Blank v. Canada (Minister of Justice), 2004 FCA 287

Date: 20040908

Docket: A-233-03

Citation: 2004 FCA 287

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                                             SHELDON BLANK

                                                                                                                                            Appellant

                                                                                                          (Respondent in Cross-Appeal)

                                                                           and

                                                    THE MINISTER OF JUSTICE

                                                                                                                                        Respondent

                                                                                                              (Appellant in Cross-Appeal)

                                         Heard at Winnipeg, Manitoba, on May 31, 2004.

                              Judgment delivered at Ottawa, Ontario, on September 8, 2004.

REASONS FOR JUDGMENT ON THE APPEAL BY:                                      LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                  DÉCARY J.A.

                                                                                                                                 PELLETIER J.A.

REASONS FOR JUDGMENT ON THE CROSS-APPEAL BY:                              PELLETIER J.A.

CONCURRED IN BY:                                                                                                  DÉCARY J.A.

DISSENTING REASONS BY:                                                                           LÉTOURNEAU J.A.

Date: 20040908

Docket: A-233-03

Citation: 2004 FCA 287

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                                             SHELDON BLANK

                                                                                                                                            Appellant

                                                                                                          (Respondent in Cross-Appeal)

                                                                           and

                                                    THE MINISTER OF JUSTICE

                                                                                                                                        Respondent

                                                                                                              (Appellant in Cross-Appeal)

                                                    REASONS FOR JUDGMENT

LÉTOURNEAU J.A. (writing for the Court on the appeal and dissenting on the cross-appeal)

[1]                These proceedings involve an appeal and a cross-appeal against a decision of a motions judge of the Federal Court rendered on an application for review pursuant to section 41 of the Access to Information Act, R.S.C. c. A-1 (Act).

[2]                The appeal questions the motions judge's decision regarding the scope of the disclosure of information allegedly obtained in confidence (section 13 of the Act), personal information (section 19), records containing advice (section 21), information subject to solicitor-client privilege (section 23), and the severability of information contained in a record protected from disclosure (section 25). It also puts in issue the extent, under section 46, of the powers of the reviewing Court seized with an application under section 41 of the Act. More precisely, the appellant submits that the motions judge erred when he ruled that he did not have jurisdiction to order, pursuant to section 46 of the Act, the production of documents that were not in evidence before him on the review proceedings.

[3]                The cross-appeal by the Minister of Justice addresses a thorny issue regarding the solicitor-client privilege found in section 23 of the Act. The question is of significant importance for the administration of justice and the public interest: was the judge wrong when he decided that the litigation privilege, if it could be claimed to exclude a record from release, expires when the litigation ends and, therefore, the records containing information subject to privilege must be released? The issue has been somewhat made more difficult by the fact that the respondent, who is self-represented, is not a lawyer and is not familiar with the intricacies of this complex area of the law. Adventuring in this field, as we shall see, is a perilous exercise in itself. To do so without the benefit of enlightened advice from both parties is tantamount to walking through an uncharted minefield with the hope that the one-sided guidance received will bring you to safety.

[4]                I will begin with the issue of privilege which is common to both the appeal and the cross-appeal. Before I do, a short summary of the relevant facts is in order.

The facts and the procedure

[5]                On October 17, 1997, the appellant made a first request to the Access to Information and Privacy Office (Office) of the Department of Justice to obtain all records pertaining to his prosecution and the prosecution of Gateway Industries Ltd. (Gateway) for regulatory offences under the Fisheries Act, R.S.C. 1985, c. F-14 and the Pulp and Paper Effluent Regulations, SOR/92-269.

[6]                The appellant was a Director of Gateway which operated a paper mill in the city of Winnipeg. Thirteen (13) charges were laid against him and Gateway in July 1995: five counts alleged pollution of the Red River and eight pertained to breaches of the reporting requirements of the Fisheries Act. A judicial saga regarding the prosecution of these charges ensued thereafter. Suffice it to say that the eight charges relating to the reporting requirements were quashed in April 1997 by the Manitoba Provincial Court. The prosecution continued on the five summary conviction offences of pollution only to see the charges quashed by the Manitoba Queen's Bench on April 10, 2001. The Crown laid, in July 2002, new charges by way of indictment. The trial had been set for April 19, 2004 to June 25, 2004, but in February 2004 the Crown stayed the proceedings and informed the appellant that the prosecution would not be reinstated.

[7]                The appellant and Gateway sued the Federal Government in damages for alleged fraud, conspiracy, perjury and abuse of its prosecutorial powers. It is both in the context of the penal prosecution and the civil lawsuit that the appellant sought to access Government records pursuant to the Act.

[8]                Following the first request in October 1997, some 2297 pages of material were released to the appellant. Over a thousand pages (1226) were withheld in whole. Thirty six (36) additional pages were also withheld, but in part only.

[9]                In May 1999, the appellant filed a second request for information with the Office. He sought all the records that had been exempted pursuant to the first request. The exemptions were maintained but for 353 pages that were released. As a result, the appellant lodged a complaint with the Information Commissioner (Commissioner) about the exemptions claimed by the Office. There ensued a series of meetings, consultations and discussions between the Office, the Director of Investigation for the Commissioner and other governmental agencies such as the Royal Canadian Mounted Police. An additional 81 and 131 pages were then released in two sequences. While agreeing that the vast majority of the over 1500 pages was properly exempted under the solicitor-client privilege, the Director of Investigation expressed concerns in respect of over approximately 277 pages for which the solicitor-client privilege was invoked. Further discussions ensued and, in the end, 190 of these pages were released and the remaining 87 pages were exempted from disclosure pursuant to sections 13(1), 19(1), 20(1), 21(1) and 23 of the Act. On December 28, 2000, an additional 167 pages were disclosed in whole or in part.

[10]            I have described in some detail, though not completely, the sequence of the documents releases as well as the number of said documents released to show the broadness of the initial claim to exemptions under the Act made by the Office. It also highlights the value and importance of the crucial role played by the Commissioner in enforcing the objectives and spirit of the Act.

[11]            The motions judge ordered an additional but limited release of documents either by reason of disclosure obligations in the criminal and civil proceedings or because they were already in possession of the appellant. Such material was released save for the pages affected by the cross-appeal.

The scope of the solicitor-client privilege contained in section 23 of the Act and its relationship with disclosure

[12]            I need to reproduce section 23 of the Act for a better understanding of the analysis which follows:

[13]            This Court in Stevens v. Canada, [1998] 4 F.C. 89 rejected a submission by the appellant that the solicitor-client privilege in section 23 of the Act should be applied narrowly since the Act was designed to promote disclosure. In addition, at paragraph 23, Linden J.A. found that section 23 incorporates the common law of solicitor-client privilege, that the privileged nature of the material is to be determined according to the common law and, if the material is found to be subject to privilege, the discretion to disclose must be exercised according to the principles governing the Act:

                                                                                                                                 (Emphasis added)

[14]            Subsequently, in a case involving the appellant, Blank v. Gateway Industries Ltd., A-608-00, December 3, 2001 (F.C.A.), Sharlow J.A. rejected a contention by the appellant that the material that should have been disclosed in his criminal trial pursuant to the Stinchcombe principles (R. v. Stinchcombe, [1991] 3 S.C.R. 326) should now be disclosed under the Act. She reasserted for the Court, at paragraph 12, that in considering whether appropriate disclosure had been made under the 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 Act".

[15]            In other words, both decisions (Stevens and Blank) stand for the sound principle that, while determination of the privilege nature of a record is governed and determined by the common law, disclosure of that record that has been found to be privileged is governed by and made pursuant to the Act.

[16]            This brings me to a review of the scope of the privilege at common law in order to ascertain the extent and meaning of the privilege in the Act.

