Canada (Attorney General) v. Canada (Information Commissioner), 2005 FCA 199

Date: 20050527

Docket: A-223-04

Citation: 2005 FCA 199

CORAM:       DESJARDINS J.A.

NOËL J.A.                                                    

MALONE J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

and MEL CAPPE

                                                                                                                                          Appellants

                                                                           and

                              THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                        Respondent

                                             Heard at Ottawa, Ontario, on May 4, 2005.

                                  Judgment delivered at Ottawa, Ontario, on May 27, 2005.

REASONS FOR JUDGMENT BY:                                                                             MALONE J.A.

CONCURRED IN BY:                                                                                         DESJARDINS J.A.

                                                                                                                                          NOËL J.A.

Date: 20050527

Docket: A-223-04

Citation: 2005 FCA 199

CORAM:       DESJARDINS J.A.

NOËL J.A.

MALONE J.A.

BETWEEN:

                                         THE ATTORNEY GENERAL OF CANADA

and MEL CAPPE

                                                                                                                                          Appellants

                                                                           and

                              THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

MALONE J.A.

I.  INTRODUCTION

[1]               This appeal concerns the scope of solicitor-client privilege claimed by a government institution in the context of subsection 36(2) of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act) and the respondent’s subpoena request seeking the production of a legal advice memorandum dated July 30, 1999 (the legal advice memorandum).  This memorandum was drafted by a lawyer in the Privy Council Office (the PCO) in response to access to information requests regarding the Prime Minister’s daily agendas.

II.  BACKGROUND FACTS

[2]               On June 28, 1999, six requests were made to the PCO, pursuant to the Act, for copies of the Prime Minister’s daily agenda books for fiscal or calendar years 1994 to June 1999.  The requester was advised that, in respect of five of the requests, there were no records under the control of the PCO which were responsive.  In respect of the sixth request, the PCO neither confirmed nor denied that such records existed in its control, but stated that, if they did, they were exempt from release as a result of the provisions of subsection 19(1) of the Act (relating to personal information).      

[3]               The PCO sought legal advice in respect of these requests and that advice was received in the form of the legal advice memorandum.  

[4]               Following the PCO’s response, the requester complained to the Information Commissioner of Canada (the Commissioner) that all of the records requested were not provided.  The Commissioner’s investigation followed, leading to the issuance of a subpoena.  Mel Cappe was the Clerk of the PCO and Secretary for the federal Cabinet at that time.  On receipt of the subpoena, Mr. Cappe released a number of records as requested, but refused production of the legal advice memorandum.

[5]               Under the direction of the subpoena, Mr. Cappe appeared at the Office of the Commissioner and was examined under oath by his delegate.  At that time, the matter of privilege was argued.  At all times material to the current appeal, Mr. Cappe objected to the release of the legal advice memorandum, claiming solicitor-client privilege on behalf of the Government of Canada.  Ultimately, the appellants sought relief before the Federal Court by way of judicial review, naming the Commissioner as a respondent in the proceedings. 

III.  SCHEME OF THE ACT

[6]               The purpose of the Act, as outlined in section 2, is to provide a right of access to information that is contained in records under the control of a government institution.  This section expressly states, as a principle, that government information should be available to the public, that exceptions to this principle should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government.  Section 4 of the Act provides a right of access to any record under the control of a government institution to every person who is a Canadian citizen or a permanent resident.

[7]               Solicitor-client privilege is expressly recognized under the Act in section 23, which reads as follows:

[8]               In carrying out an investigation under the Act, following a formal complaint by a requester, the Commissioner has broad powers, as outlined in section 36.  Specific to the current appeal, subsection 36(2) gives broad access to records under the control of a government institution.  It reads:  

IV.  THE FEDERAL COURT DECISION

[9]               A judge of the Federal Court (the Applications Judge) made an order dated March 25, 2004, dismissing the appellants’ application for judicial review (reported as Canada (Attorney General) v. Canada (Information Commissioner), [2004] 4 F.C.R. 181, 2004 FC 431).  The Applications Judge held that the Commissioner’s delegate had jurisdiction to compel production of the legal advice memorandum pursuant to subsection 36(2) of the Act.  In making that finding, she adopted a purposive and liberal interpretation of the provision, in which she determined that Parliament had used words which clearly demonstrate its intent that the Commissioner is to have access to any record required in the course of his investigation. 

[10]           She rejected the appellants’ restrictive interpretation of the subsection, in which solicitor-client privilege is only to be interfered with to the extent absolutely necessary.  She determined that such an interpretation would impose a significant restriction on the ability of the Commissioner to conduct his investigation and independent review.  In her view, the appellants’ interpretation would amount to reading in limiting words not found in the subsection and would effectively circumvent the intention of Parliament. 

