Date:
20070308
Docket: A-123-06
Citation: 2007 FCA 101
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
SHELDON BLANK
Appellant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
As I understand
the claims of Mr. Blank, who is self-represented, this appeal from an order of
Kelen J. of the Federal Court of Canada (judge) raises the following issues:
(a) whether
the judge erred in allowing the parties to make representations to the Court
regarding the filing of revised confidential affidavits;
(b) whether
the judge erred in receiving the respondent’s representation in camera
on an ex parte basis;
(c) whether the judge erred in allowing the
respondent to file confidential affidavits; and
(d) whether
the judge erred in not ordering the disclosure of material that the respondent
chose not to file in the record.
Facts and procedure
[2]
The issues
arise in the context of a request for access to information for which the
respondent claimed solicitor-client privilege as a justification for his
refusal to disclose certain parts of the requested records. The appellant
brought four applications for judicial review pursuant to section 41 of the Access
to Information Act, R.S.C. 1985, c. A-1, as amended (Act). The respondent
sought to file, on a confidential basis, affidavits and information relating to
an investigation by the Information Commissioner. His request was granted by
the Federal Court. The appellant appealed the decision; Blank v. Canada (Minister of Justice), 2005 FCA 405.
[3]
On appeal,
this Court held at paragraph 10 of the reasons for judgment that “where the
government files material explaining its reasons for refusing to disclose
records, subsection 47(1) will apply to portions of the material that would
disclose the basis of the government’s confidentiality claim”. Subsection 47(1)
reads:
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47.(1) In any proceedings before the Court
arising from an application under section 41, 42 or 44, the Court shall take
every reasonable precaution, including, when appropriate, receiving
representations ex parte and conducting hearings in camera, to
avoid the disclosure by the Court or any person of
(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 disclose the record under this Act, does not
indicate whether it exists.
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47.(1) À l’occasion des procédures relatives aux
recours prévus aux articles 41, 42 et 44, la Cour prend toutes les
précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences
à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter
que ne soient divulgués de par son propre fait ou celui de quiconque :
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.
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[4]
As it appears from
the provision, the Court is mandated to take precautions to prevent the
disclosure of “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” or “any information as to whether a record exists where the head of a
government institution, in refusing to disclose the record under the Act, does
not indicate whether it exists”.
[5]
This Court also ruled
that the Commissioner’s obligation of confidentiality under sections 35 and 62
of the Act does not entitle the respondent to have treated as confidential the
material pertaining to the investigation by the Commissioner upon which the
respondent seeks to rely: see paragraphs 15 and 16 of the reasons for judgment.
[6]
Consequently, the
above material that the respondent wanted to file confidentially, either in
whole or in part, would be subject to section 47 of the Act and to Rules 151
and 152 of the Federal Courts Rules (Rules): ibidem, at paragraph
17. Of course, the respondent could elect not to file such material or to file
it publicly.
[7]
Finally, this Court
held that the issue of confidentiality of the said material had to be decided
by the motions judge before the hearing of the merits of the section 41
applications. Consequently, the matter was remitted to him so that he could
make the determination required under subsection 47(1) of the Act and under
Rule 151 of the Rules: ibidem, at paragraphs 17 and 22.
[8]
Pursuant to this
Court’s decision, the judge issued a direction on December 19, 2005: see appeal
book, volume 1, pages 12 and 13. He invited the respondent to file, with
representations to the Federal Court, revised “confidential affidavits” setting
out the material which the respondent wished to file in confidence. The
appellant was also invited to and did make representations to the judge with
respect to the matter.
[9]
On March 14, 2006,
the judge issued directions advising the parties that he would conduct an in
camera teleconference to receive representations ex parte from the
respondent in accordance with section 47 of the Act. The subject of the
representations would be the letters sent to the Office of the Information
Commissioner that the respondent wanted to include in the confidential
affidavits. The directions indicated that the letters could be ordered removed.
