Date:
20070412
Docket: A-292-06
Citation: 2007 FCA 147
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
THE MINISTER OF JUSTICE
Appellant
(Respondent on Cross-Appeal)
and
SHELDON BLANK
Respondent
(Appellant on Cross-Appeal)
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This is an
appeal from a decision of Mr. Justice O'Keefe whose decision is reported as Blank
v. Canada (Minister of Justice) 2006 FC 841, [2006] F.C.J. No. 1110. This
matter was heard at the same time as Blank v. Canada (Minister of Justice)
2006 FC 1551, [2006] F.C.J. No. 1927, another matter involving Mr. Blank in
which many of the same issues were raised. Mr. Blank now has so many cases
standing to his credit that a simple reference to the case name provides no
useful information. In the balance of these reasons, I shall refer to the
various cases involving Mr. Blank by reference to the case's neutral citation
series number. Thus the case decided by Mr. Justice O'Keefe will be referred to
as Blank 841 while the case which was heard at the same time will be
referred to as Blank 1551.
[2]
Both Blank
841 and Blank 1551 dealt with the interplay between sections 23 and
25 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Act). Section
23 is a discretionary exemption from disclosure for records in respect of which
a claim of solicitor-client privilege is made, while section 25 requires the
disclosure of non-exempt material which can be severed from records to which an
exemption applies. The issue, broadly speaking, is the extent to which the
Court is entitled to sever, and therefore disclose, material which appears in a
record for which legal advice privilege is claimed. The specific questions
raised were the disclosure of the subject line for documents which include a
specific subject line, and other general identifying information.
[3]
This Court's
decision on appeal from Blank 1551 is reported as Blank v. Canada (Minister of Justice) 2007 FCA 87, [2007] F.C.J.
No. 306 (Blank 87). There, Evans J.A. reviewed the principles involved
and concluded that subject matter headings which disclosed the subject upon
which legal advice was sought were not to be severed and disclosed to the applicant.
At the same time, this Court held that information forming part of the
privileged communication could not be disclosed under the rubric of general
identifying information if that information was in fact part of the privileged
communication. In doing so, this Court rejected the notion that privileged
communications may be disclosed if their disclosure appears innocuous. I would
add that Courts should not strain to surgically excise from a privileged
communication sentences which, though of a general nature, are nonetheless part
and parcel of that communication.
[4]
The task
before O'Keefe J. was to apply a legal test to a set of facts. The choice of
the test to apply is a question of law which is reviewable on a standard of
correctness. Where the judge has chosen the wrong test, this Court is to apply
the right test: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235 at para. 8, Dr. Q v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 43.
[5]
In this
case, O'Keefe J. applied the test for severance articulated by his colleague
Mosley J. in Blank 1551. In Blank 87, on appeal from Blank
1551, this Court articulated a different test which led to a different
result. As a result, O'Keefe J. applied the wrong test and our intervention is
justified.
[6]
The
applicable principles having been set out in Blank 87, it simply remains
for me to apply them to the documents in issue in Blank 841. I have therefore
reviewed the documents where severance of some portion of the document has been
ordered. In the case of subject matter headings, the judge noted that the same
subject heading had been disclosed in some cases and not in others. He adopted
a policy of consistency and ordered the disclosure of the headings which had
not been disclosed. I take it that his underlying assumption is that any
privilege which may have attached to the subject heading was waived by its
disclosure in those cases in which it was disclosed. This is an argument as to
class waiver, which, as we shall see, was rejected by the Supreme Court of
Canada in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R.
3, at para. 35 (Babcock).
[7]
The
specific subject matter on which legal advice is sought is a matter of
privilege. If a subject heading discloses the subject matter of the
legal opinion, it is not to be severed. A reference to a specific legal issue,
or to a specific statutory provision, in a subject heading, which discloses the
subject matter of the advice sought is not to be severed from the rest of the
document. As a result, I would remove from Schedule A to the judge's reasons,
the following pages: 7, 10, 13, 14, 98, 121, 124, 135, 155, 156 and 158.
[8]
For the
reasons set out above, I would also remove from Schedule A those documents
where disclosure has been ordered of portions of documents which, though of a
general nature, nonetheless form part and parcel of the privileged
communication. Under this heading, I would remove the following pages from
Schedule A: 26, 142, 144, 146 and 147.
[9]
In the
end, none of the documents which appear on Schedule A are subject to severance
and disclosure. The Minister's appeal should be allowed with costs.
[10]
Mr. Blank
has cross-appealed on a number of issues, most of which can be dealt with
summarily.
[11]
Mr. Blank
argues that the documents in question here do not come within the exemption in
favour of "advice or recommendations developed by or for a government
institution or a minister of the Crown" (paragraph 21(1)(a) of the
Act), because of the operation of paragraph 21(2)(a) of the Act which
provides as follows:
|
21.(2)
Subsection (1) does not apply in respect of a record that contains
(a)
an account of, or a statement of reasons for, a decision that is made in the
exercise of a discretionary power or an adjudicative function and that
affects the rights of a person; or
|
21.(2)
Le responsable d'une institution fédérale peut refuser la communication de
documents datés de moins de vingt ans lors de la demande et contenant :
a) des avis ou recommandations élaborés par ou
pour une institution fédérale ou un ministre;
|
[12]
A review
of the documents confirms that none of them comes within that description.
[13]
Mr. Blank
also argues that waiver of privilege with respect to a certain subject matter
is a waiver of privilege with respect to all documents which treat of that
subject matter; this is the theory of class waiver. The case relied upon by Mr.