[11]           The Applications Judge found support for her purposive and liberal interpretation in the decision of this Court in Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. (4th) 127 (F.C.A.) (the Ethyl decision).  In Ethyl, this Court concluded that the obstacle of privilege was eliminated by the clear wording of section 46 of the Act and that records that were relevant to the existence of the requested records could be filed with the reviewing judge.  Such records were said to be admissible if the judge was satisfied that they would be of assistance in determining the merits and legality of the government’s refusal to disclose.  The wording of section 46 of the Act, which provides the Court with the power to examine any record to which the Act applies, is analogous to that of subsection 36(2).  It reads as follows:

V.  ISSUES ON APPEAL

[12]           There is only one issue raised on this appeal; did the Applications Judge err in failing to interpret subsection 36(2) of the Act restrictively, so as to allow the Commissioner access to the legal advice memorandum to which the PCO is claiming solicitor-client privilege.

VI.  STANDARD OF REVIEW

[13]           The Applications Judge determined that the applicable standard of review is correctness.  That finding was not disputed by either of the parties and I am in full agreement with her determination that this issue is to be reviewed on a correctness standard.               

VII.  ANALYSIS

[14]           At the outset, it is important to note that the appellants do not dispute that subsection 36(2) would defeat any claim of solicitor-client privilege under section 23 of the Act relating to records sought under the Act.  The appellants accept that the Commissioner, when confronted with a refusal to disclose a record requested under the Act based on a section 23 exemption, must be able to review the record and verify that the exemption is properly claimed, and that subsection 36(2) provides the Commissioner with the authority to do so.  Rather, this dispute concerns records other than those requested under the Act, but which the Commissioner considers relevant to his investigation (the ancillary records).

[15]           The Commissioner takes the position, relying on the decision of this Court in Ethyl, that subsection 36(2) also operates to defeat the solicitor-client privilege with respect to all ancillary records, regardless of the circumstances in which they were created.  In my view, Ethyl does not stand for such a wide ranging proposition. 

[16]           In Ethyl, the Court was faced with a case where the Minister had refused disclosure of certain Cabinet discussion papers on the basis that they did not exist.  In the course of his investigation, the Commissioner obtained other records that were not covered by the request, but which did concern the use of discussion papers within the Cabinet paper system.  Some of these records were said to be protected by solicitor-client privilege.  The Commissioner considered these latter records relevant to the question of whether the requested records did exist.  It was in this context that this Court determined that it was proper for the Commissioner to file these other records with the Federal Court for its review, regardless of the fact that they might be privileged.  I stress that the ancillary records at issue in Ethyl came into existence before the access to information request and were not created for the purpose of allowing the government institution to properly respond to the information request.                             

[17]           In my view, it is clear that this Court in Ethyl was not expressing an opinion as to whether or not section 46 (and, by implication, subsection 36(2)) empowered the Court (or the Commissioner) to compel the disclosure of records created for the purpose of providing legal advice as to the proper response to an access to information request.  Rather, the Court determined that, pursuant to section 46 of the Act, records that were relevant to the investigation and in the possession of the Commissioner were required to be disclosed to the Court.  Accordingly, the question of whether subsection 36(2) empowers the Commissioner to compel the disclosure of the legal advice memorandum, which was prepared in response to an access to information request, remains outstanding.

[18]           Following the teachings of the Supreme Court of Canada, solicitor-client privilege is fundamental to the Canadian legal system and is more than a rule of evidence.  It has evolved into a fundamental and substantive rule of law which commands a unique status within the legal system, integral to the workings of the legal system itself (see R. v. McClure, [2001] 1 S.C.R. 445 at paragraphs 24, 31-32).  As such, this privilege “must be as close to absolute as possible to ensure public confidence and retain relevance” (see McClure at paragraph 35) and it is to be  “jealously guarded and should only be set aside in the most unusual circumstances” (see Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809 at paragraph 17).

[19]           The substantive rule of solicitor-client privilege, as formulated in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 and referred to by the Applications Judge, has been consistently applied by the Supreme Court of Canada (see Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraph 18).  This substantive rule was set out by Lamer J. (as he then was) in Descôteaux at 875 as follows:

1.  The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

2.  Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.  When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.                      

4.  Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[Emphasis Added]

[20]           In this appeal, subsection 36(2) is enabling legislation which gives the Commissioner the authority to ‘do something’ that could interfere with a government institution’s solicitor-client confidentiality.  This fact is acknowledged by the appellants, who do not question the Commissioner’s ability to compel the disclosure of records requested under the Act despite any claim of privilege.  However, the appellants contend that, beyond this, subsection 36(2) must be interpreted restrictively and that solicitor-client privilege should only be interfered with to the extent absolutely necessary in order to achieve the ends sought by the Act (see Descôteaux at 875).

