The legal profession will have to step up the pressure to protect solicitor-client privilege, based on the latest communication from the federal Justice Minister.
Seven months after meeting with a delegation that included officials from the Federation of Law Societies of Canada and the CBA, and six months after receiving a submission from the CBA on Bill C-58. Justice Minister Jody Wilson-Raybould has written to President Kerry Simmons, Q.C., to politely disagree with the CBA’s position on solicitor-client privilege.
Clauses 15 and 50 in the proposed amendments to the Access to Information Act and the Privacy Act would give Information and Privacy Commissioners unfettered access to records that are withheld by the head of a government institution on the basis that they are protected by solicitor-client privilege, professional secrecy or litigation privilege.
The CBA’s argument, set out in a submission sent to the Justice Minister in December and again to the Senate in May, challenges these amendments, saying they simply add solicitor-client privilege to the existing language of the Act without 1) acknowledging the status of privilege as a highly protected substantive right and principle of fundamental justice; 2) supporting the absolute necessity of allowing the Commissioner to review privileged records; or 3) providing adequate safeguards to ensure that privileged records are not disclosed in a manner that compromises the substantive right.
The submission cites Supreme Court decisions that set out the requirement for “clear, unambiguous” legislation to set aside privilege, and argues that the proposed legislation fails to meet this standard.
“We’re disappointed with the Minister’s response to our submission, but this issue is too important to let it be the last word,” says the CBA President. “We’re writing to try to persuade her government that they need to take another look at the proposed legislation to bring it more into line with established jurisprudence, and to consider more deeply the serious repercussions the bill could have if passed.”
Among other things, giving Information and Privacy Commissioners this kind of power to breach privilege could have a chilling effect on solicitor-client consultations, or lead to improper record-keeping. As well, the CBA argues that, unlike judges, Information and Privacy Commissioners are not neutral arbiters because they could end up in court against parties whose privileged communications they were able to review.