Concerns with proposed changes to Access to Information Act

  • November 15, 2017

When quasi-constitutional legislation interferes with a quasi-constitutional right, things are likely to get entirely messy.

The Supreme Court of Canada has characterized access to information legislation as quasi-constitutional in nature. Bill C-58, which contains amendments to the Access to Information Act, has provisions with respect to solicitor-client privilege – the quasi-constitutional right – and the constitutional principle of judicial independence that several CBA groups find troubling.

The Privacy and Access Law Section, along with the Ethics and Professional Responsibility and the Judicial Issues subcommittees, say in their submission that they support the overall intent of modernization. The Act no longer reflects current information and communications technologies and is out of line with citizens’ expectations of transparency in government – and with existing legislation in other jurisdictions.

Solicitor-client privilege is a right afforded equally to individuals and entities, and it is in the public interest to uphold that right.

“The Supreme Court of Canada has stated that solicitor-client privilege can only be set aside by legislation that is clear, explicit and unequivocal, where the need to do so is absolutely necessary, and where there is minimal impairment to this privilege,” the submission says. “The CBA Sections do not believe the amendments proposed in section 15 of Bill c-58 to section 36 (2) of the ATIA meet this constitutional standard. The need for the amendments has not been established.”

There should instead be clear guidance for heads of government institutions who claim the solicitor-client privilege exemption, accompanied by “robust” internal procedures, the submission says, noting that several provincial information commissioners have developed protocols that typically require disclosure of documents with appropriate detail to support the claim of privilege, but not production of the documents themselves.

“The CBA Sections do not support giving the Information Commissioner the power to compel the production of privileged information or to review privileged documents to assess the validity of the claim.” The ATIA allows a for a Federal Court review if the Information Commissioner believes a false claim of privilege has been made, and the Sections support that approach. They also support updating section 23 of the ATIA to include professional secrecy and litigation privilege to reflect the current state of law.

Judicial independence comes into play in the bill’s requirement for proactive publication of information about, among other things, judicial expenses, including travel expenses and allowances. Proactive publication can lead to more open government, making it easier for citizens to scrutinize government behaviour. However, judges should not be equated with the public service or elected officials, because of the unique and distinct constitutional role of the courts.

“One of the three recognized components of judicial independence is administrative independence,” the submission says. The proposed sections “result in an unnecessary intrusion into judicial independence in circumstances where there are already adequate means to strike an appropriate balance between access to information and securing the independence of the courts.” Among other things, “inappropriate characterizations of judicial travel and the use of travel allowances can have a chilling effect on the participation by the courts and their members in a variety of conferences and (public) outreach opportunities.”

Other issues raised in the submission include the frequency of statutory reviews, whether application fees are necessary, the amendment granting order-making power to the Information Commissioner – and whether the Privacy Commissioner should have the same power – and the discretion given to heads of government institutions to decline to act on requests for information.

The Sections also take issue with the proposed requirement for three enumerated kinds of information (specific subject matter, type of record and period of the request) as a threshold to obtain access, which they say would have the effect of limiting citizens’ access rights and undermining government transparency.

With the submission on Bill C-58, CBA Sections are once again taking the government to task for limiting the review of important and potentially complex changes to existing legislation.

The time-limited review of the proposed changes to the out-of-date Access to Information Act is “inadequate to effectively assess the full implications of the bill and strengthen access to information laws. A more inclusive, transparent and extensive consultation process is needed.” 

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