Thank you.
The discussion of solicitor–client privilege in this PIPEDA context was focused very recently by the Federal Court of Appeal decision in Blood Tribe, which was given in October 2006. You'll find it at tab 8 of our material. I know this is a heavy booklet, but we thought it would be convenient to have everything in one place. I'm sure you've heard a lot about Blood Tribe up to now. We have been following these hearings, and we wanted to make some comments on some of the things that have been said, because solicitor–client privilege is so important.
This case, the Blood Tribe case, is really about the scope of power of the Privacy Commissioner and the manner in which that power is exercised. It's a case about considering what the statute allows explicitly and the limits of discretionary interpretation. To analyze these fundamental principles, we must consider the intent of Parliament in enacting PIPEDA. I'm going to direct you to page 2 of our written submission at the front of the booklet where it's set out, where we talk about the balance and the purpose of the statute, and you can read it at your leisure.
When Parliament intends to legislate an ombudsman-type adjudicative structure, as in PIPEDA, then I submit that's what Parliament does. When Parliament intends to grant more expansive powers, such as those we might find in an administrative tribunal with rule-making powers, then that's what Parliament does. When Parliament intends to require that material protected by solicitor–client privilege be disclosed, then that's what Parliament does. Parliament did not do this in PIPEDA, and we must presume that this was not a matter of inadvertence or an oversight. Parliament did not intend that the Privacy Commissioner should have the power to compel the production of solicitor–client privileged documents.
I take you to tab 8 of the booklet now. Writing for the bench in the Federal Court of Appeal decision in Blood Tribe, Mr. Justice Malone states—