[10]
Finally, on March 15,
2006, the judge issued an order that the confidential affidavits of Kerry Clark
and Helen Ryan, as amended, be filed in confidence pursuant to Rule 151 of the
Rules. It is this order of March 15, 2006 that is the subject of the present
appeal.
Analysis of the grounds of appeal
[11]
While the appeal is
of the March 15, 2006 order, the grounds of appeal raised by the appellant
inappropriately go beyond that order. They also attack the December 19, 2005
order, as well as the March 14, 2006 direction. I will nonetheless address each
ground of appeal.
Whether
the judge erred in allowing the parties to make representations to the Court
regarding the filing of revised confidential affidavits
[12]
It is rare that a
party to a proceeding complains that the judge gave him the opportunity to be
heard. Indeed, it is the first time that I have heard a claim that proceedings
should be set aside because the judge conducted them in a manner that ensured
procedural fairness. The appellant wanted the issue to be decided without the
judge having the benefit of the parties’ views on the nature and character of
the material sought to be filed as confidential.
[13]
The judge’s decision
to hear further representations from the parties so as to ensure compliance
with the decision of this Court was certainly within the Court’s power to
control its own process. The judge adopted a prudent course of action that
increased the fairness of the proceedings.
[14]
I see no merit
whatsoever in this ground of appeal.
Whether
the judge erred in receiving the respondent’s representation in camera
on an ex parte basis
[15]
Subsection 47(1) of
the Act provides expressly for ex parte representations and in camera
hearings to avoid disclosure of information on the basis of which the head of a
government institution is authorized to refuse disclosure of a record. In my
view, the judge was fully justified to take measures, including an in camera
hearing and ex parte representations, to determine what letters to the
Commissioner, if any, should remain confidential. Otherwise, an adversarial
hearing of the matter, whether public or in camera, would have rendered
the exercise illusory.
Whether the judge erred in allowing the respondent to file
confidential affidavits
[16]
It will be recalled
that, in sending the matter back to the motions judge, this Court asked him to
determine whether some of the material that the respondent intended to file
should be filed confidentially in order to avoid disclosure of information
exempted from disclosure under the Act. This is the function that the judge
performed.
[17]
In this case, the
exemption from disclosure was claimed on the basis of solicitor-client privilege.
It is now well recognized that solicitor-client privilege deserves a special
attention. The legal advice privilege has evolved into a substantive rule of
law and a principle of fundamental justice within the meaning of the Canadian
Charter of Rights and Freedom. It is fundamental to the Canadian legal
system and essential for its effective functioning: Lavallée, Rackel and
Heinze v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraph 18.
Therefore, the privilege must be jealously guarded and remain as absolute as
possible: R. v. McClure, [2001] 1 S.C.R. 445 at paragraphs 17, 24 and
31; Lavallée, Rackel and Heinze, supra at paragraph 36; and Pritchard
v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809 at paragraph 18.
[18]
I have reviewed the
revised confidential affidavits and compared the material therein with the
material released to the appellant in the public version of the said
affidavits. I am satisfied that the material accepted by the judge as
confidential and found in the four Confidential Appeal Book volumes was
properly so regarded. Disclosure of the material excluded from the public
version would undermine the solicitor-client privilege claimed under section 23
of the Act.
[19]
The public version of
the revised confidential affidavits shows how seriously the Department of
Justice and other related government departments took their responsibilities
under the Act regarding the disclosure of records and the protection of the
privilege. In a nutshell, the public version of the confidential affidavits
provide information about the application of the exemption and the internal
consultations and processing of the appellant’s request to ensure that
disclosure is effected as mandated by and in conformity with the Act.
[20]
A review of the
material kept confidential does not support the allegations of improper behaviour
that the appellant made at the hearing before us against the government and
counsel for the government. On the contrary, counsel for the government, Mr.
Rupar, is to be commended for his professionalism and integrity in compiling
and extensively reviewing this material for the benefit of the Federal Court,
our Court and the appellant. Two examples will illustrate his exemplary behaviour.
