ARCHIVED - Info Source Bulletin Number 28

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Robert Gilles Gauthier and National Capital News v. Minister of Justice and Privacy Commissioner of Canada

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

File No.:	T-653-02
Reference:	2004 FC 655
Date of decision:	May 5, 2004
Before:	Mosley J.
Sections of ATIA / PA:	Ss. 27, 41 Privacy Act (PA)

Abstract

• Standard of review for decisions regarding applicability of s. 27 PA exemption is correctness
• S. 27 PA including both solicitor-client communications as well as litigation privilege
• Notes and recommendations prepared by DOJ counsel as government's response to decision of international rights body fall within litigation privilege

Issues

1. What is the appropriate standard of review with respect to a decision to exempt documents under the s. 27 PA exemption for solicitor-client privilege?
2. Did the Minister's delegate err in determining that the records in question were exempt from disclosure to the applicant due to solicitor-client privilege under s. 27 PA?

Facts

The applicant, founder of the National Capital News ("NCN"), had sought unsuccessfully to obtain full membership in the Parliamentary Press Gallery. Among other actions, the applicant had appealed to the United Nations' Human Rights Committee ("UN Committee") for the International Covenant on Civil and Political Rights, arguing that his right to freedom of expression had been violated through his denial of access to the Press Gallery. The Committee found in his favour. The applicant believed that certain misrepresentations and prejudicial or inaccurate information about him contained in files held by the Department of Justice ("DOJ") had affected the manner in which the government had responded and continued to respond to his inquiries in regards to Press Gallery access. Consequently, he made a request for access to information related to him and NCN that was held by DOJ, pursuant to his right under s. 12 PA.

The DOJ ATIP office provided the applicant with a preliminary package of 531 pages of information, and a final package of 154 additional pages. Some pages and portions thereof were exempted from release on the grounds of ss. 26 (another individual's personal information) and 27 (solicitor-client privilege) PA.

The applicant complained to the Privacy Commissioner ("Commissioner"). The Commissioner's investigation concluded that the ATIP Office had failed to provide the requested information within the statutory time limit and had failed to provide notice of extension of the time limit. The Commissioner, upon a review of those pages of information that were partly or completely exempted from access, concluded that the Director of the ATIP Office was authorized to refuse disclosure pursuant to s. 27 but requested that DOJ reconsider the exercise of its discretion, which request resulted in the disclosure of some additional pages.

Although the applicant originally sought review of both the decision of the DOJ and the findings of the Commissioner, at the outset of the hearing the applicant conceded that the Commissioner's findings were not reviewable by the Court. Further, the propriety of the s. 26 exemption was not argued, counsel confining themselves to the s. 27 exemption.

Decision

The application was allowed in part. Certain records were ordered released.

Reasons

Issue 1

The appropriate standard of review here is correctness, based on an assessment of the factors under the pragmatic and functional approach.

First, the s. 41 PA right of review points to a minimal degree of deference to the ATIP Office's decision.

Second, the decision-maker, the Director of the ATIP Office, does not have a greater amount of expertise relative to the Court on the issue of whether documents are subject to solicitor-client privilege, a matter clearly within the particular expertise of the Court. Further, in the context of a s. 41 application for review, the government institution is regarded as having lesser expertise regarding the interpretation of legal questions in comparison to the Court. Further, while the s. 27 exemption has an element of discretion in determining whether a document found to be solicitor-client privileged may nonetheless be disclosed, the determination of whether the document is so privileged is not discretionary.

Third, the purpose of s. 27 must be regarded as fundamental to our society. Shielding information developed in the solicitor-client relationship from disclosure is a central underpinning within the administration of justice and the functioning of the rule of law. The balancing of these interests points to a less deferential standard of review, in that an independent review by the court will be required when such important interests are at stake.

Finally, the question at issue is one of mixed fact and law; here, the question concerns the application of the legal definition of solicitor-client privilege to the information in dispute.

Issue 2

As the term "solicitor-client privilege" as used in s. 27 is not defined in the PA, common law principles recognizing the term as a fundamental and substantive rule of law in Canada are applicable. There are only a few, clearly defined exceptions to this privilege, including the two raised here by the applicant: (1) communications between solicitor and client which are directed towards an unlawful purpose, such as facilitation of a crime or fraud; and (2) the issue of the existence of a client who may have waived the privilege.

The solicitor-client privilege in s. 27 PA includes both the solicitor-client communications as well as the litigation privilege. The Court was satisfied that, with a few specific exceptions, the records in issue contained information which involved solicitor-client advice or notes and recommendations prepared in contemplation of litigation, that is, the government's response to the UN Committee's decision and also its response to a variety of other legal proceedings initiated by the applicant. The Court was also satisfied that the records in issue did not contain advice directed towards an unlawful purpose or end. The applicant's argument that DOJ had "minimized" the UN Committee's Views on the applicant's case and were thus attempting to avoid compliance with Canada's international obligations is not akin to a situation where a lawyer provides advice to a client that would facilitate a crime or fraud; therefore, an exception to solicitor-client privilege is not warranted on this ground.

With respect to the second issue, the applicant argues, first, that the solicitor-client privilege cannot apply in the absence of an "owner" of the privilege. The Court rejected that argument. It held that, following R. v. Campbell, [1999] 1 S.C.R. 565, Stevens v. Canada (Prime Minister), [1998] 4 F.C. 89 (C.A.) and Weiler v. Canada (Minister of Justice), [1991] 3 F.C. 61 (T.D.), solicitor-client privilege attaches to legal advice provided by "in-house" lawyers to their client(s) in various departments of the government, as well as to documents prepared in anticipation of litigation. In the present case, a client clearly existed, namely the Government of Canada as represented by the Department of Justice.

The applicant's second argument that the failure by DOJ counsel to consult with their client as to whether the client would waive the privilege invalidates the privilege, was also dismissed. Solicitor-client privilege exists whether or not the client is aware of the exact parameters of such obligation of confidentiality, and until instructions to waive the privilege have been received from the client, a lawyer must maintain the privilege. Difficulties in determining whether the privilege has been waived in cases where the government is the client do not lead to a presumption that a government solicitor has acted without instructions from his client and has failed to keep his client informed of the ongoing developments in a case, even where there is no explicit evidence of the government having turned its mind to the possibility of waiving the privilege. Unless clear evidence to the contrary is shown, a solicitor is presumed to have relayed all information about a particular case to his or her client. If the client had desired to waive its privilege, then the DOJ solicitors would be obliged to carry out their client's wishes. The lack of reference to waiver in the respondent's affidavit must be regarded as the client failing to assert the waiver.

The Court concluded that certain pages that had been withheld were not exempt as they did not contain solicitor-client privileged information.

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