The scope and contents of the solicitor-client privilege at common law

[17]            The parties do not dispute that, at common law, the solicitor-client privilege covers confidential communications between solicitor and client which entails the seeking or giving of legal advice, whether contentious or not, as well as, pursuant to what the American courts call the "work product doctrine", a "lawyer's work product", i.e. the material assembled by a lawyer exercising legal knowledge, skill and industry for the purpose of advising on or conducting anticipated or pending litigation: see Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129, at page 142 (B.C.C.A.). Words to the same effect can be found in Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex.C.R. 27 at page 33, where President Jackett of the Exchequer Court of Canada enunciated the following principles followed in numerous subsequent decisions:

[18]            While the first branch has been termed by this Court "the legal advice" privilege (see the decision of MacGuigan and Décary JJ.A in Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762, at page 769), the second aspect or branch of the privilege is often commonly referred to as the litigation privilege. It is with respect to the nature, status and duration of this second branch of the privilege that the parties take different and, at times, opposing views as we shall see in details later. Suffice it to say that the appellant contends that the litigation privilege which, he says, is contained in the solicitor-client privilege referred to in section 23 of the Act is, in fact, a distinct and separate privilege of limited duration, whose scope and contents are governed by rules that are fundamentally different from the "legal advice privilege". The respondent, while acknowledging limits to it, takes the view, relying upon Hodgkinson v. Simms, supra, that the litigation privilege is merely part of one all-encompassing solicitor-client privilege of unlimited duration unless waived, and, therefore, the material subject to it is indefinitely exempt from disclosure.

[19]            It is also settled law that the solicitor-client privilege evolved from an evidentiary rule to a substantive rule which can be asserted at an early stage of a process. Indeed, the privilege, although still referred to in this fashion, refers to a person's right, as opposed to a privilege, to have communications with his lawyer kept confidential.

[20]            In [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821, at page 839, Dickson J., as he then was, wrote, under the heading The Right to Confidentiality:

One may depart from the current concept of privilege and approach the case on the broader basis that ... the right to communicate in confidence with one's legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client.

This principle was reasserted and expanded by Lamer J., as he then was, in [1982] 1 S.C.R. 860">Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860. Referring to the right as established in [1980] 1 S.C.R. 821">Solosky, Lamer J. wrote at pages 871 and 893:

It is a personal and extra-patrimonial right which follows a citizen throughout his dealings with others. Like other extra-patrimonial rights, it gives rise to preventive or curative remedies provided for by law, depending on the nature of the aggression threatening it or of which it was the object.

[...]

The fundamental right to communicate with one's legal adviser in confidence has given rise to a rule of evidence and a substantive rule.

                                                                                                                                 (emphasis added)

He went on to say, at page 893, that the right would have an effect when a search warrant is issued and executed:

Thus the justice of the peace has no jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged.

In other words, the substantive rule comes into play to prevent disclosure long before the evidentiary rule can be asserted. Lamer J. quoted, with approval, Southey J. in Re Borden & Elliott and The Queen (1975), 30 C.C.C. (2d) 337 (Ont. S.C.), at page 343, where he wrote:

If the privilege could not be invoked to prevent the seizure and examination of documents under a search warrant, the Crown would be free in any case to seize and examine the files and brief of defence counsel in a criminal prosecution. It would be small comfort indeed to the accused and his counsel to discover that his only protection in such a case was to prevent the introduction into evidence of the documents that had been seized and examined. Such a result, in my view, would be absurd.

                                                                                                                                 (emphasis added)

In the latest pronouncement on the scope of the privilege in Pritchard v. Ontario (Human Rights Commission), 2004 S.C.C. 31, at paragraph 18, Major J. for a unanimous Court reiterated what had been stated in Lavallée, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209 and R. v. McClure, [2001] 1 S.C.R. 445:

Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances and does not involve a balancing of interests on a case-by-case basis.

                                                                                                                             (emphasis in original)

This approach is consistent with the fact that solicitor-client privilege is, in effect, a warranted exemption from disclosure and, save exceptions, there is no need to engage in a balancing exercise of the public interest in disclosure and the public interest in the proper administration of justice once it has been determined that the material in issue is privileged. This latest development regarding the scope of the solicitor client privilege, however, occurred in relation to the first branch of the privilege. The Supreme Court has yet to rule on the nature, status and duration of the litigation privilege. As we shall see later, different considerations apply to this privilege.

[21]            In conclusion, the solicitor-client privilege evolved from a privilege to a right and from an evidentiary rule to a substantive rule. The protection first attached to communications made in confidence between a lawyer and a client for the purpose of obtaining a legal advice. It has now been extended to facts that arise out of or are connected to the solicitor-client relationship since the contents of the privilege and the protection it affords cannot be based on the distinction between facts and communications: see Maranda v. Richer, [2003] 3 S.C.R. 193, at paragraphs 27 to 32. It was also extended to include communications exchanged during other litigation and consultations for legal advice, whether litigious or not: see [1980] 1 S.C.R. 821">Solosky v. The Queen, supra, at page 834.

[22]            Finally, the privilege, under the heading "litigation privilege", came to protect materials brought into existence for the dominant purpose of pending or anticipated litigation. However, with the developing rules and principles of disclosure in search of the truth in the public interest, this aspect of the privilege, in the litigation field, came to be widely, although not unanimously, regarded by members of the legal profession as a relative privilege, distinct from the more absolute privilege consisting in the protection of confidential communications between client and lawyer for the purpose of obtaining legal advice. In a well documented article entitled "Solicitor-Client Privilege and Litigation Privilege in Civil Litigation" and published in The Canadian Bar Review, 1998, vol. LXXVII, at pages 332 and 333, the authors, G.D. Watson and F. Au, also discuss the recognition of the litigation privilege in Britain and Australia. They mention in footnote 68, at page 330, that a search in Canada on the CJ database of Quick Law in June 1998 generated 187 cases where the words "litigation privilege" appeared. A search as of August 23, 2004 brings this number to 569.

[23]            I now turn to the nature, status and duration of the litigation privilege at common law.

The nature, status and duration of the litigation privilege at common law

[24]            Initially, as previously alluded to, the litigation privilege was subsumed in or conflated into the solicitor-client privilege and, it seems, entailed the same effect as the legal advice privilege: the material was permanently exempt from disclosure unless waived by the client. This was the state of the law within the federal sphere as it appears from the Susan Hosiery Ltd. v. Minister of National Revenue, supra. That position was best expressed by McEachern C.J.B.C., writing for the majority in Hodgkinson v. Simms, supra, where at page 136 he wrote:

Thus it appears to me that, while this privilege is usually subdivided for the purpose of explanation into two species, namely, (a) confidential communications with a client, and (b) the contents of the solicitor's brief, it is really one all-embracing privilege that permits the client to speak in confidence to the solicitor, for the solicitor to undertake such inquiries and collect such material as he may require properly to advise the client, and for the solicitor to furnish legal services, all free from any prying or dipping into this most confidential relationship by opposing interests or anyone.

                                                                                                                                 (Emphasis added)

[25]            Earlier, at pages 133-134, he discarded as unhelpful any attempt to draw, as the American courts did, a distinction between solicitor-client privilege and the "lawyer's work product". Nor did he see the need to recognize a separate category of immunity against production. Indeed, in an article entitled "Privilege in Experts' Working Papers" published at (1997) LXXVI Canadian Bar Review 346, J.D. Wilson concludes at page 373 that the "United States' approach to litigation privilege has resulted in a quagmire of litigation and an undesirable atmosphere of incomplete disclosure by clients to counsel in litigation that ought not to be contemplated in Canada".