[21]
In reviewing the
voluminous documents in respect of some of which the privilege is claimed, he
found one letter included in the confidential material that he indicated to us
will be released because he learned subsequently that the response to that
letter had been disclosed in other proceedings. After reviewing the content of
the letter, he concluded in the circumstances that it was appropriate to waive
the privilege with respect to that letter.
[22]
The second example
relates to the issue of implied waiver of solicitor-client privilege. Mr. Rupar
assumed the role of the appellant in this respect in order to assist him. He
responsibly drew our attention to a practice often referred to as “pleading of
reliance” on legal advice or the “good faith” defence. According to some cases,
reliance on solicitor-client privileged advice in support of a course of action
may amount to an implied waiver of that privilege. To put it differently, a
party cannot take a course of action based on legal advice and then seek to
shelter that advice from disclosure: see Campbell and Shirose v. The Queen,
[1999] 1 S.C.R. 565 at paragraphs 47 and 70.
[23]
The case of The
Ministry of Health and the Attorney General of Canada v. Apotex, 2004 FCA 280 is one instance in which
this Court agreed that the Crown had impliedly waived its privilege concerning
communications between the Minister and counsel when it later relied upon those
communications to establish the reasonableness of the delay in making a
decision. Considerations of fairness to the parties were central to the Court’s
determination.
[24]
Counsel for the
respondent submitted that this case and those referred to in the Federal
Court’s decision are distinguishable. I agree. In the present instance, the
respondent is not submitting a defence based on legal advice in the four
section 41 proceedings. Rather, he claims the legal advice privilege itself.
The revised confidential affidavits are simply providing to the Court, with
attached exhibits consisting of letters and exchanges of communications,
information that explains how, when and why a solicitor-client privilege
exemption was claimed and still applies.
[25]
These exhibits have
been generated by the appellant’s request for disclosure. They are the
necessary records prepared by the respondent to respond to the appellant’s
request. An indiscriminate release of all these records would simply defeat the
purpose of the privilege, not only in this case, but in future cases as well.
On the other hand, failure to take the steps undertaken to ensure compliance
with the Act and, accordingly, to generate records of the kind here in issue
for fear of having to release them would weaken the privilege by making it
almost impossible to defend the claim for privilege.
[26]
I am satisfied that
the judge did not err in ensuring the confidentiality of some of the material
in the affidavits of Kerry Clark and Helen Ryan.
Whether
the judge erred in not ordering disclosure of material that the respondent
chose not to file in the record
[27]
The appellant
contends that he should have been given the material that the respondent
decided not to file in the record of the four pending section 41 proceedings.
[28]
Pursuant to the
decision of this Court and the Direction issued by the Federal Court on
December 19, 2005, the respondent filed revised confidential affidavits. These
revised affidavits, accepted by the Federal Court, contained material that the
respondent believed should remain confidential. As for other material not
included in the material filed confidentially, this Court, in its earlier
ruling, left it to the respondent to decide whether or not he wanted to file it
in the proceedings. If so, the material would have to be filed publicly. This
appears clearly from the reasons for judgment written by Rothstein J.A. as he
then was.
[29]
At paragraphs 16 and
17 of the Blank case, supra, the learned judge wrote:
Because of the public interest in open court
proceedings, filing material in court normally implies that the material will
be public. If the Minister chooses to file material pertaining to the
investigation by the Information Commissioner, he may do so. But section
35 will not entitle him to have the evidence treated as confidential.
The Minister may elect to file material pertaining to the
Information Commissioner’s investigation publicly.
(Emphasis added)
[30]
In the context of
determining the confidentiality of the revised affidavits, the judge had no
jurisdiction to order that material in the hands of the respondent, not
submitted for filing, be either filed in the section 41 proceedings or given to
the appellant.
Conclusion
[31]
As I have attempted
to demonstrate, this appeal is without merit. For the reasons given above, I would
dismiss the appeal with costs in the amount of $5,000, inclusive of
disbursements, payable forthwith to the respondent.
“Gilles
Létourneau”
“I
agree
John
M. Evans J.A.”
“I
agree
J.D.
Denis Pelletier J.A.”
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