What is the scope of confidentiality included in the solicitor-client privilege?
In Canada (Public Safety and Emergency Preparedness) v. Information Commissioner of Canada, 2013 FCA 104, the Federal Court of Appeal provides a useful reminder of the extent to which the solicitor-client privilege applies to policies agreed upon by several parties.
At the core of this decision is a request made to the Royal Canadian Mounted Police (“RCMP”) and the Department of Justice of Canada (“DOJ”) under the Access to Information Act. This request aimed at obtaining a Protocol that sets out the respective roles of the RCMP and the Attorney General, as well as the procedures to be followed when the RCMP possesses documents relevant to civil litigation against the Federal Crown.
The RCMP and the DOJ disclosed the Protocol, but excised everything except its title and the signatories of the document, invoking the solicitor-client privilege and the exemption for an advice developed by the government.
Faced with the refusal to disclose the substance of the Protocol, the requester complained to the Information Commissioner. The Information Commissioner concluded that the Protocol did not fall within the exemptions. The Federal Court (“FC”) concurred. According to the FC, certain formal matters worked against the existence of a solicitor-client privilege. It was thus found that the Protocol did not contain any legal advice and “was not concerned with providing legal advice”, as the Protocol was not, in itself, advice but rather an agreement setting out respective roles and responsibilities; hence it could not tell from the text of the Protocol whether it reflected earlier legal advice obtained by the DOJ.
In their appeal to the Federal Court of Appeal (“FCA”), the Ministers submitted that the substance of the Protocol is covered by the solicitor-client privileged and that the acting bodies properly exercised their discretion, i.e. not disclosing the Protocol.
Rejecting an all-or-nothing approach, and thus considering that only part of a document can be privileged, the FCA ordered disclosure of the last fourteen paragraphs of the Protocol, while leaving the first three paragraphs to the discretion of the qualified access coordinators.
The FCA considered general principles related to the solicitor-client privilege. It acknowledged that not every communication between lawyers and their clients are privileged; only communications directly related to the seeking, formulating or giving of legal advice are privileged, along with communications “within the continuum in which the solicitor tenders an advice”. This protected continuum will include a communication that forms part of that necessary exchange of information of which the object is the giving of legal advice.
Consequently, the disclosure of an unprotected communication should not have the potential to undermine the purpose behind the solicitor-client privilege.
The FCA ruled that documents such as policies and actions shaped by legal advice are not necessarily themselves legal advice, and do not necessarily form part of the protected continuum of communication.
The FCA considered the last fourteen paragraphs of the Protocol to be of such nature and thus not to fall within the continuum. The Court found that those paragraphs were negotiated and agreed-upon operational policy formulated after any legal advice has been given and outside any continuum of communication surrounding such advice.
However, on the first three paragraphs of the Protocol, the FCA ruled that they memorialize the content of certain legal obligations of the Federal Crown for the benefit of the RCMP and the DOJ and that their personnel engaged in document management. Accordingly, those paragraphs could be kept confidential.
This case is a good reminder that a document or action that is of the nature of an agreement or the product of a negotiation is to be considered not to be covered by the solicitor-client privilege. In addition it makes it clear that the solicitor-client privilege does not protect a document that is operational in nature or an act that is made past the stage of seeking or providing advice. This means that any act made for the purpose of conducting regular business following a legal advice or anything involved in the operational implementation of a legal advice would fall outside the scope of the privilege.
Supreme Court Docket: no Supreme Court Docket (as of May 7, 2013 – delay of 60 days is still effective).
Decision date: April 17, 2013
Canada (Public Safety and Emergency Preparedness) v. Information Commissioner of Canada FC FCA Federal Court federal Crown Information Commissioner Protocol RCMP