[26]            This is not to say, however, that, in terms of substance and contents, there were not some recognized differences between the two branches of the same privilege. The exemption from disclosure of the lawyer's brief or work product, as previously mentioned, was governed by the dominant purpose rule of pending or anticipated litigation. Contrary to the legal advice privilege where the protection offered to communications by a third party with a lawyer is limited, it applied to communications of a non-confidential nature between the solicitor and a third party, photocopies of unprivileged original documents as well as to documents which are not a conventional communication such as cheques, invoices, payments, etc.: see Hodgkinson v. Simms, supra, R.J. Sharpe, Claiming Privilege in the Discovery Process published in Law in Transition: Evidence, L.S.U.C. Special Lectures, Toronto: DeBoo, 1984, page 163, at 164-65.

[27]            Over time, no doubt under American influence, the rationale of the litigation privilege changed and that privilege asserted itself as a distinct and separate, but truncated, privilege. Speaking of the extension of that privilege, Sopinka, Lederman and Bryant, in The Law of Evidence in Canada, Toronto, Butterworths, 1992, at page 653, wrote:

although this extension was spawned out of the traditional solicitor-client privilege, the policy justification for it differed markedly from its progenitor. It had nothing to do with client's freedom to consult privately and openly with their solicitor; rather it was founded upon our adversary system of litigation by which counsel control fact-presentation before the Court and decide for themselves which evidence and by what manner of proof they will adduce facts to establish their claim or defence, without any obligation to make prior disclosure of the material acquired in preparation of the case. Accordingly, it is somewhat of a misnomer to characterize this aspect of privilege under the rubric, (solicitor-client privilege), which has peculiar reference to the professional relationship between the two individuals.

                                                                                                                                 (Emphasis added)

[28]            In General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4^th) 241, at page 255, the Ontario Court of Appeal defined the litigation privilege as a practical means of assuring counsel a zone of privacy. In view of the modern trend towards complete discovery in litigation, the Court saw it as the area of privacy left after the current demands of discovery have been met. The privilege, Carthy J.A. said, is not sacrosanct and is not rooted, as is solicitor-client privilege, in the necessity of confidentiality in a relationship. Disagreeing with the majority reasons in Hodgkinson, supra, he took a more restrictive view of the privilege in favour of discovery. At page 260, he wrote: "the zone of privacy is thus restricted in aid of the pursuit of early exchange of relevant facts and the fair resolution of disputes". At pages 261 and 264, he concluded that "while solicitor-client privilege stands against the world, litigation privilege is a protection only against the adversary, and only until termination of the litigation". Therefore, in a litigation context, he saw no purpose in withholding information covered by the litigation privilege when the litigation had come to an end and the information was relevant in other proceedings.

[29]            Doherty J.A. showed a willingness to go even further. He saw the litigation privilege "as a qualified one which can be overridden where the harm to other societal interests in recognizing the privilege clearly outweighs any benefit to the interest fostered by applying the privilege in the particular circumstances": ibidem, at page 288. Rosenberg J.A. refused to endorse this kind of cost-benefit analysis in assessing the competing interests of privacy and disclosure because the balancing required by this approach would lead to unnecessary uncertainty and a proliferation of pre-trial motions in civil litigation: ibidem, at page 295.

[30]            The need to distinguish between the two types of privilege and their rationales have also been recognized by the other courts in Canada and this Court in Samson Indian Nation and Band v. Canada, previously cited: see, for example, Dupont Canada Inc. v. Emballage St-Jean Ltée, [1999] F.C.J. No. 1429 per Hugessen J., affirmed (2000) 266 N.R. 366 (F.C.A.); Belgravia Investments Ltd. v. Canada (2002), 220 F.T.R. 246; Richter Gedeon Vegyészeti Gyar RT v. Merck & Co. (1996), 113 F.T.R. 1; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 362; Jesionowski v. Gorecki (1992), 55 F.T.R. 1; Gower v. Tolko Manitoba Inc., 2001 mbca 11; Chmara v. Nguyen (1993), 85 Man. R. (2d) 227 (Man. C.A.); Opron Const. Co. v. Alta. (1989), 71 Alta. L.R. (2d) 28 (Alta. C.A.); Global Petroleum v. CBI Industries Inc. et al. (1998), 172 N.S.R. (2d) 326 (N.S. C.A.).

[31]            I am satisfied that the solicitor-client privilege in section 23 of the Act includes the litigation privilege. It is not necessary for the purpose of this appeal to rule on the issue of the duration of the litigation privilege at the Federal level generally or under the Federal common law. The issue raised in the cross-appeal relates to the duration of the litigation privilege contained in section 23 of the Act. I now turn to this question.

The duration of the litigation privilege under the Act

[32]            In a recent decision, Ontario (Attorney General) v. Canoe, C 37981, November 29, 2002, at page 3, leave to appeal to the Supreme Court of Canada dismissed on May 15, 2003, the Ontario Court of Appeal first reasserted its views that, at common law, the protection offered by the litigation privilege ends when the litigation is completed. This case is interesting for two reasons. It deals with a factual situation analogous, if not identical, to ours and it relates to a head of government's refusal to disclose a record subject to a litigation privilege. Like Mr. Blank, the requester was seeking access, but under the Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, to working papers and documents in a Crown's prosecutor file regarding an incident that had given rise to a prosecution, but that was thereafter the subject of private litigation.

[33]            However, the Court then came to the conclusion that there was no temporal limit to the litigation privilege found in section 19 of the Ontario legislation. Section 19 reads:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

In other words, the statute did not incorporate the limit found at common law.

[34]            Counsel for the respondent in the case at bar submits that the litigation privilege in section 23 of the Act is not subject to a temporal limit because the common law, at the time of coming into force in July 1983 of the Act enacted in 1982, included both the litigation and the legal advice privilege under solicitor-client privilege and the exemption from disclosure was indefinite.

[35]            I agree with counsel for the respondent that legal advice and litigation privilege were, at common law, one all-encompassing privilege offering the same protection in terms of duration when the Act came into force. That being said, I share the views, however, of both Carthy and Doherty JJ.A. in Chrusz, supra, at pages 256 and 289, that judicial decisions should be driven more by the modern realities of the conduct of litigation and discovery than by historic precedents born in a very different context, and that the law of privilege should be permitted to meet the evolving interests and priorities of the community. It may be that, in the context of civil litigation where disclosure is done in a better search for the truth, the litigation privilege has evolved to a stage where the privilege is quite relative and has a determined life span, although I am far from being convinced that death of the litigation privilege is automatic on the day the litigation comes to an end. As it will become evident when I discuss the status of the litigation privilege under section 23 of the Act, there are valid policy and public interest reasons which, even in civil litigation, could justify protection beyond the conclusion of the litigation. That question is not before us. What is before us is, in a general context not necessarily involving litigation, the disclosure of information that was prepared for or in contemplation of litigation. It is the benefit of the litigation privilege as understood in, and governed by, the Act. The Act pursues objectives that are different from litigation and, in my respectful view, the litigation privilege must be interpreted in a manner consonant with these objectives as well as with the obligations imposed upon and the rights given to governments and governments' officials.

[36]            Whether it is for a matter of national security, efficiency, transparency, institutional memory or accountability, the government is required to keep records in the public interest. The Act grants a citizen a right of access to these records, subject to a number of exemptions.

