information Act, R.S.C. 1985, c. A-1, to a number of documents under the control of the Minister of the Environment. The documents relate to the investigation and prosecution of criminal charges relating to effluent allegedly discharged into the Red River from a paper mill in Winnipeg that is owned and operated by Gateway Industries Ltd.

[2] The criminal charges were laid in 1995 under the Fisheries Act, R.S.C. 1985, c. F-14. Some of the charges have been quashed, but others remain outstanding. With respect to the outstanding charges, the appellants have been seeking certain disclosures through the criminal courts of Manitoba on the basis of R. v. Stinchcombe, [1991] 3 S.C.R. 326. The appellants are dissatisfied with the disclosures obtained in that process. That dissatisfaction is part of the motivation for their continuing efforts under the Access to Information Act.

[3] The Minister responded to the requests for information by disclosing some documents in whole or in part and refusing to disclose others. The refusals were based on the basis of a number of statutory exemptions. The appellants complained to the Information Commissioner, who concluded that the appellants have received all of the documents to which they were entitled. The appellants applied to the Trial Division of this Court for a review of the refusals under section 41 of the Access to Information Act. The review was partially successful. It resulted in an order rendered on July 19, 2000 requiring further disclosures: Blank v. Canada (Minister of the Environment), [2000] F.C.J. No. 1147 (F.C.T.D.). The appellants are still not satisfied and have appealed the order. There is no cross-appeal.

[4] When the Commissioner investigated the appellants' complaint, approximately 7,655 pages of material had been reviewed. Prior to the hearing of the section 41 application in the Trial Division, the number of records in issue had been reduced to 544 pages of records and one videotape. After a two day hearing, the Judge ordered full or partial disclosure of a further 153 pages.

[5] The Notice of Appeal identifies approximately 113 pages or partial pages remaining in issue. For 112 of those pages, the claim for exemption is based on section 23 of the Access to Information Act (solicitor-client privilege). For one of the documents, the claim for exemption is based on paragraph 16(1)(c) (information injurious to a lawful investigation).

Statutory background - Access to Information Act, R.S.C. 1985, c. A-1

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.

4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person ... has a right to and shall, on request, be given access to any record under the control of a government institution.

4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande_:

a) les citoyens canadiens;

b) les résidents permanents au sens de la Loi sur l'immigration.

16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains ...

16. (1) Le responsable d'une institution fédérale peut refuser la communication de documents_:

(c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information

c) contenant des renseignements dont la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment_:

(i) relating to the existence or nature of a particular investigation

(i) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée,

(ii) that would reveal the identity of a confidential source of information, or

(ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle,

(iii) that was obtained or prepared in the course of an investigation ...

(iii) des renseignements obtenus ou préparés au cours d'une enquête; ...

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.

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.

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.

41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter ...

41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, ... exercer un recours en révision de la décision de refus devant la Cour. ...

48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.

48. Dans les procédures découlant des recours prévus aux articles 41 ou 42, la charge d'établir le bien-fondé du refus de communication totale ou partielle d'un document incombe à l'institution fédérale concernée.

49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.

49. La Cour, dans les cas où elle conclut au bon droit de la personne qui a exercé un recours en révision d'une décision de refus de communication totale ou partielle d'un document fondée sur des dispositions de la présente loi autres que celles mentionnées à l'article 50, ordonne, aux conditions qu'elle juge indiquées, au responsable de l'institution fédérale dont relève le document en litige d'en donner à cette personne communication totale ou partielle; la Cour rend une autre ordonnance si elle l'estime indiqué.

Preliminary legal issues

[6] A number of legal issues were raised in this appeal. It is convenient to deal with three of them on a preliminary basis: (1) the treatment of documents incorporated by reference into requested records, (2) the extent to which Stinchcombe is relevant, and (3) whether the severance rule in section 25 applies to records for which an exemption is claimed under section 23 (solicitor-client privilege).

