BETWEEN:
and
Heard at Winnipeg, Manitoba, on February 26, 2007.
Judgment delivered at Winnipeg, Manitoba, on March 1, 2007.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
PELLETIER J.A.
Docket: A-563-05
Citation: 2007 FCA 87
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF JUSTICE
Appellant
and
SHELDON BLANK
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal by the Minister of Justice from a decision of a Judge of the Federal Court concerning the extent of the Minister’s duty to disclose parts of documents containing communications covered by the privilege afforded to legal advice. The Minister had refused to disclose these documents in response to a request by Sheldon Blank under the Access to Information Act, R.S.C. 1985, c. A-1 (“Access Act”). The Judge’s decision is reported as Blank v. Canada (Minister of Justice), 2005 FC 1551.
[2] Section 23 of the Access Act empowers the head of a government institution to refuse to disclose a record which contains information which is subject to solicitor-client privilege. However, like other exemptions from the general duty under the Access Act to disclose records held by the government, a record exempted from disclosure by section 23 is subject to section 25. This provision imposes a duty to sever portions of documents which do not contain the information for which an exemption is claimed and which can reasonably be severed without disclosing the exempt information.
[3] The question to be decided on this appeal is whether the Judge erred in law when he held that the Minister’s statutory duty to sever extends not only what has been called a privileged communication’s “general identifying information”, but also to the body of the communication itself. There are now only three documents in this category which remain in dispute in this appeal.
[4] The Minister says that the Applications Judge went too far, and relies on recent decisions from the Supreme Court of Canada affirming the fundamental importance to the administration of justice of the confidentiality of solicitor-client legal advice communications, including those within government, and the nearly absolute nature of the privilege which protects them.
[5] Mr Blank, on the other hand, emphasizes the importance of the statutory right of individuals to access records held by government, a right which is essential to ensure governmental accountability and integrity. Accordingly, he says, statutory exceptions to the general duty to disclose should be read narrowly, especially when Parliament has expressly required severance when reasonable. He also supports his position by reference to recent decisions of the Supreme Court of Canada on the disclosure under the Access Act of documents for which legal privilege is claimed.
[6] In my opinion, the Applications Judge misunderstood the scope of the duty to sever established by this Court in a previous stage of the litigation saga between the present parties: Blank v. Canada (Minister of the Environment), 2001 FCA 374, 281 N.R. 388 (“Blank 2001”). I would allow the Minister’s appeal with respect to the three disputed documents.
[7] Section 25 of the Act does not require the severance from a record of material which forms part of a privileged solicitor-client communication. When considering whether disclosure has been wrongly refused, a Judge should not approach a record containing a privileged solicitor-client communication by asking whether disclosure of parts of the communication would cause harm. Such an approach would undermine a client’s confidence that communications made for the purpose of requesting or giving legal advice are not subject to disclosure without the client’s consent, and would deter the frankness required in this context.
[8] Mr Blank has cross-appealed, arguing principally that the Judge failed to include in the list of documents for which further disclosure was required some documents which counsel for the Minister had already disclosed to him. After reviewing the documents, counsel for the Minister agreed with Mr Blank with respect to some of these. To that extent, I would allow Mr Blank’s cross-appeal.
[9] In addition, Mr Blank argued that the Minister had waived the solicitor-client privilege recognized in section 23 with respect to two other documents. In an affidavit, Mr Blank stated that, although he did not have a copy of the documents in question, documents 98 and 99 (or pp. 2651-2652 in the confidential Appeal Book), counsel for the Minister had shown them to him, and he had made detailed notes of their content. Counsel said that he did not remember having shown this document to Mr Blank.
[10] A comparison of Mr Blank’s notes and the documents in question shows that the notes contain detailed information and phrases which could only have come from a perusal of the documents themselves. I conclude that Mr Blank has in fact seen the documents and, in light of the inability of counsel for the Minister to contradict Mr Blank’s affidavit, I conclude that these documents should be disclosed.
[11] I set out below the sections of the Access Act most material to this appeal.
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23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. |
23. Le responsable d’une institution fédérale peut refuser la communication de documents contenant des renseignements protégés par le secret professionnel qui lie un avocat à son client.
25. Le responsable d’une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s’autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d’en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. |
[12] At the outset, I would make two points about the application of these provisions to the present appeal. First, the Applications Judge proceeded on the basis (at para. 15) that the documents in question were properly the subject of solicitor-client privilege under section 23, as had been previously determined by another Judge of the Federal Court: Blank v. Canada (Department of Justice), 2003 FCT 462. They do not contain extraneous matter, such as policy advice or personal topics.
[13] Second, it is well established that section 25 applies to records falling within section 23: see, for example, Blank v. Canada (Minister of Justice), 2004 FCA 287, [2005] 1 F.C.R. 403 at para. 66 (“Blank 2004”). However, section 25 must be applied to solicitor-client communications in a manner that recognizes the full extent of the privilege. It is not Parliament’s intention to require the severance of material that forms a part of the privileged communication by, for example, requiring the disclosure of material that would reveal the precise subject of the communication or the factual assumptions of the legal advice given or sought.