[37]            When it comes to disclosure of a record subject to solicitor-client privilege, section 23 of the Act statutorily provides the government with the benefit of that privilege. The section does not create the privilege, but, by statute, gives to heads of government institutions the protection against disclosure afforded by the privilege by giving them, in an Act which promotes and favours disclosure of information, the discretionary power to refuse disclosure of such record. The use of the word "may" instead of "shall" makes the provision a permissive rather than a mandatory exemption. It means, a contrario, that the head of a government institution can disclose a record which contains information subject to solicitor-client privilege. I confess that the wording of section 23 now appears to me somewhat strange in view of the actual status of solicitor-client privilege, especially the "legal advice" privilege, which has become a substantive right to non-disclosure "as close to absolute as possible": see Pritchard v. Ontario (Human Rights Commission), supra. However, at the time of enacting the provision in 1982, solicitor-client privilege was still more a rule of evidence relating to admissibility than a substantive right against disclosure. The concept of substantive right was still in its period of infancy and the privilege was far from enjoying the absolutism that it does nowadays. In any event, we are concerned here with a challenge to a refusal to disclose pursuant to section 23, not a challenge to a willingness to disclose.

[38]            The motions judge failed to recognize that section 23 grants a statutory protection which, as drafted in the Act, not only contains no temporal limit, but rules out any notion of an automatic time limit as applied by the judge. As previously mentioned, section 23 statutorily confers upon the head of a government institution what is, and has been termed, a discretionary or permissive exemption: see Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 C.T.C. 45 per Evans J. (F.C.T.D.); Canadian Jewish Congress v. Canada (Minister of Employment & Immigration), [1996] 1 F.C. 268 per Heald J. (F.C.T.D.); M. Drapeau and M.A. Racicot, Federal Access to Information and Privacy Legislation annotated 2004, Thomson and Carswell, Toronto, 2003, pages 637 and 642. "The head of a government institution may refuse to disclose", the provision says. This discretionary exemption is simply incompatible with a conclusion that the litigation privilege automatically ceases to exist with the end of the litigation and, therefore, that the material has to be released. To conclude, as the motions judge did, that the material must be released under section 23 because the litigation has ended is to nullify the protection accorded by the discretionary exemption.

[39]            For all practical purposes, it either negates the very discretion granted by the provision or it severely restricts it through a rewriting of the provision whereby the discretion lasts only the time of the litigation. I can neither read such words in the existing provision nor find a legislative intent to that effect.

[40]            With respect, the motions judge failed to properly construct and interpret the Act and section 23 in particular. He ignored the teachings of this Court in Stevens v. Canada and Blank v. Gateway Industries Ltd., previously cited, to the effect that the discretionary decision to disclose is not done according to the common law, but rather "is done in the context of the Act along with its philosophical presuppositions": see also Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), supra.

[41]            There are also policy and public interest considerations which indicate to me that Parliament intended the exemption from disclosure contained in section 23 to be an effective one and one which is governed by the exercise of a legally reviewable discretion rather than sheer automatism. These policy considerations actually guide the exercise of discretion by heads of government institutions.

[42]            First, the federal government, although not alone in such a position since large-scale companies and employers may also face the same problem, is not an ordinary litigant. It is composed of numerous boards and agencies which may be the subject of recurrent lawsuits. It's field of action and intervention is widespread, both nationally and internationally, thereby multiplying the avenues for litigation. This means that a cause of action against one agency can be later reasserted by numerous other litigants against the same agency or other agencies or boards of the government. The government is entitled to develop, in the public interest which, contrary to private companies, it must defend, a legal policy and strategy towards the conduct of these litigations. Automatic and uncontrolled access to the government lawyer's brief, once the first litigation is over, may impede the possibility of effectively adopting and implementing such policy or strategy. It would give opponents or adversaries access to the government agency's mind and legal strategy, the very thing that the litigation privilege is directed at preventing. It would defeat, in subsequent litigation involving the same or substantially the same cause of action, the objective pursued by the litigation privilege.

[43]            Indeed, the US Supreme Court in Federal Trade Commission et al. v. Grolier Inc. (1983), 462 U.S. 19 raised this spectre when it concluded, under the American Freedom of Information Act, 5 U.S.C.S. 552, that whether the litigation privilege is absolute or qualified, a protected document cannot be said to be subject to routine disclosure.

[44]            In a concurring opinion, supported by Blackmun J., at paragraph 30, Brennan J. wrote:

The Court of Appeals is doubtless correct in its view that the need to protect attorney work product is at its greatest when the litigation with regard to which the work product was prepared is still in progress; but it does not follow that the need for protection disappears once that litigation (and any "related" litigation) is over. The invasion of "[an] attorney's thoughts, heretofore inviolate," and the resulting demoralizing effect on the profession, are as great when the invasion takes place later rather than sooner. More concretely, disclosure of work product connected to prior litigation can cause real harm to the interests of the attorney and his client even after the controversy in the prior litigation is resolved. Many Government agencies, for example, deal with hundreds or thousands of essentially similar cases in which they must decide whether and how to conduct enforcement litigation. Few of these cases will be "related" to each other in the sense of involving the same private parties or arising out of the same set of historical facts; yet large classes of them may present recurring, parallel factual settings and identical legal and policy considerations. It would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency in connection with earlier, similar litigation against other persons. He would get the benefit of the agency's legal and factual research and reasoning, enabling him to litigate "on wits borrowed from the adversary." Worse yet, he could gain insight into the agency's general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled. Nor is the problem limited to Government agencies. Any litigants who face litigation of a commonly recurring type - liability insurers, manufacturers of consumer products or machinery, large-scale employers, securities brokers, regulated industries, civil rights or civil liberties organizations, and so on - have an acute interest in keeping private the manner in which they conduct and settle their recurring legal disputes. Counsel for such a client would naturally feel some inhibition in creating and retaining written work product that could later be used by an "unrelated" opponent against him and his client. Counsel for less litigious clients as well might have cause for concern in particular cases; fear of even one future "unrelated" but similar suit might instill an undesirable caution, and neither client nor counsel can always be entirely sure what might lie over the horizon. This is precisely the danger of "[inefficiency,] unfairness[,] . . . sharp practices" and demoralization that Hickman warned against.

                                                                                                                                 (Emphasis added)

[45]            Furthermore, in a case like ours where, for the purpose of a related civil action, access is sought to the Crown brief and file in a criminal prosecution, public interest dictates a measured, prudent and responsible approach to the release of any information from that file or brief. A Crown brief or file may contain a wide variety of documents or information. In D.P. v. Wagg (2002), 61 O.R. (3d) 746, the plaintiff D.P. sued in damages Wagg who had been charged with an alleged sexual assault. The charges were later stayed. In the course of her civil action, she sought production of the Crown Disclosure Brief to the accused. The Ontario Divisional Court rejected both an absolute standard prohibiting disclosure and production, and a blanket rule requiring production of a Crown Brief on the simple ground of relevance because such rule fails to take into account other public interest considerations. On the issue of the content of a Crown Brief, Blair J. wrote at paragraph 23:

The Crown Brief may be comprised of a myriad of documents as varied as the fact situations underlying criminal prosecutions. Just to list some examples, the Brief may contain such documents and information as "will say" summaries of potential witnesses' testimony, actual statements of witnesses and others, statements of the accused and the complainant, sensitive information about police informants and witnesses, incident reports, statements of police officers, police officers' notes, photographs, videos, expert reports, wiretap evidence, surveillance reports, DNA orders and records and many other kinds of information. Given the infinitely varied contents of Crown Briefs, the nature of those contents, the requirement to protect the identities of certain witnesses and police informants, the need to guard the privacy and protection concerns of third party sources of information (such as child care agencies, support organizations, medical doctors, psychiatrists, psychologists, etc.), the production and possibly broadened dissemination of Crown Brief materials raises an infinite variety of potential and in may ways unforeseeable problems and considerations that need to be weighed.

