Evidence of meeting #44 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was reasonable.
A video is available from Parliament.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Thank you, Mr. Chair.
A lot was said just now about solicitor-client privilege. Would I be correct in saying that the Supreme Court ruled in Lavallee that the name and address of a client is generally not covered by solicitor-client privilege?
Acting General Counsel, Policy Sector, Department of Justice
I'm sorry. Could you please repeat the question? I missed part of it.
Liberal
Anthony Housefather Liberal Mount Royal, QC
Would I be correct in saying that the Supreme Court ruled in Lavallee that the name and address of a client is generally not covered by solicitor-client privilege?
For example, as I understand it, it was determined in R v. Budd that the identity of a client is not privileged unless that identity is critical to the essence of solicitor-client communications. Presumptively, the name of a client is not privileged.
Acting General Counsel, Policy Sector, Department of Justice
I think that's contextual, as you said. If the name of the client would reveal some aspect of that, then it may.
Liberal
Anthony Housefather Liberal Mount Royal, QC
It would have to be critical to the essence of solicitor-client communication.
Acting General Counsel, Policy Sector, Department of Justice
It would have to be critical, yes.
Liberal
Anthony Housefather Liberal Mount Royal, QC
In the context of the limited information that could come under such a production order, is that even possible given what can be provided under this type of an order?
Acting General Counsel, Policy Sector, Department of Justice
Not only would I say it's not possible, but in the scenarios that we've talked about it would be, I think, impossible for police to determine from the outset whether or not it's going to involve that unless they were actually targeting a lawyer's office. Then there are lots of protections in the criminal law for that.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Thank you, Mr. Chair.
I was hoping Mr. Housefather would continue for a few more moments so I could finish the paragraph in Lavallee. One thing that is worth noting is that Lavallee is clear that identity can be. There is a clear statement in that ruling that there are cases where that is germane. It isn't a blanket rule that the name of a client is not privileged. We're talking about things that can be here. I think when we're drafting legislation, when we're giving the government new powers, we have to think of edge cases. We have to think of areas that will push the boundaries because that's what prevents this from being unconstitutional legislation or constitutional legislation in a lot of cases. We've certainly had at other committees discussions about the Supreme Court's own usage of hypotheticals to push those boundaries, even without a fact scenario requiring it.
I just want to return—and Mr. Mantle started off down this road—to this duplication.
Mr. Wong, you seem to say, and I do not want to put words in your mouth so please tell me if this is not the case, that if the existing “for greater certainty” clause in clause 31.... This is under “Confirmation of Service Demand and Judicial Control”. Just for certainty of what I'm talking about, it says:
For greater certainty, a demand must not be made if the confirmation would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.
That was in Bill C-22. Now we have Madame DeBellefeuille's amendment, which would insert in clause 6, “(5) An order must not be made if executing it would disclose medical information or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries.”
The substantive part of it is identically worded. The difference is that where it appears in Bill C-22, it talks about “For greater certainty”.
Do I understand your earlier point, Mr. Wong, correctly that, in your opinion, if that clause in Bill C-22 were not there, it would make no difference at all and the bill would be exactly the same?
Acting General Counsel, Policy Sector, Department of Justice
Arguably, I think it would be the same without it because the confirmation of service demand now is limited only to telecommunications service providers. I'm not aware of any lawyer's office or doctor's office that runs its own telecommunications service. They're the only ones who can be served with a confirmation of service demand.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Why did the government direct the department to put that in the bill then?
Acting General Counsel, Policy Sector, Department of Justice
I guess as a belt-and-suspenders sort of thing since there was such a public concern that this information might be disclosed. It's highly unlikely in the current drafting of the bill because of the limited scope of the confirmation of service demand, but there might be instances where there is a telco that knows for certain that what they're going to reveal.... I think Sergeant Gilkes has talked about IP addresses being sold to other providers and then their services being sold. It might end up being an online health sort of telco that might fall under the definition. That would preclude the confirmation of service demand being issued against them.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
Thank you.
Mr. Chair, I don't have a full agenda of the names of the witnesses. Am I understanding correctly that the Liberal government has not made the Privacy Commissioner available to this committee as we engage in this work for clause-by-clause?
Liberal
The Chair Liberal Jean-Yves Duclos
My understanding is that the Privacy Commissioner did come as a witness several weeks ago. You may not have been present, but he was here. Ms. Kirkland can testify to that.
Conservative
Andrew Lawton Conservative Elgin—St. Thomas—London South, ON
The Privacy Commissioner was not here for clause-by-clause. The reason it's important is that the Privacy Commissioner was the—
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
I have a point of order, Mr. Chair.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Mr. Chair, you said he appeared as a witness, which is true. However, I don't know if you recall, but he was referring to the tabling of his brief, and we didn't have it in front of us. Was that the brief that did not get distributed?
Was that the time when we didn't have his recommendations in front of us, and he was speaking as if we were discussing the matter with full knowledge?
I'm confused. I may be mixing him up with another witness.
Could you confirm whether, at the time he testified, we did not have the brief and that it had not been sent by the clerk? Was it in relation to that brief that the clerk apologized?
I would appreciate it if you could clarify that for me.
Liberal
The Chair Liberal Jean-Yves Duclos
I would have to consult the minutes of the meetings. However, I recall that all the briefs were submitted and translated, except for one or two, which were sent out just a few days ago. All the others have now been available for some time.
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Mr. Chair, I just want to finish my remarks.
You said he came to testify, which is true. However, we were all surprised not to have his brief translated into both languages, including his recommendations, in front of us. This is an important distinction to make.
I'm not a lawyer or a notary, but I have a good memory. I can tell you that our clerk apologized for that brief. I don't hold it against him. He forgot to send it to us so that we could have it in front of us to question the commissioner. This is an important distinction, and I would like Mr. Lawton to know that. He wasn't there, but I remember it very well.
Liberal
The Chair Liberal Jean-Yves Duclos
Okay. If your brief is much more accurate than mine, then that's good news.
Mrs. DeBellefeuille confirms that this is indeed what happened. We could check with the clerk, but I think we can take him at his word.
Ms. Dandurand, the floor is yours.
Liberal
Marianne Dandurand Liberal Compton—Stanstead, QC
Mr. Chair, I have a point of clarification.
I generally take the word of Mrs. DeBellefeuille, who has an exceptional memory and knows just about all the details.
As I recall, it was the Barreau du Québec. If I'm not mistaken, the commissioner came to testify at the end of May, and we had had his brief for a few weeks already.