BETWEEN:
(Respondent on Cross-Appeal)
and
(Appellant on Cross-Appeal)
Heard at Winnipeg, Manitoba, on February 26, 2007.
Judgment delivered at Ottawa, Ontario, on April 12, 2007.
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
EVANS J.A.
Docket: A-292-06
Citation: 2007 FCA 147
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF JUSTICE
Appellant
(Respondent on Cross-Appeal)
and
SHELDON BLANK
Respondent
(Appellant on Cross-Appeal)
REASONS FOR JUDGMENT
[1] This is an appeal from a decision of Mr. Justice O'Keefe whose decision is reported as Blank v. Canada (Minister of Justice) 2006 FC 841, [2006] F.C.J. No. 1110. This matter was heard at the same time as Blank v. Canada (Minister of Justice) 2006 FC 1551, [2006] F.C.J. No. 1927, another matter involving Mr. Blank in which many of the same issues were raised. Mr. Blank now has so many cases standing to his credit that a simple reference to the case name provides no useful information. In the balance of these reasons, I shall refer to the various cases involving Mr. Blank by reference to the case's neutral citation series number. Thus the case decided by Mr. Justice O'Keefe will be referred to as Blank 841 while the case which was heard at the same time will be referred to as Blank 1551.
[2] Both Blank 841 and Blank 1551 dealt with the interplay between sections 23 and 25 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Act). Section 23 is a discretionary exemption from disclosure for records in respect of which a claim of solicitor-client privilege is made, while section 25 requires the disclosure of non-exempt material which can be severed from records to which an exemption applies. The issue, broadly speaking, is the extent to which the Court is entitled to sever, and therefore disclose, material which appears in a record for which legal advice privilege is claimed. The specific questions raised were the disclosure of the subject line for documents which include a specific subject line, and other general identifying information.
[3] This Court's decision on appeal from Blank 1551 is reported as Blank v. Canada (Minister of Justice) 2007 FCA 87, [2007] F.C.J. No. 306 (Blank 87). There, Evans J.A. reviewed the principles involved and concluded that subject matter headings which disclosed the subject upon which legal advice was sought were not to be severed and disclosed to the applicant. At the same time, this Court held that information forming part of the privileged communication could not be disclosed under the rubric of general identifying information if that information was in fact part of the privileged communication. In doing so, this Court rejected the notion that privileged communications may be disclosed if their disclosure appears innocuous. I would add that Courts should not strain to surgically excise from a privileged communication sentences which, though of a general nature, are nonetheless part and parcel of that communication.
[4] The task before O'Keefe J. was to apply a legal test to a set of facts. The choice of the test to apply is a question of law which is reviewable on a standard of correctness. Where the judge has chosen the wrong test, this Court is to apply the right test: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8, Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 43.
[5] In this case, O'Keefe J. applied the test for severance articulated by his colleague Mosley J. in Blank 1551. In Blank 87, on appeal from Blank 1551, this Court articulated a different test which led to a different result. As a result, O'Keefe J. applied the wrong test and our intervention is justified.
[6] The applicable principles having been set out in Blank 87, it simply remains for me to apply them to the documents in issue in Blank 841. I have therefore reviewed the documents where severance of some portion of the document has been ordered. In the case of subject matter headings, the judge noted that the same subject heading had been disclosed in some cases and not in others. He adopted a policy of consistency and ordered the disclosure of the headings which had not been disclosed. I take it that his underlying assumption is that any privilege which may have attached to the subject heading was waived by its disclosure in those cases in which it was disclosed. This is an argument as to class waiver, which, as we shall see, was rejected by the Supreme Court of Canada in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 35 (Babcock).
[7] The specific subject matter on which legal advice is sought is a matter of privilege. If a subject heading discloses the subject matter of the legal opinion, it is not to be severed. A reference to a specific legal issue, or to a specific statutory provision, in a subject heading, which discloses the subject matter of the advice sought is not to be severed from the rest of the document. As a result, I would remove from Schedule A to the judge's reasons, the following pages: 7, 10, 13, 14, 98, 121, 124, 135, 155, 156 and 158.
[8] For the reasons set out above, I would also remove from Schedule A those documents where disclosure has been ordered of portions of documents which, though of a general nature, nonetheless form part and parcel of the privileged communication. Under this heading, I would remove the following pages from Schedule A: 26, 142, 144, 146 and 147.
[9] In the end, none of the documents which appear on Schedule A are subject to severance and disclosure. The Minister's appeal should be allowed with costs.
[10] Mr. Blank has cross-appealed on a number of issues, most of which can be dealt with summarily.
[11] Mr. Blank argues that the documents in question here do not come within the exemption in favour of "advice or recommendations developed by or for a government institution or a minister of the Crown" (paragraph 21(1)(a) of the Act), because of the operation of paragraph 21(2)(a) of the Act which provides as follows:
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21.(2) Subsection (1) does not apply in respect of a record that contains
(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or |
21.(2) Le responsable d'une institution fédérale peut refuser la communication de documents datés de moins de vingt ans lors de la demande et contenant :
a) des avis ou recommandations élaborés par ou pour une institution fédérale ou un ministre; |
[12] A review of the documents confirms that none of them comes within that description.
