The Supreme Court has been very clear in successive decisions about the need to protect solicitor-client privilege, and that any government wishing to abrogate it, set it aside or infringe must demonstrate a clear and unambiguous legislative intent to do so.
The CBA makes that point in a letter to the P.E.I. Department of Justice, responding on behalf of CBA-PEI and the CBA Ethics Subcommittee to consultation documents released by the province as part of its effort to modernize its Freedom of Information and Protection of Privacy Act. The CBA was responding in particular to questions about solicitor-client privilege in the context of access to information and privacy legislation.
The CBA, which has appeared at the Supreme Court of Canada several appeals on solicitor-client privilege over the last 20 years, made the same argument in response to a similar initiative by the federal government.
In both cases, the CBA holds that the respective privacy commissioners should not be granted access under the Act to materials protected by solicitor-client privilege.
Solicitor-client privilege cannot simply be claimed, and have the matter end there, the CBA notes. While the head of a government institution has the discretion to disclose privileged information, the use of that discretion must be weighed against factors including the public interest. Privilege must be claimed document by document, and details must be given to support that claim.
“In a litigation context, solicitor-client privilege is usually established by supplying an affidavit identifying the date, nature of the document, author and recipient,” the letter says. “It is extremely rare for a judge to review the documents over which privilege is claimed in order to assess whether privilege applies.”
Judges are independent and impartial adjudicators, while the Supreme Court decision in University of Calgary establishes that information and privacy commissioners are not:
… (I)t is noteworthy that the Commissioner is not an impartial adjudicator of the same nature as a court. FOIPP empowers the Commissioner to exercise both adjudicative and investigatory functions. Unlike a court, the Commissioner can become adverse in interest to a public body.
Compelling parties to disclose documents containing privileged information to the Commissioner, even for the purpose of verifying the claim of privilege, is “a serious intrusion on solicitor-client privilege. Compelled disclosure to a potential adversary is all the more serious.”
The University of Calgary decision allowed that legislation can pierce solicitor-client privilege, however, the statutory language must be clear and unambiguous; in addition, the legislation must “satisfy scrutiny that it is absolutely essential to achieve the purposes of the legislation, typically described as a measure of last resort,” the CBA says. “The approach taken must minimize the impairment or harm to the substantive right; safeguards are required.”
Solicitor-client privilege is an essential facet of the way the Canadian justice system works because it allows clients to speak freely with their advocates. Without it, clients might avoid seeking necessary legal advice, or limit the information they provide, which could diminish the quality of the advice they receive. Worse, particularly in the case of a governmental institution, it could result in advice being sought and received but not documented.
“In our opinion, the policy question to be addressed is not, ‘what statutory language will provide the Commissioner with this authority’,” the CBA concludes. “Rather, the question to ask is whether this is absolutely necessary for the functioning of the FOIPP Act. We believe it is not.”