[14] Much of the background to the ongoing struggle between Mr Blank and the Minister over the disclosure of documents has been fully and ably explained in earlier decisions of both the Federal Court and this Court. Suffice it to say here that, since 1997, Mr Blank has sought disclosure of the Minister’s file relating to the unsuccessful prosecution of Mr Blank and his company for pollution and reporting offences under the Fisheries Act, R.S.C. 1985, c. F-14, and the Pulp and Paper Effluent Regulations, SOR/92-269.
[15] As a result of Mr Blank’s dogged attempts to obtain further disclosure, the Minister has, over the years, dribbled out additional records. Mr Blank has made his access requests in furtherance of an action for damages that he has brought against the federal Crown as a result of its efforts to prosecute him. His statement of claim alleges among other things, conspiracy, fraud and malicious prosecution.
[16] As for the judicial history of the present appeal, the decision of the Applications Judge was rendered following a reference to the Federal Court by this Court for a determination of whether portions of the documents requested under the Access Act had been severed in compliance with section 25: Blank 2004 at para. 67. Writing for the Court on the information that could be severed, Létourneau J.A said (at para. 66):
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".
[17] These words were taken, in part, from the reasons of Sharlow J.A. in Blank 2001, which dealt with claims for legal advice privilege and the duty to sever in the context of the Access Act. The pertinent paragraphs in her reasons are as follows:
[20] Counsel for the appellant pointed out that not all communications between solicitor and client are privileged and that, especially in the case of lawyers employed by government, advice sought or given may sometimes relate to matters of policy rather than law. While that is true in theory, in this case I was unable to identify any advice sought or given that could not properly be characterized as legal advice.
[21] For all of the documents in issue in this case that represent solicitor-client communications, the Judge could properly have allowed the claim of privilege for the entire document. He did so in most instances while in others he required disclosure of part of the document.
[22] The instances in which partial disclosure was ordered fall into two categories. In one category, disclosure was ordered of certain statements in the communication that were purely factual. It is arguable that those factual statements should not have been ordered disclosed because in each case they are inextricably linked to the legal issue under discussion that they ought to be treated as part of the privileged communication. To that extent, there may have been over-disclosure of some privileged documents. However, as the Minister has not cross-appealed, the order of the Judge will not be varied on that account.
[23] In the second category are letters and memoranda in which disclosure was ordered of the part of the document showing what I would characterize as general identifying information: the description of the document (for example, the "memorandum" heading and internal file identification), the name, title and address of the person to whom the communication was directed, the subject line, the generally innocuous opening words and closing words of the communication, and the signature block. The partial disclosures in this category enable the appellants to know that a communication occurred between certain persons at a certain time on a certain subject, but no more.
[24] There may be instances in which such general identifying information might be subject to solicitor-client privilege. However, the Minister has provided no evidence upon which I can conclude that this is such a case. Strictly speaking, therefore, the Judge could and should have ordered the disclosure of general identifying information for every letter or memorandum containing a privileged communication. As a practical matter, however, the most important identifying information is already found in the list of particulars. Varying the order of the Judge to require further disclosure of identifying information is not necessary at this stage and I would decline to do so.
Emphases added throughout]
[18] I would make three observations about the scope of the duty to sever as defined in the above paragraphs. First, Sharlow J.A. suggests in paragraph 22 that the Judge whose decision was under appeal in that case may have erred in severing factual statements from the privileged solicitor-client communications, “because in each case they are inextricably linked to the legal issue under decision that they ought to be treated as part of the privileged communication.”
[19] She did not have to decide this issue since the Minister had not cross-appealed. Nonetheless, I infer from this passage that Sharlow J.A. was of the view that section 25 does not permit the severance of factual material that is “part of the privileged communication”.
[20] Second, having listed as “general identifying information” (at para. 23) the kinds of items which could be disclosed, Sharlow J.A. noted (at para. 24) that there could be instances where they were subject to solicitor-client privilege and, presumably, not subject to severance. For example, a heading may reveal the very subject-matter of the privileged communication.
[21] Third, Sharlow J.A. included in her list of “general identifying information” (at para. 23), “the generally innocuous opening words and closing words of the communication.” It is not clear to me to what this refers. The adjective “innocuous” could be interpreted as requiring an examination of the body of a privileged communication to determine if disclosure of particular sentences would be harmful.
[22] In my view, however, a reading of Sharlow J.A.’s discussion as a whole (including her statement in para. 20 that policy advice by a lawyer in a letter also giving legal advice may not be within solicitor-client privilege) indicates that, in her view, the proper test is whether the information is part of the privileged communication. If it is, then section 25 does not require that it be severed from the balance of the privileged communication.
[23] This kind of broad approach to the scope of solicitor-client “advice” privilege is consistent with cases decided after Blank 2001. In particular, in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, the Court held that the privilege applied to communications between a client public authority and an in-house government lawyer seeking or giving advice. Writing for the Court, Major J. noted (at para. 17) that the “privilege is fundamental to the justice system in Canada”, and “is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful conviction.”