(1) Documents incorporated by reference

[7] The appellants argue that they should be entitled to disclosure of any records "incorporated by reference" into the records that have or should have been disclosed in whole or in part. To assess this argument, it must be recognized that each of the appellants' requests for information referred to specific files in the control of the Minister. Some of the documents in the requested files are letters or memoranda that refer to attachments or to other documents that may or may not have been in the requested files. The appellants argue that those attachments or other documents should be treated as being within the scope of the requests because if they were not actually in the requested files, they should have been in the files and should be treated as though they were in the files.

[8] This argument assumes that the Minister's files were somehow incomplete. There is no factual foundation for that assumption. On the contrary, the Information Commissioner who investigated the matter concluded that all records within the scope of the request had been identified and either disclosed or withheld on the basis of an identified exemption. The appellants have adduced no evidence to contradict the Information Commissioner's conclusion. It follows that this argument must fail.

(2) The Stinchcombe principle

[9] The appellants assert that the Minister's untimely and inadequate response to the requests for information is motivated by a desire to limit the appellants to the disclosure provided in the criminal proceedings, which as indicated above the appellants also consider to be inadequate. The thrust of the appellants' complaint, as I understand it, is that any material that should have been disclosed in the course of the criminal proceedings under the Stinchcombe principles, and has not been disclosed to date, should now be disclosed in response to their request under the Access to Information Act.

[10] There is no evidence that the Minister's response to the appellants' requests for information is improperly motivated, but in any event it would be wrong in principle to use Stinchcombe as the appellants would wish. The foundation of the right to disclosure recognized in Stinchcombe is the right of a person accused of a criminal offence to a fair hearing and to make full answer and defence (Sopinka, Lederman, Bryant, The Law of Evidence in Canada, 2^nd ed. 1999, Butterworths Canada Ltd. at § 15.30). This right to disclosure is one of the rights now guaranteed by section 7 of the Charter of Rights and Freedoms as a principle of fundamental justice.

[11] The disclosure right recognized in Stinchcombe is critically important to persons facing a criminal trial, but it is a right that must be administered by courts having jurisdiction in criminal proceedings. To try to apply the Stinchcombe rules in the context of proceedings under the Access to Information Act would be to invite the Information Commissioner, and ultimately this Court, to try to anticipate decisions that ought to be made, or to review decisions that have already been made, by a criminal court. In this case, for example, a Manitoba trial judge has already ruled on certain motions relating to Stinchcombe disclosures.

[12] I conclude that in determining whether the appropriate disclosures have been made under the Access to Information Act, the Court should consider only the Act and the jurisprudence guiding its interpretation and application. Laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Access to Information Act.

(3) Severance of documents that contain information that is subject to solicitor-client privilege

[13] The Minister argues that a record that is subject to solicitor-client privilege is not subject to the severance provision in section 25. I do not agree. Section 25 is said to apply "notwithstanding any other provision of this Act". If a document contains a communication that is within the scope of the common law solicitor-client privilege and also contains information that is not within the scope of solicitor-client privilege, the Minister cannot refuse to disclose the latter.

Principal issue - Whether, with respect to the 112 pages of material for which the Minister asserted a claim of solicitor-client privilege, the Judge correctly determined the application of section 23 and section 25

[14] Counsel for the appellant, in attempting to determine whether the order under appeal was based on any error that would require the intervention of this Court, was operating at a significant disadvantage. He was denied access to the documents. He had only a list of particulars provided by counsel for the Minister.

[15] The appellants argue that the Minister should have been required to provide further and better particulars of the documents for which solicitor-client privilege was claimed. Having reviewed all of the documents against the revised list of particulars, I have concluded that the disclosure in the statement of particulars is sufficient, and is also accurate except with respect to one document that I will refer to below.

[16] Another ground of appeal is that counsel for the appellants should be permitted to examine the material for which solicitor-client privilege has been claimed in order to determine for himself whether any argument can be made that the solicitor-client privilege does not apply. He acknowledges that he would be obliged to give appropriate undertakings to keep confidential what he may learn from examining the documents. However, the party claiming the privilege cannot be sure that counsel for the opposing party, however willing and conscientious, will be able to erase knowledge gained from the documents. As a practical matter, to permit opposing counsel to view the documents would risk destroying the privilege.

