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BETWEEN: and
Heard at Winnipeg, Manitoba, on February 28, 2007. Judgment delivered at Ottawa, Ontario, on March 8, 2007.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: EVANS J.A. PELLETIER J.A.
Docket: A-123-06 Citation: 2007 FCA 101
CORAM: LÉTOURNEAU J.A. EVANS J.A. PELLETIER J.A.
BETWEEN: SHELDON BLANK Appellant and THE MINISTER OF JUSTICE Respondent
REASONS FOR JUDGMENT
[1] As I understand the claims of Mr. Blank, who is self-represented, this appeal from an order of Kelen J. of the Federal Court of Canada (judge) raises the following issues:
(a) whether the judge erred in allowing the parties to make representations to the Court regarding the filing of revised confidential affidavits;
(b) whether the judge erred in receiving the respondent’s representation in camera on an ex parte basis;
(c) whether the judge erred in allowing the respondent to file confidential affidavits; and
(d) whether the judge erred in not ordering the disclosure of material that the respondent chose not to file in the record.
Facts and procedure
[2] The issues arise in the context of a request for access to information for which the respondent claimed solicitor-client privilege as a justification for his refusal to disclose certain parts of the requested records. The appellant brought four applications for judicial review pursuant to section 41 of the Access to Information Act, R.S.C. 1985, c. A-1, as amended (Act). The respondent sought to file, on a confidential basis, affidavits and information relating to an investigation by the Information Commissioner. His request was granted by the Federal Court. The appellant appealed the decision; Blank v. Canada (Minister of Justice), 2005 FCA 405.
[3] On appeal, this Court held at paragraph 10 of the reasons for judgment that “where the government files material explaining its reasons for refusing to disclose records, subsection 47(1) will apply to portions of the material that would disclose the basis of the government’s confidentiality claim”. Subsection 47(1) reads:
[4] As it appears from the provision, the Court is mandated to take precautions to prevent the disclosure of “any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record” or “any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under the Act, does not indicate whether it exists”.
[5] This Court also ruled that the Commissioner’s obligation of confidentiality under sections 35 and 62 of the Act does not entitle the respondent to have treated as confidential the material pertaining to the investigation by the Commissioner upon which the respondent seeks to rely: see paragraphs 15 and 16 of the reasons for judgment.
[6] Consequently, the above material that the respondent wanted to file confidentially, either in whole or in part, would be subject to section 47 of the Act and to Rules 151 and 152 of the Federal Courts Rules (Rules): ibidem, at paragraph 17. Of course, the respondent could elect not to file such material or to file it publicly.
[7] Finally, this Court held that the issue of confidentiality of the said material had to be decided by the motions judge before the hearing of the merits of the section 41 applications. Consequently, the matter was remitted to him so that he could make the determination required under subsection 47(1) of the Act and under Rule 151 of the Rules: ibidem, at paragraphs 17 and 22.
[8] Pursuant to this Court’s decision, the judge issued a direction on December 19, 2005: see appeal book, volume 1, pages 12 and 13. He invited the respondent to file, with representations to the Federal Court, revised “confidential affidavits” setting out the material which the respondent wished to file in confidence. The appellant was also invited to and did make representations to the judge with respect to the matter.
[9] On March 14, 2006, the judge issued directions advising the parties that he would conduct an in camera teleconference to receive representations ex parte from the respondent in accordance with section 47 of the Act. The subject of the representations would be the letters sent to the Office of the Information Commissioner that the respondent wanted to include in the confidential affidavits. The directions indicated that the letters could be ordered removed.
[10] Finally, on March 15, 2006, the judge issued an order that the confidential affidavits of Kerry Clark and Helen Ryan, as amended, be filed in confidence pursuant to Rule 151 of the Rules. It is this order of March 15, 2006 that is the subject of the present appeal.
Analysis of the grounds of appeal
[11] While the appeal is of the March 15, 2006 order, the grounds of appeal raised by the appellant inappropriately go beyond that order. They also attack the December 19, 2005 order, as well as the March 14, 2006 direction. I will nonetheless address each ground of appeal.
Whether the judge erred in allowing the parties to make representations to the Court regarding the filing of revised confidential affidavits
[12] It is rare that a party to a proceeding complains that the judge gave him the opportunity to be heard. Indeed, it is the first time that I have heard a claim that proceedings should be set aside because the judge conducted them in a manner that ensured procedural fairness. The appellant wanted the issue to be decided without the judge having the benefit of the parties’ views on the nature and character of the material sought to be filed as confidential.
[13] The judge’s decision to hear further representations from the parties so as to ensure compliance with the decision of this Court was certainly within the Court’s power to control its own process. The judge adopted a prudent course of action that increased the fairness of the proceedings.
[14] I see no merit whatsoever in this ground of appeal.
Whether the judge erred in receiving the respondent’s representation in camera on an ex parte basis
[15] Subsection 47(1) of the Act provides expressly for ex parte representations and in camera hearings to avoid disclosure of information on the basis of which the head of a government institution is authorized to refuse disclosure of a record. In my view, the judge was fully justified to take measures, including an in camera hearing and ex parte representations, to determine what letters to the Commissioner, if any, should remain confidential. Otherwise, an adversarial hearing of the matter, whether public or in camera, would have rendered the exercise illusory.
Whether the judge erred in allowing the respondent to file confidential affidavits
[16] It will be recalled that, in sending the matter back to the motions judge, this Court asked him to determine whether some of the material that the respondent intended to file should be filed confidentially in order to avoid disclosure of information exempted from disclosure under the Act. This is the function that the judge performed.
