Date: 20130417
Docket: A-375-12
Citation: 2013 FCA 104
CORAM: EVANS
J.A.
STRATAS
J.A.
NEAR
J.A.
BETWEEN:
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS and THE MINISTER OF
JUSTICE CANADA
Appellants
and
THE
INFORMATION COMMISSIONER OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
Ministers appeal from a decision of the Federal Court (per Justice
Gleason) dated July 12, 2012: 2012 FC 877.
[2]
Acting
under the Access to Information Act, R.S.C. 1985, c. A-1, the Federal
Court ordered that all of a particular protocol should be disclosed to a person
seeking access to it. The Protocol sets out the procedures to be followed by
the Department of Justice and the RCMP when RCMP documents are sought in civil
litigation against the federal Crown.
[3]
In
this Court, the appellant Ministers submit that none of the Protocol should be
disclosed. All is covered by the solicitor-client exemption under the Act. The
respondent Information Commissioner says that all of the Protocol should be
disclosed. None of it is covered by the solicitor-client exemption under the
Act.
[4]
For
the reasons set out below, I largely agree with the Information Commissioner.
All but a small portion of the Protocol should be disclosed. That small portion
is covered by the exemption for solicitor-client privilege. Accordingly, I
would allow the appeal in part.
[5]
As
a matter of discretion, the access coordinators of the Department of Justice
and the RCMP could decide to disclose the small portion covered by
solicitor-client privilege. Accordingly, I would remit the small portion to the
access coordinators for their reconsideration.
A. The request for the
Protocol
[6]
The
RCMP and the Department of Justice received a request under the Act for the
Protocol. They disclosed it, but excised everything except its title and the
signatories to the document.
[7]
The
Protocol is entitled “Principles to Implement Legal Advice on the Listing and
Inspection of RCMP Documents in Civil Litigation.” It is available to relevant
personnel in the RCMP and the Department of Justice. The Protocol sets out the
roles of the RCMP and the Attorney General and the procedures to be followed
when the RCMP possesses documents relevant to civil litigation against the
federal Crown. The signatories are Assistant Commissioner William Lenton, RCMP
Director of Federal Services, and James D. Bissell, Assistant Deputy Attorney
General.
[8]
In
resisting disclosure under the Act, the RCMP and the Department of Justice
invoked two exemptions: “solicitor-client privilege” (section 23) and “advice
or recommendations developed by or for a government institution or a minister
of the Crown” (paragraph 21(1)(a)).
B. Proceedings before the
Information Commissioner of Canada
[9]
Faced
with the refusal of the RCMP and the Department of Justice to disclose the
substance of the Protocol, the requester complained to the Information
Commissioner under section 30 of the Act, alleging that the Protocol does not
fall within any exemptions to disclosure under the Act.
[10]
The
Information Commissioner conducted an investigation, examined the Protocol and a
number of documents leading up to it, and concluded that the Protocol did not
fall within the exemptions.
[11]
Having
reached that conclusion, the Information Commissioner applied to the Federal
Court under section 42 of the Act, seeking disclosure of the Protocol.
C. Proceedings
in the Federal Court
[12]
The
Federal Court granted the Information Commissioner’s application, agreeing with
her that the Protocol did not fall within the exemptions.
[13]
First,
on the issue of solicitor-client privilege, the Federal Court noted that
certain formal matters worked against the existence of the privilege (at
paragraph 25):
…the Protocol was negotiated;
legal advice is not the subject of negotiation between solicitor and his or her
client. In addition, the Protocol is signed by both the putative lawyer (the
DOJ) and the putative client (the RCMP); a communication providing or seeking
legal advice is not typically signed by both the client and the lawyer.
[14]
However,
in the core of its decision, the Federal Court concluded that the Protocol does
not contain legal advice, nor is it concerned with providing legal advice.
Instead (at paragraph 25),
…it is an agreement [in
which]…the parties have moved past the stage of seeking or providing advice and
have entered into a document that reflects their understanding as to their
respective roles and obligations regarding the way in which they will operate
when the RCMP is in possession of documents, obtained through its criminal
investigative powers, that might be relevant in civil litigation against the
federal Crown.
