Information & Ethics Committee on June 19th, 2006

[David Tilson, Conservative, Dufferin—Caledon, ON]

Do I have time?

[The Chair, Liberal, Tom Wappel]

Yes.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Commissioner, the issue that was discussed--and I don't believe you were here when it was discussed with the minister--was with respect to the part about privilege in section 23 and the concerns.... In fact, I'm just going to repeat what I said then.

I don't profess to know that much about solicitor-client privilege, other than the fact, as I think I said before, that it was my understanding that any lawyer could say, “Oh, that's solicitor-client privilege.” Anybody could say that. Normally, from my experience--which is limited, I'll admit--that's decided by a judge. So with this particular section--the proposed amended section with which the minister had expressed some concerns, the head of government, it seems, from my reading of it, decides whether or not he or she can say there's solicitor-client privilege. I suppose the person objecting to that could then appeal to the Information Commissioner. So ultimately the Information Commissioner would decide whether there was solicitor-client privilege.

I could be wrong in my interpretation of it. That's the first question.

The second question is--and we briefly discussed this a few moments ago. I don't know what “injurious to the interests of the Crown” means. So I have two questions.

[John Reid]

Let me answer the first. Since the information Commissioner has no power to release information, the decision as to whether it will be released or not will rest with the courts, not with the Information Commissioner.

I'm going to ask Mr. Leadbeater to answer the second part.

[J. Alan Leadbeater]

Just to finish the first part, too, as it stands now under the act, the Information Commissioner, on complaint, does see the documents alleged to be subject to solicitor-client privilege and makes a recommendation. Then, if it's not followed, it goes to the court.

[David Tilson, Conservative, Dufferin—Caledon, ON]

So as you would understand the process, if someone is objecting to a comment that it's solicitor-client privilege, they would make those objections to the commissioner, and in turn, if they didn't like what the commissioner said, they could take it to the courts?

[J. Alan Leadbeater]

Exactly, and the court would review the documents and decide, is it or is it not protected by solicitor-client privilege?

[The Chair, Liberal, Tom Wappel]

I'm sorry, did I cut you off in the middle of a sentence?

[David Tilson, Conservative, Dufferin—Caledon, ON]

He was going to tell me what these words mean.

[J. Alan Leadbeater]

As the national archivist will tell you, there is no document that is always sensitive at all times and in all circumstances, including solicitor-client privilege.

I had a discussion with him about this, and he was talking about how he went to the Law Society of Upper Canada and worked out an agreement with them that documentation that's covered by solicitor-client privilege would no longer need to be protected from public disclosure by the archives after x number of years, the argument being that even solicitor-client privilege loses sensitivity after the passage of time.

We have in the Government of Canada, for example, 50- or 100-year-old legal opinions paid for by the taxpayer, and at some point they can be released because there would be no injury from releasing, and that's the part two. If there's injury because there's ongoing litigation or the matter is still in dispute, and so forth, those are injuries that can be demonstrated to the Crown's interest. The point of part two is trying to have a mechanism where the old legal opinions that are dated and stale can come into the public domain.

[David Tilson, Conservative, Dufferin—Caledon, ON]

I look forward to debating that with you further.

[The Chair, Liberal, Tom Wappel]

Thank you.

[John Reid]

Mr. Chairman, we had an example of this, and the questioner, Mr. Tilson, was involved in that. That was the special committee that was set up to look at whether or not the censuses should be released. They were given all the legal opinions that the Department of Justice had developed over 50 years for their review, and they published them all. The interesting thing, from the point of view of lawyers who hold tight to the solicitor-client privilege, is that (a) the world did not end, and (b) it turned out to be very useful to the committee. So there's a lot of very useful historical material there that I feel, as one who is trained as a historian, could be released because it has no import in terms of what happens now.

[J. Alan Leadbeater]

The minister made the comment that it would make lawyers less candid and less forthcoming, but every lawyer writes a legal opinion on the belief that it could be public, because the privilege is in the client, not the lawyer.

[The Chair, Liberal, Tom Wappel]

Thank you.

As a supplementary on that point, Commissioner, you said that all of your recommendations in the good governance act are based on sections in other jurisdictions. What jurisdictions have your proposed section 23?

[John Reid]

Which one is that?

[The Chair, Liberal, Tom Wappel]

That's the solicitor-client privilege. Is there any jurisdiction currently that has that one?

[John Reid]

Actually, that is the practice in Ontario, de facto with the Law Society of Upper Canada.

[The Chair, Liberal, Tom Wappel]

But is it in any jurisdictional legislation?

[John Reid]

No, it actually applies to the Ontario archives, but it's not in their act.

[The Chair, Liberal, Tom Wappel]

All right. Are there any other sections of your proposed act that do not have some other jurisdiction that has those sections? I believe that's what you said, Commissioner, in your opening remarks, that they all--

[John Reid]

That's what I said.

[J. Alan Leadbeater]

I'm not sure about precise wording, Chairman.

[The Chair, Liberal, Tom Wappel]

Of course, the general intent--

[J. Alan Leadbeater]

I think in the commentary that we put with each section, we tried to indicate where we drew them from.