[46]            Statements found in the Crown file may have been given to the police by witnesses under an understanding of confidentiality. Or a statement may have been obtained in violation of Charter rights and may be inadmissible in the criminal trial: see Wagg, previously cited, at paragraphs 67 and ff. where the statement was obtained in violation of the accused's right to counsel.

[47]            Public safety, the privacy interests of victims or witnesses, protection of sources and police informants, protection of Charter rights and freedoms, protection of the integrity of the administration of the criminal justice system are all values to be assessed in determining whether documents in the Crown file could be released for collateral use in other proceedings: see the Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions, Toronto, Queen's Printer for Ontario, 1993 at pages 180-181 where the Committee refers to examples where disclosure of the Crown brief in a case of alleged sexual assault resulted in the statement of a child complainant being circulated at the complainant's school, and disclosure of statements of potential Crown witnesses in penitentiary investigations ended up posted on bulletin boards to be perused by the general inmate population.

[48]            In A.G. of Ontario v. Big Canoe, previously cited, which, it bears repeating, involved an access to information request, the Ontario Court of Appeal recognized that there are situations where the interests of public knowledge and access to information are overbalanced by other concerns. In that case, it expressed its fear that opening prosecution files could potentially enable criminals to educate themselves on police and prosecution tactics as well as have a chilling effect on the witnesses' willingness to cooperate or on the police's frankness with prosecutors: see paragraph 14 of the decision.

[49]            In Wagg, previously cited, the Divisional Court, at paragraph 36, advocated the "need for a screening mechanism to ensure that the public interest in maintaining the integrity of the criminal investigatory and prosecutorial system is protected before production of the contents of the Crown Brief is effected". The discretion conferred, in section 23 of the Act, upon the head of a government institution can be easily understood when one bears in mind all these policy considerations and competing values that the government has to take into account, in the public interest, when assessing whether the information in a Crown brief can be released. The exercise of that discretion operates under the Act as a necessary screening mechanism subject to judicial review.

[50]            In conclusion, I am of the view that the protection given by the litigation privilege, in section 23 of the Act, is neither necessarily perpetual nor necessarily non-existent once the litigation in respect of which the privilege has been invoked has come to an end. There will be some instances where the protection will be perpetual and there will be others where the release of the information sought will be necessary to achieve justice in a subsequent proceeding. There is no routine disclosure under section 23 of the Act. Disclosure is discretionary. The release or withholding of the record or information will depend on the facts and circumstances of each case. The head of a government institution must exercise his or her discretion properly and according to law. The exercise of that discretion, as is often the case, will involve a balancing of the competing interests in issue and a screening of the information or record accordingly. The role of this Court in reviewing the exercise of discretion by heads of government institutions is not to second guess them and to substitute its views for theirs. It is "merely to review on administrative law grounds the legality of the exercise of that discretion by the minister, in light of the overall purpose of the statute and the particular exemption": see Canadian Council of Christian Charities v. Canada (Minister of Finance), supra, at page 257.

[51]            Since writing my reasons, I have had the benefit of reading those of my colleague Pelletier J.A. I would like to make a short comment on two issues that they contain: his distinguishing the decision of the Ontario Court of Appeal in the Big Canoe case and his argument based on the difference in the wording of section 23 of the Act and section 19 of the Ontario access to information legislation.

[52]            In coming to his conclusion on the application of section 23 of the Act, my colleague draws comfort from the different wording of section 19 of the Ontario access legislation and on that basis, erroneously in my view, distinguishes the position taken by the Ontario Court of Appeal in Big Canoe, supra, where, it should be recalled, that Court found that there was no temporal limit in section 19 of the Ontario legislation. Perhaps the easiest and clearest answer to my colleague's conclusion based on the different wording of the two provisions can be found in this simple reality.

[53]            Section 23 of the Act intends to protect from disclosure some records. It has to identify what these records are. There are at least two ways of doing it. One, and this is the approach taken by section 23 in 1982, is to refer generally to information subject to solicitor-client privilege without giving any specifics as to the content of the generic words (solicitor-client) used. The other, which is the approach taken by section 19 of the Ontario access to information legislation, proceeds to describe the very content of the privilege. These two approaches are merely two different ways of describing the same reality, to wit, the two legislations protect information subject to litigation privilege. What is information subject to litigation privilege? It is information that was prepared for or in contemplation of a litigation. Thus, in applying section 23 of the Act, the question to be asked is: was the information prepared for or in contemplation of a litigation? If the answer is yes, that information is subject to the litigation privilege subsumed in the words "solicitor-client privilege" and the head of a government institution may refuse to disclose it.

[54]            My colleague seems to believe that the records protected by section 19 of the Ontario legislation, which in fact correspond to records subject to litigation privilege, are not privileged records, but records that were prepared in circumstances which would give rise to a claim of privilege. That is why, in his view, there is no temporal limitation in section 19 of the Ontario legislation.

[55]            With due respect, I think this is a distinction without a foundation because, in order to determine whether a record falls into the category of privileged records, one must look at the nature of the information contained in these records and the circumstances under which it was obtained or prepared: was it a communication?, was it a communication in confidence to lawyer?, was the material related to an existing litigation?, was it prepared in contemplation of that litigation?, etc.

[56]            Finally, and I do not want to repeat myself, but the position taken by my colleague leads to disturbing results not only that Parliament did not wish, but that Parliament precisely wanted to avoid by enacting section 23 of the Act. The Ontario Court of Appeal has already expressed its concerns in the Big Canoe case about criminals accessing the Crown's file and refused such access. The same concern certainly exists with Federal prosecutions relating to serious crimes such as the international trafficking in drugs and conspiracy to import such drugs. If release is automatic upon termination of the prosecution, anybody can access the Crown's file and the information therein that is subject to litigation privilege, that is to say information that was prepared for or in contemplation of that prosecution.

[57]            Furthermore, the access to information route will become the way to circumvent in civil litigation any restriction on disclosure imposed by civil rules of procedure which are not uniform across Canada. A would-be litigant simply needs to delay his lawsuit until he has obtained, through access to information, the lawyer's brief and the litigation strategy developed by the Federal government or authorities in the public or national interest.

[58]            In the end, section 23 of the Act is severely undermined and amputated by the approach taken by my colleague with respect to information subject to litigation privilege, all of this without due regard to the true spirit, intent and meaning of the provision and of the Act. It also entails a misapprehension of the findings of this Court in Stevens and Blank, supra. At the time of enacting section 23, the legislative intent was to exempt from disclosure records containing information subject to solicitor-client privilege. As I have already mentioned, litigation privilege was subsumed into solicitor-client privilege. I am leaving aside the issue of the legal advice privilege, except to say that the legislative intent was to protect from disclosure information which acquired the status of privilege. The legislative intent under the Act was to leave the initial determination of the privilege nature of the information to the common law, but, once the determination is made that the information is privileged, to leave the issue of its release to the terms of the Act as contained in section 23. The release under the Act was not to be governed by the common law as my colleague, in fact, does here.

Whether the cross-appeal should be allowed and the refusal to disclose the Crown brief and file maintained

[59]            For the reasons that I have given, I would allow the cross-appeal and rule that the motions judge erred when he concluded that the protection afforded by the litigation privilege in section 23 of the Act automatically ceased to exist when the litigation to which the record relates expired. I would also rule that he erred when he ordered that, as a consequence of the litigation coming to an end, the records be released. Therefore, I would set aside the part of his decision which so orders.