[15]
The
Federal Court concluded that the Protocol was no different from other memoranda
of understanding or agreements that the Department of Justice has entered into
with other departments.
[16]
Next,
on the issue of the exemption for advice, the Federal Court found that the Protocol
was not, in itself, advice but rather an agreement setting out respective roles and responsibilities. Further, the Federal Court
noted that it could not tell from the text of the Protocol whether it reflected
earlier legal advice obtained by the DOJ. Accordingly, in the Court’s view, disclosing the
Protocol would “in no way harm the interests that the exemption…is designed to
protect” (at paragraph 32).
[17]
The
Ministers appeal to this Court. They submit that the solicitor-client exemption
applies. Further, they submit that the access to information coordinators
properly exercised their discretion not to disclose the Protocol.
D. Analysis
(1) The standard of review
[18]
The
parties agree on the standard of review. The question whether the exemptions
apply is reviewed on the basis of correctness. The question whether the
discretion was properly exercised is reviewed on the basis of reasonableness.
See, for example, Canada (Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 254 at paragraph 47.
[19]
In
this Court, the parties agreed that the Federal Court’s characterizations of
the Protocol, to the extent they are suffused by matters of fact, can only be
set aside on the basis of palpable and overriding error: Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney
General), 2005 SCC 25, [2005] 1 S.C.R. 401.
(2) The
solicitor-client privilege exemption (section 23)
(a) A
preliminary consideration
[20]
In
their memorandum of fact and law, the Ministers addressed the issue of
solicitor-client privilege as an all-or-nothing matter: either the whole
Protocol is privileged or none of it is privileged.
[21]
This
overlooks the fact that sometimes only part of a document is privileged. Further,
the Act does not regard disclosure as an all-or nothing matter. Indeed, under
section 25 of the Act, a head of a government institution must sever any part
of a record that does not contain exempt material if it can be reasonably
severed. If only part of the Protocol is privileged, the issue of severance
must be addressed.
(b) General
principles
[22]
The
parties broadly agree on the general principles to be applied. Indeed, the
Ministers conceded that at paragraphs 15-22 of its reasons the Federal Court
correctly stated the general principles.
[23]
Throughout
their submissions in this Court, the Ministers stressed the importance of
solicitor-client privilege, relying upon broad statements in cases such as Solosky
v. The Queen, [1980] 1 S.C.R. 821; Descôteaux v. Mierzwinski, [1982]
1 S.C.R. 860, Pritchard v. Ontario (Human Rights Commission), 2004 SCC
31, [2004] 1 S.C.R. 809, and Canada (Privacy Commissioner) v. Blood
Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574.
[24]
However
“fundamental,” “all-encompassing” and “nearly absolute” the privilege may be, these
cases confirm that not everything uttered by a lawyer to a client is privileged:
see, e.g., Pritchard, supra, at paragraph 20; Blood
Tribe, supra, at paragraph 10. Before us, counsel for the Ministers
quite properly conceded that comments by lawyers to clients about matters
wholly unrelated to their solicitor-client relationship are not privileged.
[25]
Rather,
communications must be viewed in light of the context surrounding the
solicitor-client relationship and the relationship itself: Pritchard, supra
at paragraph 20; Miranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193 at
paragraph 32. In particular, heed must be paid to the nature of the
relationship, the subject-matter of what is said to be advice, and the
circumstances of the document in issue: R. v. Campbell, [1999] 1 S.C.R.
565 at paragraph 50.
[26]
All
communications between a solicitor and a client directly related to the
seeking, formulating or giving of legal advice are privileged, along with communications
within the continuum in which the solicitor tenders advice. See Samson
Indian Nation and Band v. Canada, [1995] 2 F.C. 762 at paragraph 8.
[27]
Part
of the continuum protected by privilege includes “matters great and small at
various stages…includ[ing] advice as to what should prudently and sensibly be
done in the relevant legal context” and other matters “directly related to the
performance by the solicitor of his professional duty as legal advisor to the
client.” See Balabel v. Air India, [1988] 2 W.L.R. 1036 at page 1046 per
Taylor L.J.; Three Rivers District Council v. Governor and Company of the
Bank of England, [2004] UKHL 48 at paragraph 111.