[17] In this case, the exemption from disclosure was claimed on the basis of solicitor-client privilege. It is now well recognized that solicitor-client privilege deserves a special attention. The legal advice privilege has evolved into a substantive rule of law and a principle of fundamental justice within the meaning of the Canadian Charter of Rights and Freedom. It is fundamental to the Canadian legal system and essential for its effective functioning: Lavallée, Rackel and Heinze v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraph 18. Therefore, the privilege must be jealously guarded and remain as absolute as possible: R. v. McClure, [2001] 1 S.C.R. 445 at paragraphs 17, 24 and 31; Lavallée, Rackel and Heinze, supra at paragraph 36; and Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809 at paragraph 18.
[18] I have reviewed the revised confidential affidavits and compared the material therein with the material released to the appellant in the public version of the said affidavits. I am satisfied that the material accepted by the judge as confidential and found in the four Confidential Appeal Book volumes was properly so regarded. Disclosure of the material excluded from the public version would undermine the solicitor-client privilege claimed under section 23 of the Act.
[19] The public version of the revised confidential affidavits shows how seriously the Department of Justice and other related government departments took their responsibilities under the Act regarding the disclosure of records and the protection of the privilege. In a nutshell, the public version of the confidential affidavits provide information about the application of the exemption and the internal consultations and processing of the appellant’s request to ensure that disclosure is effected as mandated by and in conformity with the Act.
[20] A review of the material kept confidential does not support the allegations of improper behaviour that the appellant made at the hearing before us against the government and counsel for the government. On the contrary, counsel for the government, Mr. Rupar, is to be commended for his professionalism and integrity in compiling and extensively reviewing this material for the benefit of the Federal Court, our Court and the appellant. Two examples will illustrate his exemplary behaviour.
[21] In reviewing the voluminous documents in respect of some of which the privilege is claimed, he found one letter included in the confidential material that he indicated to us will be released because he learned subsequently that the response to that letter had been disclosed in other proceedings. After reviewing the content of the letter, he concluded in the circumstances that it was appropriate to waive the privilege with respect to that letter.
[22] The second example relates to the issue of implied waiver of solicitor-client privilege. Mr. Rupar assumed the role of the appellant in this respect in order to assist him. He responsibly drew our attention to a practice often referred to as “pleading of reliance” on legal advice or the “good faith” defence. According to some cases, reliance on solicitor-client privileged advice in support of a course of action may amount to an implied waiver of that privilege. To put it differently, a party cannot take a course of action based on legal advice and then seek to shelter that advice from disclosure: see Campbell and Shirose v. The Queen, [1999] 1 S.C.R. 565 at paragraphs 47 and 70.
[23] The case of The Ministry of Health and the Attorney General of Canada v. Apotex, 2004 FCA 280 is one instance in which this Court agreed that the Crown had impliedly waived its privilege concerning communications between the Minister and counsel when it later relied upon those communications to establish the reasonableness of the delay in making a decision. Considerations of fairness to the parties were central to the Court’s determination.
[24] Counsel for the respondent submitted that this case and those referred to in the Federal Court’s decision are distinguishable. I agree. In the present instance, the respondent is not submitting a defence based on legal advice in the four section 41 proceedings. Rather, he claims the legal advice privilege itself. The revised confidential affidavits are simply providing to the Court, with attached exhibits consisting of letters and exchanges of communications, information that explains how, when and why a solicitor-client privilege exemption was claimed and still applies.
[25] These exhibits have been generated by the appellant’s request for disclosure. They are the necessary records prepared by the respondent to respond to the appellant’s request. An indiscriminate release of all these records would simply defeat the purpose of the privilege, not only in this case, but in future cases as well. On the other hand, failure to take the steps undertaken to ensure compliance with the Act and, accordingly, to generate records of the kind here in issue for fear of having to release them would weaken the privilege by making it almost impossible to defend the claim for privilege.
[26] I am satisfied that the judge did not err in ensuring the confidentiality of some of the material in the affidavits of Kerry Clark and Helen Ryan.
Whether the judge erred in not ordering disclosure of material that the respondent chose not to file in the record
[27] The appellant contends that he should have been given the material that the respondent decided not to file in the record of the four pending section 41 proceedings.
[28] Pursuant to the decision of this Court and the Direction issued by the Federal Court on December 19, 2005, the respondent filed revised confidential affidavits. These revised affidavits, accepted by the Federal Court, contained material that the respondent believed should remain confidential. As for other material not included in the material filed confidentially, this Court, in its earlier ruling, left it to the respondent to decide whether or not he wanted to file it in the proceedings. If so, the material would have to be filed publicly. This appears clearly from the reasons for judgment written by Rothstein J.A. as he then was.
[29] At paragraphs 16 and 17 of the Blank case, supra, the learned judge wrote:
Because of the public interest in open court proceedings, filing material in court normally implies that the material will be public. If the Minister chooses to file material pertaining to the investigation by the Information Commissioner, he may do so. But section 35 will not entitle him to have the evidence treated as confidential.
The Minister may elect to file material pertaining to the Information Commissioner’s investigation publicly.
(Emphasis added)
[30] In the context of determining the confidentiality of the revised affidavits, the judge had no jurisdiction to order that material in the hands of the respondent, not submitted for filing, be either filed in the section 41 proceedings or given to the appellant.
Conclusion
[31] As I have attempted to demonstrate, this appeal is without merit. For the reasons given above, I would dismiss the appeal with costs in the amount of $5,000, inclusive of disbursements, payable forthwith to the respondent.
“I agree John M. Evans J.A.”
“I agree J.D. Denis Pelletier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-123-06
STYLE OF CAUSE: SHELDON BLANK v. THE MINISTER OF JUSTICE
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 28, 2007
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
PELLETIER J.A.
APPEARANCES:
SOLICITORS OF RECORD:
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