Concerns over access rights, judicial independent and privilege

By CBA/ABC National May 29, 201829 May 2018

Concerns over access rights, judicial independent and privilege


CBA sent its submission this morning on Bill C-58 – and proposed amendments to the Access to Information Act (ATIA) and the Privacy Act  – to the Senate’s Legal & Constitutional Affairs Committee. It is identified three areas of particular concern cover issues surrounding access rights, judicial independence and solicitor-client privilege. The bill is in its 2nd reading in the Senate.

Access to information

On the access front, the CBA is pushing for further amendments to Bill C-58 to protect the quasi-constitutional access to information rights of Canadians, citing overdue changes to the ATIA.  It is recommending that ATIA’s scope be expanded to include organizations that support Parliament, subject to Parliamentary privilege, such as the Prime Minister’s Office.  It is also advocating for the removal of administrative barriers to Canadians’ right to know, to “ensure that a government institution cannot decline to act because an applicant did not meet the requirements.”

It also opposes the application fee for requests, which it calls “inconsistent with the principles of open government,” and supports the five-year time period for a statutory review of the legislation.

Judicial independence

In its submission the CBA has reiterated its concerns with the proactive publication requirements in Bill C-58, as they may be applied to the judiciary.

Because of the unique and distinct constitutional role of the courts, and the difficulty in drawing bright lines between the judicial function and administrative matters – a key component of judicial independence – the CBA’s preferred approach is that the judiciary and the courts be exempt from ATIA. Alternatively, and in the interest of transparency, it is prepared to accept public and periodic reporting on incidental expenditures, representational allowances, travel allowances and conference allowances, provided this is done in the aggregate by each court.

Finally, the CBA backs the position that it is unconstitutional to place decision-making authority about judicial independence exemptions with members of the executive branch. “To preserve judicial independence, these decisions should be made by the Chief Justice of each court, or their designate,” the submission reads.

Solicitor-client privilege

Clauses 15 and 50 of Bill C-58 would allow the Information and Privacy Commissioners, respectively, to review records withheld by the head of a government institution.  The CBA has concerns that these records are insufficiently protected by solicitor-client privilege, professional secrecy or litigation privilege.  Noting that the Supreme Court of Canada has ruled that solicitor-client privilege “can only be set aside by legislation that is clear, explicit and unequivocal”, and that privilege cannot be compromised without evidence of absolute necessity and minimal impairment, the CBA takes the view that the proposed amendments fall short of the standard.

Because Clauses 15 and 50 wind up giving the Information and Privacy Commissioners unfettered rights to examine privileged records without adequate safeguards to ensure they are not disclosed in a manner that compromises the substantive right, the CBA is recommending their wholesale removal.


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