[17] Claims of solicitor-client privilege are typically dealt with as they have been in this case, with the party challenging the privilege being given particulars about the documents rather than access to the documents themselves. The result is that the documents are reviewed in detail only by the Court. In the first instance, the challenging party is compelled as a matter of necessity to rely on the judge or, as in this case, commence an appeal without being able to specify what errors might have been committed. The appellate court is then forced to look over the shoulder of the judge at first instance and reach its own conclusion as to whether the privilege applies. No other procedure has been devised that can ensure a reasonable review of the solicitor-client privilege claim without destroying it. There is no reason to depart from that practice in this case.

[18] Accordingly, this Court has reviewed all of the documents in issue with a view to considering anew the Minister's claims for solicitor-client privilege. For the reasons below, the claims should be upheld except with respect to record 1878.

[19] Almost all of the documents in issue are letters or memoranda representing communications between solicitor and client (the client being the Department of the Environment as represented by various officials investigating of the alleged criminal offences, the solicitor being a lawyer with the Department of Justice or a lawyer with the Department of the Environment). Those communications either seek or give legal advice, or represent an integral part of the ongoing dialogue relating generally to the matter of the criminal charges, in which the legal advice is expressly or implicitly referred to.

[20] Counsel for the appellant pointed out that not all communications between solicitor and client are privileged and that, especially in the case of lawyers employed by government, advice sought or given may sometimes relate to matters of policy rather than law. While that is true in theory, in this case I was unable to identify any advice sought or given that could not properly be characterized as legal advice.

[21] For all of the documents in issue in this case that represent solicitor-client communications, the Judge could properly have allowed the claim of privilege for the entire document. He did so in most instances while in others he required disclosure of part of the document.

[22] The instances in which partial disclosure was ordered fall into two categories. In one category, disclosure was ordered of certain statements in the communication that were purely factual. It is arguable that those factual statements should not have been ordered disclosed because in each case they are inextricably linked to the legal issue under discussion that they ought to be treated as part of the privileged communication. To that extent, there may have been over-disclosure of some privileged documents. However, as the Minister has not cross-appealed, the order of the Judge will not be varied on that account.

[23] In the second category are letters and memoranda in which disclosure was ordered of the part of the document showing what I would characterize as general identifying information: the description of the document (for example, the "memorandum" heading and internal file identification), the name, title and address of the person to whom the communication was directed, the subject line, the generally innocuous opening words and closing words of the communication, and the signature block. The partial disclosures in this category enable the appellants to know that a communication occurred between certain persons at a certain time on a certain subject, but no more.

[24] There may be instances in which such general identifying information might be subject to solicitor-client privilege. However, the Minister has provided no evidence upon which I can conclude that this is such a case. Strictly speaking, therefore, the Judge could and should have ordered the disclosure of general identifying information for every letter or memorandum containing a privileged communication. As a practical matter, however, the most important identifying information is already found in the list of particulars. Varying the order of the Judge to require further disclosure of identifying information is not necessary at this stage and I would decline to do so.

[25] It is appropriate to note here that, despite being permitted to review only the list of particulars, counsel for the appellant has been able to determine that the Judge reached different conclusions on different copies of the same document (for example, records 254 and 2323), ordering no disclosure for one copy and partial disclosure for another. Closer examination reveals a number of other instances of inconsistent conclusions of that nature.

[26] The instances in which the Judge reached inconsistent conclusions fall into two categories that parallel the categories described above for solicitor-client communications. That is, there are some letters or memoranda where one copy was held to be completely exempt from disclosure, while for the other copy disclosure was required of the general identifying information. There are other letters or memoranda where one copy was held to be completely exempt from disclosure while for the other copy disclosure was required of certain factual statements. I found no instance involving inconsistent conclusions where the Judge erred by applying the solicitor-client privilege to information that was not privileged (except in relation to general identifying information). Therefore, the fact that there are inconsistent conclusions in some instances does not disclose any error on the part of the Judge that warrants a variation of his order.