[60]            This conclusion leaves open three related issues that I now have to address:

a)         whether the Office properly exercised its discretion to refuse disclosure;

b)         whether the motions judge erred in not setting aside the privilege on account of criminal behaviour by the Crown; and

c)         whether the records subject to the privilege can be severed pursuant to section 25 of the Act;

a)         Whether the Office properly exercised its discretion to refuse disclosure

[61]            As previously mentioned, Mr. Blank took the position throughout these proceedings that access to the privileged records existed as of right when the litigation expired. Counsel for the respondent took a diametrically opposite view: an absolute and indefinite prohibition against disclosure of these records. The parties engaged the debate on disclosure on an all-or-nothing basis. I can find in the motions judge's decision, who espoused Mr. Blank's position, no discussion or analysis about an exercise of discretion by the Office, let alone a proper or an improper one. No evidence was adduced on that issue, except that we know that the Commissioner reviewed the records and the claim for exemption and, as a result of his intervention, additional disclosure occurred.

[62]            The Office claimed the discretionary exemption provided by section 23 and evidently exercised its discretion not to disclose. However, we do not know, although we can suspect, what factors, policy or public interest considerations it took into consideration in coming to its decision to refuse disclosure. In the actual state of the record before us as a result of the stand taken by the parties and the motions judge, I am simply not in a position to determine whether the discretion was properly exercised or not. I cannot and will not go beyond what the parties have asked us to decide on the basis that they have elected to plead and defend.

b)         Whether the motions judge erred in not setting aside the privilege on account of criminal behaviour by the Crown

[63]            The motions judge reviewed the material before him and concluded that there was on these records no evidence of the criminal activity alleged by Mr. Blank against the Government of Canada officials and counsel acting on their behalf, i.e. obstruction, perjury, extortion, conspiracy, fraud or trespass. In other proceedings before the Manitoba Courts, the Manitoba Queen's Bench found no evidence of the alleged fraud: see R. v. Gateway Industries Ltd., 2002 MBQB 285, at paragraph 32.

[64]            No serious evidentiary basis has been provided to us in support of the allegations of fraud and criminal activity on the part of the Government of Canada or its officials or lawyers. Therefore, there was for the motions judge, and there is for us, no need to review the documents subject to the privilege. However, since the motions judge has reviewed them and made a conclusion which is under attack, we have reviewed the records and we are satisfied that he has reached the right conclusion.

c)         Whether the records subject to the privilege can be severed pursuant to section 25 of the Act

[65]            Section 25 of the Act provides for the disclosure of any part of a record which can reasonably be severed from those parts of the records which contain information or material exempt from disclosure. It reads:

                                                                                                                                 (Emphasis added)

[66]            An earlier contention of the respondent that a record that is subject to solicitor-client privilege is not subject to the severance provision in section 25 has been unequivocally rejected by this Court in Sheldon Blank & Gateway Industries Ltd. v. The Minister of Environment, 2001 FCA 374, at paragraph 13: see also College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665, at paragraphs 65-68. The words "Notwithstanding any other provision of this Act" employed in section 25 make it a paramount section: see Rubin v. Canada, [1989] 1 F.C. 265, at page 271 (F.C.A.). Therefore, general identifying information such as the description of the document, the name, title and address of the person to whom the communication was directed, the closing words of the communication and the signature block can be severed and disclosed. As this Court pointed out in Sheldon Blank & Gateway Industries Ltd., supra, at paragraph 23, this kind of information enables the requester "to know that a communication occurred between certain persons at a certain time on a certain subject, but no more".

[67]            Counsel for the respondent submits that his client has abided by these principles in this case and that the records in question has properly been severed. The appellant's argument appears to have been raised for the first time before us on appeal. If it was raised before the motions judge, he never dealt with it. We have no way of knowing whether severance has been effected and, if so, whether it has been effected properly. Therefore, I would send the matter back to the Federal Court for a review of the records with a view to ascertaining whether the mandatory requirements of section 25 of the Act have been complied with.

[68]            I have now to consider the appellant's submissions regarding the other exemptions claimed by the respondent.

Analysis of the other exemptions claimed

a)         In-confidence information exemption pursuant to paragraph 13(1)(c) of the Act

[69]            Paragraph 13(1)(c) creates a mandatory exemption when the information was received in confidence from a government or government institution. Disclosure is, however, possible when the organization from which the information was obtained consents to disclosure. In issue here is information received in confidence from the Winnipeg Police Services. The record before us undoubtedly reveals that they have refused to consent to a release of the material that they have provided. The exemption was properly claimed and applied.

b)         Personal information exemption pursuant to section 19 of the Act

[70]            The exemption contained in section 19 is also a mandatory exemption designed to protect and prevent the release of personal information as defined in section 3 of the Privacy Act. We have reviewed the material for which the exemption was claimed. It consists of names, personal addresses and phone numbers of the persons therein mentioned. The exemption was justified and correctly applied.

c)         Advice exemption pursuant to section 21 of the Act

[71]            Section 21 is a discretionary exemption which protects, under paragraph 21(1)(a), advices and recommendations developed by or for a government institution. Paragraph 21(1)(b) authorizes a refusal to disclose accounts of consultations or deliberations involving officers or employees of a government institution. These two categories of exemptions were claimed by the respondent.

[72]            This Court found in 340901 Canada Inc. v. Canada (Minister of Industry) (2001), 14 C.P.R. (4^th) 449, at paragraphs 49-52, that the provision intended to favour the free and frank flow of communications between government departments in order to enable the government to discharge its essential functions. The word "advice" has a broader meaning than recommendation: ibidem. Treasury Board Guidelines refer to the exemption as one designed to protect the internal decision-making process of government: see Drapeau and Racicot, Federal Access to Information and Privacy Legislation Annotated 2004, supra, at page 623.

[73]            We reviewed the material for which this exemption was claimed. We are satisfied, as the motions judge and the Commissioner were, that the exemption was applied correctly.

[74]            This brings me to the last point of this appeal, i.e. the scope of the review power of the Court under section 46 of the Act.

The scope of the review power of the Court under section 46 of the Act

[75]            It is not disputed that section 46 of the Act gives this Court the power to review documents that are in evidence before it, subject, of course, to Cabinet documents exempted by section 69: see Canada (Information Commissioner) v. Canada (Minister of Environment) (2000), 187 D.L.R. 127 (F.C.A.), leave to appeal refused (2000), 266 N.R. 198 (S.C.C.). The section reads:

                                                                                                                                 (Emphasis added)

[76]            However, Mr. Blank wants this Court to examine documents that, the record indicates, were either incorporated by reference into the existing records or were attached to documents in these records, but are no longer there. An earlier request of the appellant to the same effect, based on an assumption that the minister's files were somehow incomplete, has been rejected because there was no factual foundation for it: see Sheldon Blank & Gateway Industries Ltd. v. The Minister of the Environment, supra, at paragraphs 7 and 8. The Commissioner had investigated the matter and concluded that all the records had been identified and either disclosed or withheld on the basis of an exemption. This would be sufficient to dispose of demand.

[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.

Conclusion

[78]            For these reasons, I would dismiss the appeal with costs, save for the issue relating to severance of the records pursuant to section 25 of the Act where I would refer the matter back to the Federal Court for a review of the records to ensure that the mandatory requirements of section 25 of the Act have been complied with.

[79]            I would allow the cross-appeal without costs. As admitted by the respondent, the issue of the duration of the litigation privilege under the Act, raised by the cross-appeal, concerned only a few pages and had a limited impact in these proceedings. The respondent was more concerned with the impact of the ruling of the motions judge in future cases. The respondent in the cross-appeal should not be made to bear these costs in these circumstances.

                                                                                                                               "Gilles Létourneau"               

                                                                                                                                                      J.A.

PELLETIER J.A. (on the cross-appeal)

[80]            I have had the benefit of reading the reasons of my colleague Létourneau J.A.    I am in agreement with his disposition of the appeal but I regret that I am unable to agree with his disposition of the cross-appeal. In particular, I take a different view of the effect of section 23 of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act).

