ARCHIVED - Info Source Bulletin Number 28

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Sheldon Blank v. Minister of Justice

Indexed as: Blank v. Canada (Minister of Justice)

File No.:	A-233-03
Reference:	2004 FCA 287
Date of decision:	September 8, 2004
Before:	Décary, Létourneau and Pelletier JJ.A.
Sections of ATIA / PA:	Ss. 13, 19, 21, 23, 25, 46 Access to Information Act (ATIA)

Abstract

• S. 23 ATIA solicitor-client privilege covering both legal advice and litigation privilege
• Duration of litigation privilege
• Application of s. 25 ATIA to solicitor-client privileged record
• Role of Court under s. 46 ATIA

Issues

1. Does litigation privilege fall under s. 23 and does it end when the litigation ends?
2. Were the other ATIA exemptions correctly applied?
3. Does s. 25 ATIA apply to a record subject to s. 23?
4. Does s. 46 ATIA allow the Court to order the reconstitution of a record?

Facts

The appellant had been charged on counts of alleged pollution of the Red River. The charges against Gateway related to breaches of the reporting requirements of the Fisheries Act. The charges against the appellant and Gateway were ultimately quashed. Both the appellant and Gateway sued the federal government in damages, It is both in the context of the criminal prosecution and the civil lawsuit that the appellant made access requests to the ATIP Office of the Department of Justice to obtain all records pertaining to his prosecution and that of Gateway.

Some of the records sought were exempt from disclosure on the basis of subss. 13(1), 19(1), 20(1), 21(1) and s, 23 of the ATIA. Following the Information Commissioner's investigation, the appellant sought judicial review of the refusal by the Minister of Justice to provide the records.

The present proceedings involve an appeal and a cross-appeal against the decision of the motions judge (2003 FCT 462). The appeal questions the motions judge's decision with respect to s. 13, 19, 21, 23, the severability of information (s. 25) and puts in issue the powers of the Court under s. 46. The cross-appeal by the Minister of Justice addresses the issue of the duration of the litigation privilege. More precisely, the question is whether the motions judge erred when he decided that the litigation privilege, if it could be claimed to exclude a record from release, expires when the litigation ends with the result that the records containing information subject to the privilege must be released.

Decision

The appeal is allowed in part, on the question of severability, and the matter is referred back to the Federal Court for determination of whether the mandatory requirements of s. 25 ATIA have been satisfied. The cross-appeal is dismissed.

Reasons

Issue 1 – Duration of litigation privilege

The Court unanimously held that the concept of solicitor-client privilege in s. 23 ATIA includes the legal advice privilege branch and the litigation privilege branch. On the question of the duration of the litigation privilege, the majority of the Court (Létourneau J.A. dissenting) held that the weight of authorities favour 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 proceedings which gave rise to the claim. On the facts of the case, this means that s. 23 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.

In coming to this conclusion, the majority of the Court distinguished this case from the decision of the Ontario Court of Appeal in Ontario (Attorney General) v. Big Canoe (2002), 220 D.L.R. (4^th) 467 ("Big Canoe") on the basis of a significant difference in the wording of s. 19 of the of the Ontario Freedom of Information and Protection of Privacy Act^[3] (FOIP) and that of s. 23 ATIA. S. 19 FOIP describes two kinds of records. The first are records subject to the solicitor-client privilege; the second are records that were prepared in certain circumstances involving Crown counsel, i.e. Crown attorneys in criminal prosecutions. There is no requirement that the second kind of records be privileged, hence the finding of the Ontario Court of Appeal that the temporal limitation inherent in litigation privilege did not apply. In other words, the right to refuse disclosure of 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. S. 23, on the other hand, describes a single type of record only—one that is subject to solicitor-client privilege. In contrast to s. 19 FOIP, s. 23 ATIA requires that there be, in all cases, a subsisting solicitor-client privilege as a condition of refusal to disclose. In short, s. 23 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 could be used to prevent the premature release of a litigation file. In others, recourse may be had to other exemptions under the ATIA.

In the end result, s. 23 does not exempt from disclosure records which are not subject to the solicitor-client privilege at the time the access request is made, even if those documents were the subject of the litigation privilege at some other time.

Issues 2, 3 and 4 – Application of ATIA exemptions, severance and role of Court

The record before the Court showed that the Winnipeg Police Services had refused to consent to a release of the material provided by it. The s. 13 exemption was therefore properly claimed and applied. The Court also found that the ss. 19 and 21 exemptions had been correctly applied.

A record subject to solicitor-client privilege is subject to s. 25 ATIA. The words "Notwithstanding any other provision of this Act" contained in s. 25 make it a paramount section. It follows that 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 stated by the Court of Appeal in the previous Blank decision, 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"^[4].

In the absence of evidence that would give the Court reasonable grounds to believe that the integrity of the records has been tampered with, the Court's power under s. 46 to review is limited to a review of the records that are in evidence before it. The power does not extend to ordering the reconstitution of records. 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.

Comments

The Attorney General of Canada has sought leave to appeal to the Supreme Court of Canada on the issue of the duration of the litigation privilege.

Leave was granted on April 21, 2005.

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