The Federal Court of Appeal overturned a lower court decision in respect of access to a legal advice memorandum commissioned by the Canadian government regarding a series of Access to Information Requests. Solicitor-client privilege was held to apply to prevent the Commissioner from accessing the memo.

Administrative law – Freedom of information and protection of privacy – Disclosure – Access to information – Production of records – Prime Minister’s Office – Legal memorandum – Solicitor-client privilege – Judicial review – Compliance with legislation – Standard of review – Correctness

Canada (Attorney General) v. Canada (Information Commissioner), [2005] F.C.J. No. 926, Federal Court of Appeal, May 27, 2005, Desjardins, Noël and Malone JJ.A.

A series of requests were made under the Access to Information Act (the “Act”) for copies of the Prime Minister’s daily agenda books from 1994 to June 1999. The Privy Council Office obtained legal advice in the form of a memorandum regarding the requests.

The requester was advised that some of the requested records didn’t exist under the control of the Privy Council Office. In respect of one of the requests, the records were exempt from release as a result of the provisions of subsection 19(1) of the Act (exemption for personal information).

The requester complained to the Information Commissioner of Canada (the “Commissioner”) that all of the records requested were not provided. The Commissioner then conducted an investigation and issued a subpoena. The PCO released a number of records pursuant to the subpoena but refused to produce the legal advice memorandum, claiming solicitor-client privilege on behalf of the government of Canada.

Solicitor-client privilege is expressly provided under the Act in section 23 which reads:

The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.

A judge of the Federal Court dismissed the requester’s application for judicial review. The Federal Court judge held that the Commissioner’s delegate had jurisdiction to compel the production of the memorandum.

The issue on the appeal was whether the Applications Judge erred in failing to interpret subsection 36(2) of the Act restrictively, so as to allow the Commissioner access to the legal advice memorandum. Subsection 36(2) of the Act reads:

Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

 A correctness standard of review was used by the Applications Judge. The Federal Court of Appeal agreed that this was the proper standard.

 The question on this appeal concerned the interface between subsection 36(2) and a claim of solicitor-client privilege circumstances where the dispute concerns records other than those requested under the Act but which the Commissioner considers relevant to his investigation.

The Court held that solicitor-client privilege is fundamental to the Canadian legal system and is something more than a rule of evidence. Rather, it is a fundamental and substantive rule of law which commands a “unique status within the legal system, integral to the workings of the legal system itself”. This privilege is therefore very close to absolute and is, in the words of the Supreme Court of Canada from Pritchard v. Ontario (Human Rights Commission) [2004] 1 S.C.R. 809 at paragraph 17, “jealously guarded”.

On the other hand, subsection 36(2) of the enabling legislation gives the Commissioner the authority to do something that could interfere with solicitor-client confidentiality. The Appellants did not dispute the Commissioner’s ability to compel disclosure of records requested under the Act despite any claim of privilege, but they argued that beyond that, the section should be interpreted restrictively to preserve solicitor-client privilege wherever possible.

The Court held that interpreting the powers of the Act to permit any disclosure of the confidential legal advice memorandum interfered with solicitor-client privilege in a manner unnecessary for the achievement of the enabling legislation’s purpose. The legal advice memorandum was specifically prepared to provide legal advice relating to the access to information requests. It was therefore not the type of record relevant to the question of whether the requested records existed. There is a strong expectation of confidentiality with respect to this sort of legal advice memorandum which remains despite the powers in subsection 36(2). Parliament did not intend that the government would be without the benefit of confidential legal advice in deciding how to properly respond to an information request.

The appeal was allowed with the finding that although the Commissioner had the authority to compel the disclosure of records requested under the Act and other relevant records, he was not entitled to the production of the memorandum created in order to provide legal advice to the PCO in response to the access to information request.

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