Info Source Bulletin Number 30

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Sheldon Blank v. Minister of Justice

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

File No.:	T-2073-00
Reference:	2005 FC 1551
Date of decision:	November 17, 2005
Before:	Mosley J.
Sections of ATIA / PA:	Ss. 23, 25 Access to Information Act (ATIA)

Abstract

• Effect of s. 25 (severance) on s. 23 (solicitor-client privilege exemption)
• Records subject to s. 23 to be severed in same manner as any other record
• Information that can stand alone must be severed, unless such release compromises the solicitor-client privilege
• Severance must be reasonable
• Disclosure of privileged records by the Crown in criminal proceedings not amounting to waiver
• Partial disclosure of privileged documents under the ATIAnot amounting to waiver of the entire document

Issue

(1)     Does solicitor-client privilege attach to the entire document or only to those parts of the document which provide legal advice?

(2)     If a privileged document contains within it a listing of other documents, which may or may not be covered by the privilege, should the list be severed from the privileged document and released?

(3)     What is the effect of the release of information to satisfy the Crown's constitutional obligations for disclosure in criminal prosecutions as opposed to voluntary waiver?

(4)     Does partial disclosure under the Access to Information Act of a document for which solicitor-client privilege is claimed amount to waiver of privilege for the entire document?

Facts

The applicant (Mr. Blank) sought access to records held by the department of justice which related to prosecutions of Mr. Blank himself and gateway industries inc. For regulatory offences under both the Fisheries Act and the Pulp and Paper Effluent Regulations. The department released some records and withheld others pursuant to ss. 13 (information obtained in confidence), 19 (personal information), 21 (advice and recommendations) and 23 (solicitor-client privilege) of the ATIA. The applicant filed a complaint with the information commissioner. An investigation ensued and following the information commissioner's recommendations and report, the applicant sought judicial review pursuant to s. 41 of the ATIA. The applicant succeeded in part on the s. 41 review (2003 fct 462) and appealed the determination on which he was not successful to the federal court of appeal. The minister cross-appealed. In dismissing both the appeal and the cross-appeal, the fca remitted the matter to the federal court for determination of whether the s. 25 ATIA requirements had been complied with (2004 fca 287) as this question had apparently not been raised in the initial review application. Thus, the present proceedings required this court to determine whether the minister had met his s. 25 obligation to sever accessible information and whether additional information could be severed from the records. The material before the court consisted, for the most part, of records exempted pursuant to s. 23 ATIA

Decision

Records released to the applicant in other proceedings and which the respondent agreed to release in whole or in part prior to and during the hearing are to be released. Some additional information was ordered to be severed and released. Several documents exempted in their entirety were lawyer's work product including draft court submissions or draft communications to opposing counsel. In those cases, the entire document was privileged and not severable.

Reasons

Issue 1: Does solicitor-client privilege attach to the entire document or only to those parts of the document which provide legal advice?

Citing the decision of the Ontario Court of Appeal in General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321, the Court held that where a communication between solicitor and client takes place for the purpose of conveying or receiving information on matters of fact, the communication is not privileged and may be obtained on discovery in civil proceedings. The Court added, however, that a privileged communication does not lose its privilege merely because it contains matters of fact which are not privileged, and that in those instances, the matters of fact can be severed from the privileged communication for the purpose of discovery. Where, as in this instance, a claim of solicitor-client privilege may conflict with the public's right to access information in the hands of the government, one must note the paramount nature of s. 25 ATIA. Thus, it was the Court's view that documents determined to be subject to the exemption provided by s. 23 are to be severed in the same manner as any other document subject to severance and that information that can stand alone, without compromising the privilege, must be severed and released.

However, severance must be reasonable. On this point, the Court held that "severance within a document under section 25 is only to be affected where it is reasonable to do so. Reasonableness requires that the severed information be capable of standing independently and that severance must not result in the release of meaningless words and phrases out of context or provide clues to the content of the exempted portions. Severance must be done bearing in mind the importance of impairing solicitor-client privilege as little as possible."

Issue 2: If a privileged document contains within it a listing of other documents, which may or may not be covered by the privilege, should the list be severed from the privileged document and released?

Based in large part on the analysis entertained above, the Court stated that there is no principled basis to withhold lists of additional documents and that such lists should be treated like other information contained in the privileged communication. That is to say, any information which can be reasonably severed from the privileged communication, including a list of other documents, should be severed pursuant to s. 25. The severance provision in s. 25 should apply consistently to all types of information. If solicitor-client privilege is claimed for one or more of the listed documents, disclosure of the list should not compromise the privilege claimed in that document. The privilege in the document remains until such time as its content is disclosed.

Issue 3: What is the effect of the release of information to satisfy the Crown's constitutional obligations for disclosure in criminal prosecutions as opposed to voluntary waiver?

Where the disclosure of a document is compulsory, implied waiver does not occur. Disclosure is compulsory in criminal proceedings based on the principle developed in R. v. Stinchcombe, [1993] 3 S.C.R. 326. As a result, disclosure of a document based on the Crown's obligations to a defendant in a criminal proceeding should not be considered as implied waiver.

In obiter, the Court reiterated the well established principle that "laws requiring disclosure in other legal proceedings cannot narrow or broaden the scope of disclosure required by the Access to Information Act". Thus, in determining whether appropriate disclosure has been made under the ATIA, a court should consider only the ATIA and the caselaw guiding its interpretation.

Issue 4: Does partial disclosure under the Access to Information Act of a document for which solicitor-client privilege is claimed amount to waiver of privilege for the entire document?

The partial disclosure of documents to the requester under the ATIA cannot be taken as waiver of privilege over the entire document. Release under the Act is done for the purpose of providing statutorily required disclosure and has no effect upon the status of the documents as privileged. Portions of the document may be released due to legal obligations on behalf of the Crown, but this does not constitute waiver.

Comments

The Crown is appealing this decision. Mr. Blank has cross-appealed.

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