[13] Mr. Blank also argues that waiver of privilege with respect to a certain subject matter is a waiver of privilege with respect to all documents which treat of that subject matter; this is the theory of class waiver. The case relied upon by Mr. Blank in support of this ground of appeal, Babcock, does not support his position:
35. Section 39 protects "information" from disclosure. It may be that some information on a particular matter has been disclosed, while other information on the matter has not been disclosed. The language of s. 39(1) does not permit one to say that disclosure of some information removes s. 39 protection from other, non-disclosed information. If the related information has been disclosed in other documents, then s. 39 does not apply and the documents containing the information must be produced. If the related information is contained in documents that have been properly certified under s. 39, the government is under no obligation to disclose the related information.
[Babcock, at para. 35.]
[Emphasis added.]
[14] While this comment arises in the context of a discussion of section 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5, a very specific disposition, the rule it articulates as to waiver is nonetheless of general application.
[15] Mr. Blank also argues that he is entitled to attachments which were once associated with documents for which an exemption from disclosure is claimed.
[16] This issue has been decided against Mr. Blank twice in the past. In Blank v. Canada (Minister of the Environment) 2001 FCA 374, [2001] F.C.J. 1844, this Court dismissed Mr. Blank's motion for production of attachments and enclosures on the basis that there was no evidence that the record was incomplete: see paragraphs 7 and 8. The Court dealt with the same issue again in Blank v. Canada (Minister of Justice) 2004 FCA 287, [2004] F.C.J. No. 1455. At paragraph 77 of that decision, Létourneau J.A., speaking for the Court, remarked that:
77. However, I would like to re-emphasize that Mr. Blank's right is a right of access to the records as they exist in the hands of the head of a government institution. What he is asking this Court and, previously the motions judge, to do, is in fact to assert a power to order the reconstitution of these records. In the absence of evidence that would give this Court reasonable grounds to believe that the integrity of the records has been tampered with, this Court's power to review is limited to a review of the records that are in evidence before it. No evidence of tampering has been adduced and the motions judge was right to limit his review to the material that was in evidence before him.
[17] Mr. Blank now raises this matter for the third time. His evidence of tampering is the increase in the number of documents which the Minister acknowledges are relevant to the access request. Initially, there were said to be 120 relevant documents. Later there were said to be 156, and then 159. I am not persuaded that this is evidence of tampering. An increase in the number of documents in the file is inconsistent with the theory that the file has been corrupted by the removal of material (i.e. attachments).
[18] Mr. Blank raises another ground of appeal based upon misconduct. He argues that solicitor-client privilege does not shelter communications made for the purpose of committing a crime, or suppressing evidence of a crime: see Canada v. Solosky, [1980] 1 S.C.R. 821. Mr. Blank attempted to persuade the Court that the Minister's claim of privilege is designed to shelter communications which would disclose a course of action amounting to malicious prosecution and perjury. He invited the Court to read the documents in respect of which privilege is claimed and to order their disclosure if they confirmed his allegations.
[19] I have done as Mr. Blank has asked and I have read the documents in issue. I found nothing in them which would support the conclusion that they contain communications in furtherance of a criminal act, or communications for the purpose of suppressing the evidence of such an act. This ground of appeal also fails.
[20] Mr. Blank's final argument is an argument about procedural fairness. When the Minister submitted the documents in issue to the Court as an exhibit to the affidavit of Kerri Clark, he also included as exhibits to that affidavit a number of documents which he sought to avoid disclosing to Mr. Blank (the Confidential Exhibits). The basis for putting the Confidential Exhibits forward is to assist the judge is assessing the Minister's claim of privilege with respect to the disputed documents while the basis for the refusal to disclose the Confidential Exhibits is that they are either privileged documents themselves, or would disclose the contents of the disputed documents.
[21] Mr. Blank acknowledges that he is not entitled to see the disputed documents but claims that the failure of O'Keefe J. to order the disclosure of the Confidential Exhibits resulted in a breach of his right to procedural fairness. This Court has ruled that the judge hearing the motion for leave to file the government's confidential affidavit should dispose of any challenges to Confidential Exhibits to that affidavit (other than that containing the disputed documents): see Blank v. Canada (Minister of Justice) 2005 FCA 405, [2005] F.C.J. No. 2040 (Blank 405), at para. 21. It is significant that Blank 405 was an appeal from the decision permitting the filing of the confidential affidavit.
[22] In this case, Mr. Blank did not appeal from the decision granting leave to file the confidential affidavit. In fact, it appears from a review of the record that Mr. Blank may not have raised the issue of the Confidential Exhibits at the time of the motion to file the confidential affidavit. Counsel for the Crown began his submissions in reply on this issue by advising the Court that:
Mr. Rupar: Well, you will note to start – well first of all, this is a new argument that I have to deal with that Mr. Blank is not – has decided to raise at this point, as opposed to dealing with it properly through written representations, but …
[23] As a result, Mr. Blank is precluded from raising the matter of the Confidential Exhibits at this stage. The matter should have been raised at the time of the motion to file the confidential affidavit and, in the event of an unfavourable decision, an appeal should have been taken. Mr. Blank having failed to raise the matter of the Confidential Exhibits at the appropriate time, O'Keefe J. was entitled to decline to deal with the matter at the hearing of merits of Mr. Blank's application under section 41 of the Act. This ground of appeal also fails.
[24] In the end, I would dismiss the cross-appeal with costs.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-292-06
STYLE OF CAUSE: THE MINISTER OF JUSTICE
v. SHELDON BLANK
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 26, 2007
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
EVANS J.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada Ottawa, Ontario |
FOR THE RESPONDENT
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