[81]            There is no doubt, as found by Létourneau J.A., that the concept of solicitor-client privilege in section 23 of the Act includes the two branches recognized by the case law and the academic writers, namely the legal advice privilege and the litigation privilege. It is equally clear that if there is a valid and subsisting claim of privilege at the time a request for disclosure is made, section 23 applies. Finally, it is not contentious that legal advice privilege is not limited in time, i.e. "once privileged, always privileged". Since I have concluded that section 23 applies only to records which are privileged at the time the request for disclosure is made, the ultimate issue in this cross-appeal is whether at common law, litigation privilege is extinguished when the litigation which gave rise to it is at an end.

[82]            A record which is subject to solicitor-client privilege is a record whose disclosure or production cannot be compelled in a court of law. As the British Columbia Court of Appeal held in Legal Services Society v. British Columbia (Information and Privacy Commissioner), [2003] 8 W.W.R. 399:

[29] What then of the purpose of s. 14 of the British Columbia legislation? Headed "Legal Advice", it states: "The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege." One suspects the provision was intended to protect communications between public bodies qua clients and their lawyers; but again, even if s. 14 had not been enacted, the law would protect information that is subject to solicitor-client privilege, no matter who the lawyer or client.

[My emphasis.]   

[83]            I take this to mean that the source of the right to refuse disclosure of privileged documents is not section 23. The source of the right to refuse disclosure is the law of privilege. Section 23 simply recognizes that right. If privilege has been lost, then there is no longer a right to refuse disclosure and therefore no right which section 23 can recognize. Consequently, the determining factor in deciding whether disclosure of records on the ground of solicitor-client privilege can be maintained is the existence of the privilege at the time the request for access is made.

[84]            There is a substantial body of authority in this country in support of the conclusion that litigation privilege is extinguished when the litigation which gave rise to the privilege is at an end, subject to the possibility that the litigation may be defined more broadly than the particular proceeding in the course of which the document was created. Boulianne v. Flynn, [1970] 3 O.R. 84 (H.C.J.), Meaney v. Busby (1977), 15 O.R. (2d) 71 (H.C.J.), Allied Signal Inc. v. Dome Petroleum Ltd., [1995] 5 W.W.R. 720 (Alta. Q.B.), Franco v. Hackett (2000), 262 A.R. 127, Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, Petro Canada v. Mary J. (The) (1994), 98 B.C.L.R. (2d) 139 (B.C.S.C.) and Wujda et al. v. Smith (1974), 49 D.L.R. (3d) 476 (Man. Q.B.). The Court of Appeal for Ontario held that litigation privilege was limited in time in General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321.

[85]            Canadian text writers are also of the view that litigation privilege is limited in time. See Sopinka J., Lederman S., and Bryant A., The Law of Evidence in Canada (2nd ed.) (Butterworths, Toronto, 1999) at para. 14.86:

Unlike solicitor-client communications, the privilege for third-party communications in preparation for litigation does not last indefinitely. It ends with the litigation for which the reports or other communications were prepared, subject to any undertaking of confidentiality.

[86]            A passage to the same effect is found in Paciocco D., Stuesser L., The Law of Evidence (3rd ed.) (Irwin Law, Toronto, 2002) at p.198:

· Solicitor-client privilege is permanent and survives the termination of the relationship. Litigation privilege ends with the litigation. Once the litigation is over there is no longer a need to maintain the adversarial protection.

[87]            There are some cases which extend litigation privilege in time by taking a wide view of the litigation in respect of which the privilege exists. In Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (Ed Miller Sales & Rentals Ltd.), the Alberta Court of Appeal held that the conclusion of proceedings before the Competition Tribunal did not mean that the litigation was at an end:

... In my view both arguments take too narrow a view of the term "litigation". Once the Director focussed on the Caterpillar Companies to inquire whether they were guilty of offences under the Act, litigation in the fullest sense of the word was then in actual progress let alone in contemplation. The parties could look ahead to many possible procedures. Some under the Act had possible penal consequences; some were civil as this very action establishes. All involved the same issues. The inquiry seems to have resolved itself to the question of the cost of the Caterpillar "no-charge" services and the very same issue appears at the forefront of this action.

The conclusion of the Director's Inquiry did not mean that the litigation was ended. Section 39 of the Combines Investigation Act expressly provides that civil rights of action remain despite the provisions of the Act. The issues raised by the Director were still open to other litigants such as the respondent.

[88]            The same position was taken in London Guarantee Insurance Co. v. Guarantee Co. of North America, [1995] O.J. No. 4316.

[89]            On balance, the weight of authority favours the conclusion that litigation privilege is extinguished when the litigation which gave rise to it comes to a conclusion, subject to the possibility of defining that litigation more broadly than the particular proceeding which gave rise to the claim.

[90]            On the facts of this case, this leads to the conclusion that section 23 of the Act does not apply to those documents for which a claim of litigation privilege is made because the documents in respect of which the privilege is asserted lost their privileged status when the criminal prosecution ended.

[91]            The Court of Appeal for Ontario came to the opposite conclusion in Ontario (Attorney General) v. Big Canoe (2002), 220 D.L.R. (4^th) 467 (Big Canoe). As in this case, the requester under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31 (the Ontario Act), sought disclosure of the Crown prosecutor's file for use in a civil action arising from a criminal prosecution. The specific provision which the Court relied upon in order to dispose of the matter reads as follows:

19. A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

[92]            The Court found that the so-called second branch of the section - "or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation" - was intended to give Crown counsel the benefit of a permanent exemption from disclosure:

[12] The Minister appears to have thought that the words used in branch two described the ambit of solicitor-client privilege and could be applied where there was no true client. In fact those words describe the work product or litigation privilege which covers material going beyond solicitor-client confidences and embraces such items as are the subject of this proceeding, photographs and a video gathered in the preparations for litigation.

[13] If we are assisted in any way by the context of this statement it is in knowing that the intent was to give Crown counsel permanent exemption. Solicitor-client privilege for confidential matters does not come to an end. The Ministry thought it was merely extending this privilege to Crown counsel and, thus, must have intended that it be permanent. And that is the plain meaning of the words used in branch two...

[93]            In my view, these passages are best understood in the light of the comments of the Divisional Court in the decision under appeal, reported at (2001) 208 D.L.R. (4^th) 327:

[30] The Inquiry Officer began her Branch 2 analysis as follows:

The second branch of section 19 is parallel to the two branches of the common law solicitor-client privilege. The circumstances of this appeal raise the issue of whether the limitations on the common law privilege should also generally apply to Branch 2 of section 19. The wording of the exemption itself does not clarify this issue and, on this basis, the legislative history of the exemption is relevant to the proper interpretation of the exemption.

[31] With respect, we disagree with her analysis. Branch 2 of s. 19 is not parallel to the two kinds of common law solicitor-client privilege contained in Branch 1. Exemptions from disclosure under Branch 1 will change over time as solicitor-client privilege changes in accordance with the evolving common law. What is exempt today under Branch 1 may not be so tomorrow, and vice versa.

[32] In contrast, when it comes to Branch 2, there is no issue to "clarify". There is no reference in Branch 2 to the common law principle of solicitor-client privilege (which includes litigation privilege). A head may refuse to disclose a record that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of, or for use in, litigation. The language is clear and unambiguous. Unlike Branch 1, no external considerations such as a change in the common law, can serve to import a different way of construing the meaning of Branch 2. We find no need to resort to the legislative history of the exemption in order to properly interpret it. As A.P. Herbert's Lord Mildew put it - "If Parliament does not mean what it says, it must say so". Thus, if it was not the intention of Branch 2 of s. 19 to enable government lawyers to assert a privilege more expansive or durable than that available at common law to solicitor-client relationships (the Inquiry Officer found it was not), it was open to the Legislature to say so.