[24] In similar vein, Rothstein J., writing for the Court in Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R 32, an access to information case, stated (at para. 15) that it is “incumbent on a judge to apply the “absolutely necessary “ test when deciding an application for disclosure” of solicitor-client communications.
[25] On the basis of the above case law, and my examination of the documents in dispute, I am of the view that the Applications Judge erred in ordering the disclosure of the opening paragraph of the document at pp. 2567-2568, the first paragraph on p. 2592, and the first sentence on p. 2818.
[26] Mr Blank argued that, in dismissing his appeal from the decision of this Court in Blank 2004, the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319 (“Blank 2006”), indicated a broader scope for the disclosure of privileged documents sought under the Access Act. The principal issue in Blank 2006 concerned litigation privilege and, in particular, whether it expired on the termination of the proceedings which gave rise to the privilege.
[27] Mr Blank relied on two statements by Fish J. and Bastarache and Charron JJ. as supportive of his position that, given the importance of the duty to disclose under the Access Act, any part of a privileged solicitor-client communication, save for the advice itself, should be disclosed unless this would be harmful to the public interest.
[28] Writing for the majority in Blank 2006, Fish J. noted (at para. 52) that the language of section 23 is permissive:
It provides that the Minister may invoke the privilege. This permissive language promotes disclosure by encouraging the Minister to refrain from invoking the privilege unless it is thought necessary to do so in the public interest, and it thus supports an interpretation that favours more government disclosure, not less.
In my opinion, this paragraph does not materially assist Mr Blank in the present appeal.
[29] First, as I have already indicated, Blank 2006 dealt with whether litigation privilege falls within section 23 and, if it does, whether it expires on the termination of the litigation to which the documents relate. Fish J. was at pains to emphasize throughout his reasons that legal advice privilege and litigation privilege are “distinct conceptual animals” (at para. 7), which “are driven by different policy considerations and generate different legal consequences” (at para. 33). Fish J. links the permissive nature of section 23 to his conclusion that Parliament did not intend to extend the lifespan of litigation privilege. It would be a mistake to attribute much significance to this paragraph as far as claims for legal advice privilege are concerned.
[30] Second, the permissive nature of section 23 reflects the fact that solicitor-client privilege may be waived by or on behalf of the client. It can be assumed that, by asserting solicitor-client privilege in this case, it has been decided that waiver would not be in the public interest. There is nothing in the record before us to establish that the Minister failed to consider waiving the privilege, or that his consideration was vitiated by bad faith, as Mr Blank alleges, or was otherwise unlawful: compare Blank 2004 at paras. 61-62. I cannot read into para. 52 of Fish J.’s reasons a legal duty on the Minister to expressly explain why the privilege is not being waived.
[31] Mr Blank also drew our attention to the separate concurring reasons in Blank 2006 of Bastarache and Charron JJ. which were delivered by Bastarache J. In particular, he pointed to a statement (at para. 68) to the effect that the Access Act infringes legal privilege by mandating the disclosure of certain information and should be read restrictively.
[32] However, this statement must be read together with Bastarache J.’s conclusion (at para. 69) that section 23 should be interpreted as exempting both legal advice and litigation privilege from the general statutory duty to disclose. The Access Act thus does not reduce the protection afforded by the common law to legal privilege. I do not find anything here to assist Mr Blank.
[33] As for Mr Blank’s cross-appeal, I have already indicated that certain documents have been given to Mr Blank and should now be added to the Applications Judge’s Schedule “A” as requiring further disclosure. In addition, I accept that counsel for the Minister showed Mr Blank the documents described in his affidavit and that they, too, should be included in Schedule “A”.
[34] However, I do not accept Mr Blank’s assertion that the fact that he has acquired knowledge of certain facts warrants severing any mention of those facts from the legal advice. The facts on which legal advice is given or sought remain part of the privileged solicitor-client communication until waived by an authorized person.
[35] Since I am not persuaded that the Applications Judge committed reviewable errors in other respects, I would dismiss Mr Blank’s cross-appeal, except to the extent indicated in paragraph 33 of these reasons.
[36] For these reasons, I would allow the Minister’s appeal in part, in so far as it relates to the three remaining documents, and amend accordingly Schedule “B” attached to the Order of the Applications Judge. I would allow Mr Blank’s cross-appeal in part and amend Schedule “A” accordingly. Since success has been divided, I would award no costs.
"John M. Evans"
I agree
Gilles Létourneau J.A.
I agree
J.D. Denis Pelletier J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-563-05
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED NOVEMBER 17, 2005, DOCKET NO. T-2073-00)
STYLE OF CAUSE: THE MINISTER OF JUSTICE v. SHELDON BLANK
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 26, 2007
REASONS FOR JUDGMENT BY: EVANS J.
CONCURRED IN BY: LÉTOURNEAU J.A.
APPEARANCES:
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Department of Justice Ottawa, ON
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada
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FOR THE APPELLANT
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Sheldon Blank, on his own behalf Winnipeg, MB |
FOR THE RESPONDENT
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