Blank in support of this ground of appeal, Babcock, does not support his position:
35. Section 39 protects
"information" from disclosure. It may be that some information on a
particular matter has been disclosed, while other information on the matter has
not been disclosed. The language of s. 39(1) does not permit one to say that
disclosure of some information removes s. 39 protection from other,
non-disclosed information. If the related information has been disclosed in
other documents, then s. 39 does not apply and the documents containing the
information must be produced. If the related information is contained in
documents that have been properly certified under s. 39, the government is
under no obligation to disclose the related information.
[Babcock, at
para. 35.]
[Emphasis added.]
[14]
While this
comment arises in the context of a discussion of section 39 of the Canada
Evidence Act, R.S.C., 1985, c. C-5, a very specific disposition, the rule
it articulates as to waiver is nonetheless of general application.
[15]
Mr. Blank
also argues that he is entitled to attachments which were once associated with
documents for which an exemption from disclosure is claimed.
[16]
This issue
has been decided against Mr. Blank twice in the past. In Blank v. Canada (Minister of the Environment) 2001 FCA 374, [2001] F.C.J.
1844, this Court dismissed Mr. Blank's motion for production of attachments and
enclosures on the basis that there was no evidence that the record was
incomplete: see paragraphs 7 and 8. The Court dealt with the same issue again
in Blank v. Canada (Minister of Justice) 2004 FCA 287, [2004] F.C.J.
No. 1455. At paragraph 77 of that decision, Létourneau J.A., speaking for the
Court, remarked that:
77. However, I would like to re-emphasize
that Mr. Blank's right is a right of access to the records as they exist in the
hands of the head of a government institution. What he is asking this Court
and, previously the motions judge, to do, is in fact to assert a power to order
the reconstitution of these records. In the absence of evidence that would give
this Court reasonable grounds to believe that the integrity of the records has
been tampered with, this Court's power to review is limited to a review of the
records that are in evidence before it. No evidence of tampering has been
adduced and the motions judge was right to limit his review to the material
that was in evidence before him.
[17]
Mr. Blank
now raises this matter for the third time. His evidence of tampering is the
increase in the number of documents which the Minister acknowledges are
relevant to the access request. Initially, there were said to be 120 relevant
documents. Later there were said to be 156, and then 159. I am not persuaded
that this is evidence of tampering. An increase in the number of documents in
the file is inconsistent with the theory that the file has been corrupted by
the removal of material (i.e. attachments).
[18]
Mr. Blank
raises another ground of appeal based upon misconduct. He argues that solicitor-client
privilege does not shelter communications made for the purpose of committing a
crime, or suppressing evidence of a crime: see Canada v. Solosky, [1980]
1 S.C.R. 821. Mr. Blank attempted to persuade the Court that the Minister's
claim of privilege is designed to shelter communications which would disclose a
course of action amounting to malicious prosecution and perjury. He invited the
Court to read the documents in respect of which privilege is claimed and to
order their disclosure if they confirmed his allegations.
[19]
I have
done as Mr. Blank has asked and I have read the documents in issue. I found nothing
in them which would support the conclusion that they contain communications in
furtherance of a criminal act, or communications for the purpose of suppressing
the evidence of such an act. This ground of appeal also fails.
[20]
Mr. Blank's
final argument is an argument about procedural fairness. When the Minister
submitted the documents in issue to the Court as an exhibit to the affidavit of
Kerri Clark, he also included as exhibits to that affidavit a number of
documents which he sought to avoid disclosing to Mr. Blank (the Confidential
Exhibits). The basis for putting the Confidential Exhibits forward is to assist
the judge is assessing the Minister's claim of privilege with respect to the
disputed documents while the basis for the refusal to disclose the Confidential
Exhibits is that they are either privileged documents themselves, or would
disclose the contents of the disputed documents.
[21]
Mr. Blank
acknowledges that he is not entitled to see the disputed documents but claims
that the failure of O'Keefe J. to order the disclosure of the Confidential
Exhibits resulted in a breach of his right to procedural fairness. This Court
has ruled that the judge hearing the motion for leave to file the government's
confidential affidavit should dispose of any challenges to Confidential Exhibits
to that affidavit (other than that containing the disputed documents): see Blank
v. Canada (Minister of Justice) 2005 FCA 405, [2005] F.C.J. No. 2040 (Blank
405), at para. 21. It is significant that Blank 405 was an appeal
from the decision permitting the filing of the confidential affidavit.
[22]
In this
case, Mr. Blank did not appeal from the decision granting leave to file the
confidential affidavit. In fact, it appears from a review of the record that
Mr. Blank may not have raised the issue of the Confidential Exhibits at the
time of the motion to file the confidential affidavit. Counsel for the Crown
began his submissions in reply on this issue by advising the Court that:
Mr. Rupar: Well, you
will note to start – well first of all, this is a new argument that I have to
deal with that Mr. Blank is not – has decided to raise at this point, as
opposed to dealing with it properly through written representations, but …
[23]
As a
result, Mr. Blank is precluded from raising the matter of the Confidential
Exhibits at this stage. The matter should have been raised at the time of the
motion to file the confidential affidavit and, in the event of an unfavourable
decision, an appeal should have been taken. Mr. Blank having failed to raise
the matter of the Confidential Exhibits at the appropriate time, O'Keefe J. was
entitled to decline to deal with the matter at the hearing of merits of Mr.
Blank's application under section 41 of the Act. This ground of appeal also
fails.
[24]
In the
end, I would dismiss the cross-appeal with costs.
"J.D.
Denis Pelletier"
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