Bill C-58: Privilege is more than a privilege

  • June 04, 2018

In the seven months since the CBA last commented on Bill C-58, a number of changes have been made to the proposed legislation.

But some of the most contentious issues addressed in our last submission, made when the bill was still being studied in the House, remain.

As the bill makes its way to Senate committee hearings, the CBA has updated its submission to reiterate its recommendations for amendments in three key areas:

  1. Access rights: the scope should be broadened to include organizations that support Parliament (subject to Parliamentary privilege); administrative barriers imposed in this bill should be removed; fees should be eliminated, and if that’s not possible, criteria for waiving fees should be adopted; and the mandatory five-year review should be carried out by Parliamentary committee.
  2. Solicitor-client privilege: The CBA has significant concerns with clauses in Bill C-58 that would allow Information and Privacy Commissioners to review records withheld by the head of a government institution on the basis of solicitor-client privilege, professional secrecy or litigation privilege. “There is no requirement that the person who holds the office of Information or Privacy Commissioner have particular expertise on solicitor-client privilege,” the CBA says. “Further, unlike the courts, the Commissioners are not impartial adjudicators” – in fact, they can become “adverse in interest to a public body” when appearing in court on their own behalf or on behalf of a complainant. The CBA says the bill should be amended to say that assessments of disputed privilege claims should be made by the judiciary.
  3. Judicial independence: While the CBA supports the idea of proactive publication when it applies to Parliamentary entities and government institutions, it has grave concerns about applying those requirements to the judiciary and the courts, as the result could be an erosion of judicial independence and individual judges could be put at risk if information about their travel details enters the public domain. “In brief, a delicately balanced system designed to reconcile judicial independence with accountability for the expenditure of public funds is already in place, Bill C-58 will disrupt the system.” If this requirement remains, the CBA suggests the information be published in aggregate, by court, by the Commissioner of Federal Judicial Affairs.

“The CBA appreciates and supports the federal government’s intent to foster a robust open government environment,” the CBA says. “However, the measures in Bill C-58 respecting solicitor-client privilege will undermine these efforts. We believe the measures are unnecessary, will impair the functioning of government institutions, and will have a negative spillover effect on privilege in other contexts.”


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