CBA on Bill C-58, Access to Information Act and Privacy Act amendments

  • May 28, 2018

The CBA released a submission on Bill C-58 in advance of Senate committee hearings. The submission identifies three distinct areas of concern – access rights, judicial independence, and solicitor-client privilege.  On access rights, the CBA welcomes expanding the scope of the legislation, but comments that the imposition of the administrative requirements are not necessary for the functioning of ATIA and will deter people from making requests, undermining the very purpose of the legislation. The CBA is also concerned that the Bill reverses the Treasury Board of Canada’s interim decision not to impose application fees.

On judicial independence, the CBA has concerns about the application of the proactive publication requirements to the judiciary, which under Canada’s constitution is a separate branch of government. The CBA shares the views of the Canadian Superior Court Judges Association that provisions in the Bill leaving decisions about judicial independence exemptions in the hands of the executive branch are unconstitutional.

Last, but not least, the CBA is deeply concerned about provisions in the Bill touching on solicitor-client privilege. The CBA believes the provisions will have a chilling effect in seeking legal advice, with adverse consequences for the proper functioning of government. Further, the CBA believes the provisions do not meet the standard established by the Supreme Court of Canada for compelling disclosure of privileged records. The CBA recommends that assessments of disputed privilege claims be made by the judiciary, who are the traditional arbiters, rather than the Access to Information and Privacy Commissioners.

The CBA submission was prepared by the CBA’s Privacy and Access Law Section, Ethics Subcommittee, and Judicial Issues Subcommittee with input from the CBA members of the Federal Courts Bench and Bar Committee and the Tax Court Bench and Bar Committee.

Read the submission