Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2017 ABQB 656

Court of Queen’s Bench of Alberta Citation: Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2017 ABQB 656 Date: 20171101 Docket: 1601 14378 Registry: Calgary Between: Chief of Police of the Calgary Police Service Applicant - and - Information and Privacy Commissioner and Thomas Engel Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J.

Hall _______________________________________________________ [ 1 ] This matter comes before me for judicial review of a decision by the designate of the Information and Privacy Commissioner (the “Commissioner”). The application is brought by the Calgary Police Service (“CPS”), who is the “public body” as that term is described in the Freedom of Information and Protection of Privacy Act (the “ Act ”). The application concerns production, under the Act , of documents over which the CPS claims solicitor-client privilege. The Commissioner’s designate, Ms.

Teresa Cunningham, ordered that certain documents, over which the CPS claims solicitor-client privilege, should be produced, in an unredacted form, to the Respondent, Thomas Engel. While the Chief of Police does not appeal in respect of all of the documents, he has identified certain of the documents as being subject to this appeal, as the “ Withheld Information ”, being Records 7-14, 24-26, 29-31 (top half), 35, 36,40-42, 45-47 (except the partial bottom email that continues to Record 48), 50, 51 (except the partial bottom email that continues to Record 52), 53-61, and 64-72.

The CPS seeks an order in the nature of certiorari quashing the order of the Commissioner, and a declaration that the order is invalid or should be set aside, with respect to the Withheld Information . [ 2 ] This matter commenced when Mr. Thomas Engel applied to the CPS. In August 2013, Mr. Engel made a freedom of

information request to the CPS for access to “all records,” as defined by s 1(

q) of the Act, in relation to the processing of Mr. Engel’sprevious request to the Freedom of Information Co-ordinator of the CPS dated February 20, 2013. [3] On September 20, 2013, the CPS responded by providing Mr. Engel with a copy of the requested records, except for certainof the records that were withheld from disclosure pursuant to ss 27(1) (privileged information) and 24(1) (advice from officials) of theAct. [4] On October 21, 2013, Mr.

Engel requested that the Commissioner review the CPS decision to redact the withheld records. [5] On March 19, 2015, the Commissioner’s designate gave notice that she would conduct a written inquiry into the matter. [6] On May 19, 2015, CPS provided an Affidavit of Suzanne Turenne, who is the CPS Freedom of Information and PrivacyManager. In that Affidavit, she provided an explanation as to why the records were redacted.

Further, she provided a table respectingeach of the documents, which listed the document by description, and then listed the CPS’ reasons for redaction. [7] On July 24, 2015, the Commissioner’s designate, Ms. Cunningham, wrote to each of the parties indicating that she hadreviewed the submissions and evidence of the CPS. She indicated that, for her reasons that are described therein, she must ask the CPS toeither provide more detailed evidence to support its application of s 27(1)(

a) of the Act (solicitor-client privilege) to information in therecords, or to provide the records in question for her review. [8] In response, the CPS provided an “in camera” Affidavit of Ms. Turenne to the Commissioner. The in camera Affidavit,broadly speaking, provided additional information and reasons, and a further index called In Camera Reasons for Redactions. That indexdescribed the document, the original reasons for redaction, the Commissioner’s designate’s response, and the in camera reasons forredaction. This was done in relation to all of the documents under consideration.

That Affidavit remains in camera, such that Mr. Engelhas never seen it. [9] After these submissions, the Commissioner’s designate, Ms. Cunningham, made her Order dated September 14, 2016. TheOrder contains her reasoning and is some 55 pages in length. Ms. Cunningham goes through each document at great length with a view todetermining whether the evidence provided to her by the CPS satisfied the CPS’ burden of proof, on a balance of probabilities, that thedocuments in question were solicitor-client privileged.

She also reviewed the documents to see whether they were excepted fromproduction under ss 27(1)(b), 27(1)(c), and 24 of the Act. She ordered that the Withheld Information, that is the subject of this judicialreview, be produced by the CPS. [10] The CPS has not produced the Withheld Information, but instead has brought this application for judicial review. [11] The Applicant provided Briefs and made oral argument. The Respondent, Thomas Engel, did likewise. The Commissionerprovided the certified record of the proceedings. In addition, counsel for the Commissioner provided both written and oral argument.

TheApplicant did not contest the Commissioner’s right to do so, and I allowed counsel for the Commissioner to make such argument. [12] In this application, I am asked to review the decision and order of the Commissioner in so far as it relates to claims ofsolicitor-client privilege, which are claims under s 27(1)(

a) of the Act. I am not asked to review the decision and order with respect to thedocuments under s 27(1)(b), 27(1)(c), or 24 of the Act.

However, in the event that I order the documents to be produced, the Applicanthas asked me to order that they be produced to the Commissioner, again, in camera, so that the Commissioner may then makedeterminations with respect to claims for exceptions made by the CPS under those sections. [13] It is to be noted that, while the Commissioner’s designate was provided with descriptions of the documents, then later moredetailed descriptions of the documents, at no time were the unredacted documents provided to her. There is nothing wrong with that.

Thedecision of the Supreme Court of Canada in Information and Privacy Commissioner of Alberta v Board of Governors of the Universityof Calgary, 2016 SCC 53 , 2016 2 SCR 555 (“University of Calgary”) was published after the decision of the adjudicator in thismatter. However, on the subject of whether the public body must produce the documents over which it claims privilege, the SupremeCourt of Canada was clear to say that the language of s 56(3) of the Act did not have the effect of requiring production to theCommissioner of documents over which solicitor-client privilege is claimed.