[27] The documents in issue also include communications that are not between solicitor and client, but between officials of the client department. In each case, the document or portion of the document that has not been ordered disclosed contains a description or discussion of legal advice sought or to be sought, or legal advice obtained. Those undisclosed portions are privileged.

[28] I now come to the one document, record 1878, for which the description in the statement of particulars was inaccurate. The statement of particulars gives the impression that this is a copy of a communication between officials of the client department. In fact, it is a copy of a letter from an official of the Department of the Environment to the City of Winnipeg asking for information about charges imposed by the City of Winnipeg on Gateway Industries Ltd. in respect of the municipal industrial waste surcharge. That communication might theoretically be protected from disclosure under the head of litigation privilege, which I understand to be included within solicitor-client privilege, except for the following principle stated by Sopinka, Lederman, Bryant, The Law of Evidence in Canada, 2^nd ed. 1999, Butterworths Canada Ltd. at § 14.44:

A prerequisite for the creation of privilege is that the communication be made in confidence.

[29] In the case of most solicitor-client communications, including those in issue in this case, the element of confidentiality is inferred on the basis of the subject of the communication and the surrounding circumstances. However, it is more difficult to support such an inference for a third party communication. There is nothing in record 1878 itself, or the surrounding circumstances, that would support such an inference for that record. The Minister has not provided any evidence from which the element of confidentiality may be found for record 1878. I conclude that the Minister has not met the onus of establishing that the exemption in section 23 applies to record 1878.

Record 4144 - exemption under paragraph 16(1)(c)

[30] With respect to record 4144, the Judge correctly ordered disclosure only of the portions of this document that referred to completed investigations.

Consent order for disclosure of certain sealed documents

[31] The relief sought by the appellant includes an order permitting the appellants to examine 176 records sealed in Court for which the claim for exemption was removed by the Minister on or about April 20, 1999. Counsel for the appellants indicates that the records in question are those listed at page 183 of the Appellants' Appeal Book, Volume II.

[32] Counsel for the Minister indicated at the hearing of the appeal, apparently without reviewing the documents himself, that he would consent to an order to that effect on the basis that all of those documents have already been disclosed in the course of the criminal proceedings. I agree that the requested order should be made.

[33] However, I note that one of the documents said to have been disclosed in the criminal proceedings is record 1759. According to the notice of appeal and the order of the Motions Judge, record 1759 contains some information that, in these proceedings, continues to be subject to a valid solicitor-client privilege claim. I assume that the copy of document 1759 that has already been disclosed to the appellant in the criminal proceedings did not include the privileged portion, but I do not know whether that is the case. The order should state that the copy of record 1759 that is disclosed to the appellant order will not include any portion of the record for which the claim of solicitor-client privilege has been asserted and is upheld in this appeal, unless the privileged portion has already been disclosed to the appellant in the course of the criminal proceedings.

Award of costs in the Trial Division

[34] The Judge awarded costs to the appellants but made no special direction as to the scale of costs. The appellants appeal the award of costs on the basis that the Judge should have awarded costs on a solicitor and client scale. It appears that the appellants had the opportunity to make submissions on costs before judgment was rendered, but declined to do so. They also failed to have recourse to Rule 403. In my view, that compels the conclusion that the Judge did not err in awarding costs as he did. I would add, however, that there is nothing in the record relating to the conduct of this matter that would justify an award of solicitor and client costs in the Trial Division.

Conclusion

[35] The appeal should be dismissed except for the following:

(a) The appellants should be entitled to disclosure of record 1878.

(b) The respondents having consented, the appellants should be permitted to examine the records listed at page 183 of the Appellants' Appeal Book, Volume II, except that portion of record 1795 for which the claim of solicitor-client privilege has been upheld in this appeal, unless the privileged portion has already been disclosed to the appellant in the course of the criminal proceedings.

[36] As the appeal was substantially unsuccessful, no costs should be awarded.

"K. Sharlow"

J.A.

"I agree

B.L. Strayer J.A."

"I agree

A.M. Linden J.A."

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Sheldon Blank & Gateway Industries Ltd. v. Canada (Minister of the Environment), 2001 FCA 374

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2001 FCA 374