[28]
In
determining where the protected continuum ends, one good question is whether a communication
forms “part of that necessary exchange of information of which the object is
the giving of legal advice”: Balabel, supra at page 1048. If so,
it is within the protected continuum. Put another way, does the disclosure of
the communication have the potential to undercut the purpose behind the
privilege – namely, the need for solicitors
and their clients to freely and candidly exchange information and advice so
that clients can know their true rights and obligations and act upon them?
[29]
For
example, where a Director of a government department receives legal advice on
how certain proceedings should be conducted and the director so instructs those
conducting proceedings, the instructions, essentially cribbed from the legal
advice, form part of the continuum and are protected: Minister of Community
and Social Services v. Cropley (2004), 70 O.R. (3d) 680 (Div. Ct.).
Disclosing such a communication would undercut the ability of the director to
freely and candidly seek legal advice.
[30]
In
some circumstances, however, the end products of legal advice do not fall
within the continuum and are not privileged. For example, many organizations
develop document management and document retention policies and circulate them
to personnel within the organization. Often these are shaped by the advice of
counsel. However, such policies are usually disclosed, without objection, because
they do not form part of an exchange of information with the object of giving
legal advice. Rather, they are operational in nature and relate to the conduct
of the general business of the organization.
[31]
Similarly,
an organization might receive plenty of legal advice about how to draft a
policy against sexual harassment in the workplace. But the operational
implementation of that advice – the policy and its circulation to personnel
within the organization for the purpose of ensuring the organization functions
in an acceptable, professional and business-like manner – is not privileged,
except to the extent that the policy communicates the very legal advice given
by counsel.
[32]
In
argument before us, counsel for the Ministers quite properly conceded that
policies of these sorts are not covered by the privilege.
[33]
It follows,
then, that I agree with the Federal Court’s suggestion (at paragraph 25) that documents
and actions shaped by legal advice are not necessarily themselves legal advice
and do not necessarily form part of the protected continuum of communication.
There are occasions where parties have moved “past the stage of seeking or
providing advice,” i.e., beyond the protected continuum, and start to
act on the advice for the purposes of conducting their regular business.
(c) The
Federal Court’s application of these principles
[34]
As
previously mentioned, the Federal Court characterized the Protocol not as legal
advice or within the continuum of legal advice but rather as a statement of the
respective roles of the RCMP and the Department of Justice and the procedures
they will follow when RCMP documents may be relevant in civil litigation.
[35]
For
the purposes of this appeal, I would divide the seventeen paragraph Protocol
into two parts: the first three paragraphs and the last fourteen paragraphs. In
my view, there is no ground to interfere with the Federal Court’s characterization
of the last fourteen paragraphs of the Protocol. That characterization is
founded upon a number of factual findings made by the Federal Court (at
paragraphs 25-26) that stand absent any demonstration of palpable and
overriding error. The Ministers have not demonstrated any such error. However,
the first three paragraphs embody legal advice and are covered by
solicitor-client privilege.
The last fourteen
paragraphs of the Protocol
[36]
The
last fourteen paragraphs of the Protocol are a negotiated and agreed-upon
operational policy formulated after any legal advice has been given and after
any continuum of communication that is necessary to be protected in light of
the purposes behind the privilege. They resemble the sort of document
management policy seen in many organizations. As the Federal Court found, the
fourteen paragraphs define the respective roles of the RCMP and the Department
of Justice and set out procedures they should follow concerning documents held
by the RCMP. The fourteen paragraphs guide personnel in the RCMP and the
Department of Justice who are engaged in the day-to-day, operational business
of locating RCMP documents for the purpose of disclosing them in litigation.
Nothing is said about any legal obligations.
[37]
The
Protocol itself is an agreement. This is not just an insignificant matter of
form. Rather, it affects how one characterizes the substance of the communication:
the roles and procedures defined in the Protocol are a product of negotiation
and compromise. They do not necessarily embody or reflect any advice previously
given.
[38]
On
this, the Federal Court noted that it impossible to say whether the matters set
out are consistent with or conflict with any earlier legal advice. I agree.
