Access bill problematic for privilege and judicial independence

By Doug Beazley October 24, 201824 October 2018

Access bill problematic for privilege and judicial independence

Few government bills make it to the finish line dragging as much heavy baggage as C-58. The first attempt to update Canada’s government information access and privacy laws in more than three decades is before a Senate committee this week for public submissions.

It’s safe to say its critics outnumber its defenders at this point. Most of the opprobrium has focused on claims that the bill throws up roadblocks for ordinary Canadians trying to access government information, or that it limits the types of information they can see. Former federal Information Commissioner Suzanne Legault called the draft bill a “regression of existing rights.” Her successor, Caroline Maynard, said the bill “fails to deliver” on the federal Liberals’ election commitment to openness and transparency.

The Canadian Bar Association largely agrees — and it has a few quarrels of its own with C-58. It appeared Wednesday before the Standing Senate Committee on Legal and Constitutional Affairs regarding the bill. Alongside the information commissioner, the CBA — in its May 2018 brief to the Senate committee — argues that the federal government never had a plausible reason for not extending the Act to cover documents produced by the Prime Minister’s Office and ministers’ offices. (The law offers “proactive disclosure” of such documents as a substitute for access — basically at the government’s discretion. “Proactive disclosure is not a substitute for access rights,” says the CBA submission.)

The CBA also joins the commissioner in calling on Ottawa to loosen up new restrictions the bill places on access applications. C-58 requires that applicants state the “specific subject matter … the type of record being requested (and) the period for which the record is being requested …” Those criteria, says the CBA, amount to “administrative barriers” that would discourage members of the public unfamiliar with the contours of the federal bureaucracy from applying for documents.

But the CBA’s problems with C-58 go well beyond the places where the bill falls down as an “open government” law. The association argues the bill erodes two of the bedrock principles holding up the justice system: judicial independence and solicitor-client privilege.

C-58 gives the federal information commissioner the power to review documents withheld from release by the head of a government institution who claims that they’re shielded by solicitor-client privilege — and to order their release. By doing so, says Darcia Senft, chair of CBA ethics subcommittee, the bill gives the commissioners a power judges themselves are extremely reluctant to use.

“Even in cases where disputes over privilege are brought to a judge, the judge rarely reviews the material in question personally,” she says. “The judge will be told the nature of the material, where it comes from and roughly what it’s about — enough information to make a decision without actually seeing the material itself.”

Senft points out that the Supreme Court of Canada has upheld the principle of solicitor-client privilege on multiple occasions, to the point where it’s been “elevated to the status of a Charter-protected right.”

“No one can be expected to speak candidly to a lawyer without the assurance that the conversation is confidential,” she says. “Without that trust, lawyers can’t advise their clients to the best of their ability.

“No one disputes the law is in need of an update. But you can’t just trample on decades of case law supporting the principle of solicitor-client privilege.”

Judicial independence comes up in C-58 through the “proactive disclosure” mechanism, which the bill would apply to the offices of individual judges — specifically, their expenses and travel allowances.

That requirement, says John Stefaniuk, chair of the CBA’s judicial issues committee, undercuts the principle of independent administration — the idea that judges cannot even be seen as beholden to any other branch of government.

“There’s a reason for the separation between the executive, legislative and judicial branches,” he says. “Judges must operate independently of any direction from the executive and legislative branches in order to maintain public trust in the system.

“We have no problem with reporting expenses in aggregate — it’s when it comes down to naming individual judges that there’s a problem.”

Part of that problem has to do with security, says Stefaniuk: judges get death threats from time to time, and publishing an individual judge’s travel records might seem like asking for trouble.

But there’s a larger problem in C-58’s treatment of judges’ expenses, he says — a broader trend of treating the judiciary as a political football.

“This is all part of a gradual erosion in political circles of respect for the idea of judicial independence. More and more politicians seem comfortable with getting directly involved (with the justice system).”

Will the Senate committee take the CBA’s concerns seriously? Since the Red Chamber became home to a growing number of independent senators operating free of party control, it’s shown an increasing tendency to cast a critical eye on government legislation. So stay tuned.

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