[21]           At the time of the information request, the Commissioner did not have an interest adverse to that of the government institution in the classic sense, but the Commissioner did have the potential to become adverse in interest.  The Commissioner is required to make a recommendation as to the disclosure of the requested document, and to the extent that he opts in favour of disclosure, he has standing to challenge the refusal to produce the document in court as a party (see subsection 42(1) of the Act).    

[22]           In my analysis, the Commissioner’s use of the powers granted to him under paragraph 36(1)(a) and subsection 36(2) of the Act to obtain the confidential legal advice memorandum interferes with solicitor-client privilege in a manner that is unnecessary for the achievement of the enabling legislation.  Applying the foregoing Supreme Court of Canada jurisprudence, subsection 36(2) must be interpreted restrictively in order to allow access to privileged information only where absolutely necessary to the statutory power being exercised.  (See Lavallee at paragraph 18; Maranda v. Richer, [2003] 3 S.C.R. 193 at paragraph 16; and Pritchard at paragraph 33.)

[23]           In Pritchard, the Supreme Court of Canada indicated that the legislature can abrogate the existence of privilege by eliminating the expectation of confidentiality, but that the question of whether solicitor-client privilege could be violated by the express intention of the legislature was a controversial matter.  Major J. addressed this issue in Pritchard at paragraph 34, as follows:

Where the legislature has mandated that the record must be provided in whole to the parties in respect of a proceeding within its legislative competence and it specifies that the "whole of the record" includes opinions provided to the administrative board, then privilege will not arise as there is no expectation of confidentiality. Beyond that, whether solicitor‑client privilege can be violated by the express intention of the legislature is a controversial matter that does not arise in this appeal.

[24]           In the present appeal, the legal advice memorandum was specifically prepared in order to provide legal advice relating to the access to information requests.  As such, it is not analogous to the records at issue in Ethyl, records which were relevant to the question as to whether the requested records did in fact exist; a question that the Commissioner had to answer in the course of his investigation.  In the present context, a strong expectation of confidentiality with respect to the legal advice memorandum remains, despite subsection 36(2).  In my view, Parliament did not intend that a government institution be without the benefit of legal advice, provided in confidence, in deciding how to properly respond to an information request.  The nature of the information contained in the legal advice memorandum and the PCO’s expectation of confidentiality with respect to that information leads me to the inevitable conclusion that the legal advice memorandum is not absolutely necessary in order for the Commissioner to complete his investigation of the complaint.

[25]           It follows that the Applications Judge erred in adopting a purposive and liberal interpretation of subsection 36(2) in such a context.  Such an interpretation disregards the principle that solicitor-client privilege is much more than a privilege or a rule under the law of evidence; rather, it is a substantive right separate and apart from any evidentiary rule (see McClure at paragraph 24).  To allow the Commissioner to have unrestricted access to a document such as the legal advice memorandum would have the chilling effect warned of by Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565 at paragraph 49, and would discourage access to legal advice by government decision makers in similar circumstances.  As noted by Major J. in McClure at paragraph 2.

Solicitor‑client privilege describes the privilege that exists between a client and his or her lawyer.  This privilege is fundamental to the justice system in Canada.  The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.  At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

VIII.  CONCLUSION

[26]           The Applications Judge erred in determining that the Commissioner had the power and the jurisdiction to compel the disclosure of the legal advice memorandum.  While the Commissioner has the authority to compel the disclosure of the records requested under the Act and other relevant records (as was the case in Ethyl), he is not entitled to the production of the

memorandum created in order to provide legal advice to the PCO in response to the access to information request under the Act.  I would, therefore, allow the appeal with costs on appeal and before the Federal Court.               

                                                                                         “B. Malone”             

                                                                                                      J.A.                     

“I concur

Alice Desjardins J.A.”

“ I agree

Marc Noël J.A.”

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-223-04

STYLE OF CAUSE:                  THE ATTORNEY GENERAL OF CANADA ET AL v. THE INFORMATION COMMISSIONER OF CANADA

APPEAL FROM AN ORDER OF DAWSON, J. DATED MARCH 25, 2004,  FILE NO. T-582-01

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      May 4, 2005

REASONS FOR JUDGMENT:       Malone J.A.

CONCURRED IN BY:                     Desjardins J.A.

Noël J.A.                    

DATED:                                             May 27, 2005

APPEARANCES:

Mr. Christopher Rupar                                     FOR THE APPELLANTS

Mr. Daniel Brunet                                                         FOR THE RESPONDENT

Ms. Patricia Boyd

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                                      FOR THE APPELLANTS

Deputy Attorney General of Canada                

Office of the Information Commissioner                         FOR THE RESPONDENT

of Canada

Ottawa, Ontario