Indeed, it is impossible to tell whether or not they are based on any earlier
legal advice. Thus, disclosing this policy discloses nothing about the content
of any earlier legal advice or related communications and does not in any way
undercut the purposes served by solicitor-client privilege.
[39]
In
this regard, the case at bar differs from Cropley, supra. In Cropley,
the instructions disseminated by the Director embodied the legal advice and
were not the product of negotiation and compromise. I agree and adopt the
Federal Court’s conclusion on this point (at paragraph 27):
[Cropley] involved requests
for disclosure of standing instructions and advice to counsel regarding the way
in which litigation was to be conducted, which were drafted by in-house counsel
for the Ministry and were intended to be provided to counsel retained to act on
behalf of the Ministry. Here, on the other hand, the Protocol does not provide
advice or instructions, but, as noted, reflects an agreement between the DOJ
and the RCMP regarding their respective roles and responsibilities.
[40]
The
Ministers submitted that the Federal Court fastened only on whether the
Protocol gave legal advice and not whether the Protocol was part of the
continuum of communication associated with the giving and receiving of legal
advice. I disagree. The Federal Court was alive to the fact that there is a
protected continuum of communication, as is well-seen by its consideration of
the Cropley case.
[41]
Were
the Ministers’ submissions on the scope of the protected continuum accepted,
all acts and communications taking place after legal advice is dispensed and
relating to any subject-matters covered by the legal advice would be
confidential. As a result, many departments’ operational policies and memoranda
of agreement between departments – currently public – might suddenly become
confidential even though they do not disclose advice or other communications
essential to the purposes served by the privilege.
[42]
In
my view, that would overshoot the mark. The scope of confidentiality would be
extended beyond any of the purposes served by solicitor-client privilege –
there would simply be secrecy for secrecy’s sake.
[43]
Accordingly,
like the Federal Court, and for many of its reasons, I find the last fourteen
paragraphs of the Protocol are not privileged.
The first three
paragraphs of the Protocol
[44]
The
first three paragraphs of the Protocol are different. They memorialize, as
background, the content of certain legal obligations of the federal Crown for
the benefit of the RCMP and the Department of Justice and their personnel
engaged in document management.
[45]
This
is legal advice falling under the exemption in section 23 of the Act.
Accordingly, the first three paragraphs of the Protocol are privileged and can
be kept confidential.
(3) The access
coordinators’ discretion not to disclose the Protocol
[46]
I
have found that the last fourteen paragraphs of the Protocol are not exempt and
should be released to the requester. However, the first three paragraphs remain
exempt. That is not the end of the matter – as a matter of discretion, the
access coordinators could still release those three paragraphs.
[47]
As
previously mentioned, the access coordinators exercised their discretion
earlier against disclosing the whole Protocol, a document they viewed as wholly
exempt. Now, in light of these reasons, the vast majority of the document is not
exempt and must be disclosed.
[48]
Certain
new questions for the consideration of the access coordinators now arise. Given
these reasons, might they now release the first three paragraphs? Might the
disclosure of the first three paragraphs bolster in the eyes of the public the
credibility and soundness of the documentary procedures the RCMP and Department
of Justice are following? Might there now be a greater public interest in
disclosing the paragraphs? Or are there still important considerations that warrant
keeping the first three paragraphs confidential?
[49]
These
questions are for the access coordinators to decide afresh. That discretion is
to be exercised mindful of all of the relevant circumstances of this case, the
purposes of the Act, and the principles set out in Ontario (Public Safety
and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1
S.C.R. 815 at paragraph 66.
E. Proposed
disposition
[50]
For
the foregoing reasons, I would allow the appeal in part. In paragraph 2 of the
Federal Court’s judgment, after the words “[t]he respondents shall disclose,” I
would add the words “the last fourteen paragraphs of.”
[51]
I
would remit to the access coordinators of the RCMP and Department of Justice
the question whether, as a matter of discretion, the first three paragraphs of
the Protocol should be disclosed even though they are exempt from disclosure under the Act under section 23 of the Act as
privileged solicitor-client communications.
[52]
The
respondent Information Commissioner has not sought her costs and so none shall
be awarded.
“David Stratas”
“I
agree.
John
M. Evans J.A.”
“I
agree.
D.G.
Near J.A.”
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