[94]            The point made in the Divisional Court was that the "second branch" did not refer to privilege. It referred to the circumstances of the making of the documents. This is a point to which I shall return in connection with the difference in wording between section 19 of the Ontario Act and section 23 of the Act.

[95]            It is important to understand the limited reach of this decision. One must keep in mind the testimony of Attorney General Scott to the Standing Committee on the Legislative Assembly as to the rationale for the "second branch":

Hon. Mr. Scott: As I said the other day, this is just to expand the coverage designed to ensure protection for solicitor-client material to crown counsel, who according to how you view the law, may or may not have a client and therefore may or may not have, technically, the benefit of solicitor-client privilege. I would have not thought the issue was contentious.

...

The key words, and the words that clarify, are "crown counsel" because the case is made that crown counsel may not, in a highly theoretical sense, have a client. Because crown counsel has a kind of independent role that a normal lawyer does not have, a crown counsel may be thought, in a technical sense, not to have a client. The policeman is not the crown counsel's client, but as a matter of clarification it was recognized that opinions given by crown counsel should be producible or not in the same way as opinions given by any other crown lawyer [sic].

(Big Canoe, para. 9)

[96]            This passage makes it clear that the reference in section 19 to Crown counsel is a reference to Crown attorneys in criminal prosecutions, and not a reference to all counsel in the employ of the government. (In these reasons, I use "Crown counsel" and "Crown attorney" interchangeably.) Crown attorneys occupy a unique position in the legal system in the sense that they are agents for the Attorney General who act in the public interest. Neither the Crown attorney, acting in that capacity, nor the Attorney General has a client in the traditional sense. Regina v. Doucet (1994), 89 C.C.C. (3d) 474 (Man. C.A.) at p. 476-477 aff'd [1995] 1 S.C.R. 758. On the other hand, it is clear that lawyers who are employed by the government in a capacity other than prosecutors have a solicitor-client relationship with those they advise. The Supreme Court put this question to rest in R. v. Campbell, [1999] 1 S.C.R. 565:

[50] ... One thing is clear: the fact that Mr. Leising [a lawyer employed by the Department of Justice] is a salaried employee did not prevent the formation of a solicitor-client relationship and the attendant duties, responsibilities and privileges. This rule is well established, as set out in Crompton (Alfred) Amusement Machines Ltd. v. Comrs. of Customs and Excise (No. 2), [1972] 2 All E.R. 353 (C.A.), per Lord Denning, M.R., at p. 376:

Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer. For that reason the judge thought that they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges . . . . I have always proceeded on the footing that the communications between the legal advisers and their employer (who is their client) are the subject of legal professional privilege; and I have never known it questioned.

It follows from this that Big Canoe deals with a very narrow problem which is an exemption from disclosure under the Ontario Act of certain records in the hands of Crown attorneys. It is not a case which deals specifically with litigation privilege, or the position of government lawyers other than Crown attorneys in relation to disclosure.

[97]            There are significant differences in the wording of section 19 of the Ontario Act and section 23 of the Act. Section 23 contains no reference to Crown counsel though I am prepared to assume for the purposes of this appeal that Parliament took for granted that which the Ontario legislature attempted to make explicit, namely that the work of Crown attorneys can give rise to claims of solicitor-client privilege.

[98]            There is however, another difference in the language, which is of more importance. Section 19 allows the head to refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation. The section describes two kinds of records. The first are records which are subject to solicitor-client privilege. The second are records that were prepared in certain circumstances involving Crown counsel. There is no requirement that the second kind of records be privileged. This is why the Court found that the temporal limitation inherent in litigation privilege did not apply. The right to refuse to disclose records emanating from the work of Crown counsel does not turn on the existence of any privilege, but on their creation in circumstances which would give rise to a claim of privilege, whether that privilege continued in force or not.

[99]            Section 23, on the other hand, simply refers to a record that "is subject to a claim of solicitor-client privilege." It describes only a single type of record - one that is subject to solicitor-client privilege. That imposes a rather different requirement than was present in Big Canoe. This Court took the position that a subsisting claim of privilege was required to trigger section 23 in Stevens v. Canada (Prime Minister) (C.A.), [1998] 4 F.C. 89 when Linden J.A. held that:

[23] ... The effect of the provisions of the Act on the content of the privilege is nil. It was correctly determined by Rothstein J. that section 23 of the Act incorporates holus-bolus the common law of solicitor-client privilege. That term is not defined elsewhere in the Act. Hence, it can only be presumed that what is covered by the words "solicitor-client privilege" is the common law doctrine of solicitor-client privilege. That being the case, it is necessary for the government head to determine, before considering the operation of the Act, whether a document is subject to the privilege. If it is, then he or she may refuse disclosure. But the preliminary question is determined not in the context of the Act, but in the context of the common law. If the material is subject to the privilege, then the discretionary decision under section 23, whether to disclose it or not, is done in the context of the Act along with its philosophical presuppositions.

[My emphasis.]

[100]        In my view, this is the critical difference between the Act and the Ontario Act. The latter does not require, in the case of Crown counsel, that there be a subsisting solicitor-client privilege as a condition of refusing disclosure, while the Act requires, in all cases, that there be a subsisting solicitor-client privilege as a condition of refusal to disclose. In short, section 23 of the Act is designed to deal with documents which are privileged, not those which were once privileged. Once the privilege is lost, then other mechanisms must be found to prevent disclosure in cases where it would be inappropriate. In some cases, a broad definition of the litigation, as was done in Ed Miller Sales & Rentals Ltd. could be used to prevent the premature release of a litigation file. In others, recourse may be had to other exemptions under the Act.

[101]        As a result, section 23 does not have an effect analogous to that attributed to section 19 of the Ontario Act in Big Canoe.

[102]        In the end result, section 23 does not exempt from disclosure under the Act documents which are not subject to solicitor-client privilege at the time the application is made, even if those documents were the subject of the litigation privilege at some other time. I would therefore dismiss the cross-appeal. Given the divided success, each party should bear their own costs.

                                                                            "J.D. Denis Pelletier"           

                                                                                                       J.A.

"I agree.

     Robert Décary, J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-233-03

STYLE OF CAUSE:               Sheldon Blank v. The Minister of Justice

PLACE OF HEARING:                     Winnipeg, Manitoba

DATE OF HEARING:                       May 31, 2004

REASONS FOR JUDGMENT ON THE APPEAL BY: LÉTOURNEAU J.A.

CONCURRED IN BY:                                               DÉCARY J.A.

                                                                                 PELLETIER J.A.

REASONS FOR JUDGMENT ON THE CROSS-APPEAL BY: PELLETIER J.A.

CONCURRED IN BY:                                               DÉCARY J.A.

DISSENTING REASONS BY:                        LÉTOURNEAU J.A.

DATED:                                              September 8, 2004

APPEARANCES:

SOLICITORS OF RECORD:

Date : 20040908

Dossier : A-233-03

Ottawa, Ontario, September 8, 2004

CORAM :       DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN :

                                     SHELDON BLANK

                                                                                            Appellant

                                                          (Respondent in Cross-Appeal)

                                                   and

                            THE MINISTER OF JUSTICE

                                                                                        Respondent

                                                              (Appellant in Cross-Appeal)

                                           JUDGMENT

The appeal is allowed in part, on the sole question of severability, and the matter is referred back to the Federal Court for determination of whether the mandatory requirements of section 25 of the Access to Information Act have been satisfied. The appeal is otherwise dismissed.

The cross-appeal is dismissed.

Each party shall bear their own costs.

                                                                                   "Robert Décary"                            

                                                                                                      J.A.