The Supreme Court of Canada determined that there is norequirement upon the public body to produce those records to the Commissioner. Indeed, the Supreme Court of Canada noted, at para36: In this regard, it is noteworthy that the Commissioner is not an impartial adjudicator of the same nature as a court. FOIPP empowers theCommissioner to exercise both adjudicative and investigatory functions. Unlike a court, the Commissioner can become adverse ininterest to a public body. The Commissioner may take a public body to court and become a party in litigation against a public body thatrefuses to disclose information.

These features of the Commissioner’s powers further indicate that disclosure to the Commissioner isitself an infringement of solicitor-client privilege. [14] The concern of CPS, is that, if it were to provide to the Commissioner the unredacted documents over which it claimssolicitor-client privilege, that very solicitor-client privilege may be lost. Nothing in the Act protects solicitor-client privilege for thosedocuments if they are produced to the Commissioner for review.

I agree with the submissions of the Applicant, CPS, in that regard. [15] The CPS further argues before me that, pursuant to University of Calgary, all that it is required to do to maintain a claim ofsolicitor-client privilege over a document is to identify the document with such specificity as is required in an Affidavit of Records underthe Alberta Rules of Court. Once it has done so, the CPS argues, it has established the existence of solicitor-client privilege and nothingmore is required of it.

The CPS says, in this case, that it has done so and more. [16] In making that argument, the CPS is relying on para 70 of the Supreme Court of Canada decision in University of Calgary: At the time of the Commissioner’s request for disclosure, the prevailing authority in Alberta in civil litigation allowed a party to bundleand identify solicitor-client privileged documents by document numbers, as the University had done (see Dorchak v. Krupka, 1997

ABCA 89, 196 A.R. 81). No evidence or argument was made to suggest that solicitor-client privilege had been falsely claimed by theUniversity. In these circumstances, the delegate erred in concluding that the claim needed to be reviewed to fairly decide the issue. [17] Further, in University of Calgary, Justice Cromwell, delivering a decision concurring in the result with the majority, stated asfollows: The appellant conceded in the hearing before this Court that the University’s claim of privilege complied with the requirements ofAlberta civil litigation practice at the time, which was governed by Dorchak v.

Krupka, 1997 ABCA 89, 196 A.R. 81. While I understandthat these requirements have since evolved in light of the subsequent decision by the Alberta Court of Appeal in Canadian NaturalResources Ltd. v. ShawCor Ltd., 2014 ABCA 289, 580 A.R. 265, it was, in my view, a reviewable error for the Commissioner’s delegateto impose a more onerous standard on the University in relation to its assertion of privilege than that applicable in civil litigation beforethe courts. This conclusion is reinforced by the fact that the evidence filed with the Commissioner met the three-part test set out inSolosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821.

The evidence — in particular the letter by the University’s externallegal counsel — clearly asserts that the documents are communications between solicitor (the University’s external legal counsel) andclient (the University’s General Counsel, on behalf of the University); which entails the seeking or giving of legal advice; and which isintended to be confidential by the parties. (underlining added) [18] Reviewing those comments by the Supreme Court of Canada in context, and noting that the Supreme Court of Canada was notthere determining how solicitor-client privilege was to be proven, I find that those comments of the Supreme Court of Canada relate tothe assertion of solicitor-client privilege by a party.

In relation to an inquiry under the Act, all the public body is required to provide tothe Commissioner to assert privilege is a description of the documents that would be a sufficient description if it was placed in anAffidavit of Records in a civil action. [19] However, that only relates to what is necessary for a public body to assert a claim of privilege. [20] The task of the Commissioner is to determine whether, in fact, a claim of privilege has been made out.

In doing so, theCommissioner must apply the law respecting proof of privilege. [21] The Supreme Court of Canada, in Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 , [2004] 1 SCR809, stated, at para 20: Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must beassessed on a case-by-case basis to determine if the circumstances were such that the privilege arose.

Whether or not the privilege willattach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought andrendered: Shirose, supra, at para. 50. [22] Further, as stated in R v McClure, 2001 SCC 14 , [2001] 1 SCR 445, at para 2: Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to thejustice system in Canada. The law is a complex web of interests, relationships and rules.

The integrity of the administration of justicedepends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of thisprivilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fullyrepresented. [23] The cases indicate that the solicitor-client privilege is jealously guarded and should only be set aside in the most unusualcircumstances, such as a genuine risk of wrongful conviction. [24] In this case, the Commissioner’s designate, Ms.

Cunningham, conducted a detailed review of the descriptions providedregarding each document (some of which had to be “coded” so as to protect the in camera nature of the information provided to her),applying the law as to when solicitor-client privilege has been proven, in order to make her decisions. [25] While there has been debate between the parties as to whether the proper standard of review by the Court is reasonableness orcorrectness, one thing is abundantly clear; and that is, in regard to questions of privilege, the decision, ultimately, must not only bereasonable, but it must be correct.

In University of Calgary, supra, the Court held at para 19 that the applicable standard of review of thedecision of the Commissioner was correctness. In doing so, the Supreme Court noted, at para 20: ... As this Court said in Blood Tribe, solicitor-client privilege is “fundamental to the proper functioning of our legal system” (para. 9). Itis also a privilege that has acquired constitutional dimensions as both a principle of fundamental justice and a part of a client’sfundamental right to privacy (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 41; Lavallee, Rackel & Heintz v.

Canada(Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 46; see also Canada (National Revenue) v. Thompson, 2016 SCC 21,[2016] 1 S.C.R. 381, at para. 17).

Further, as the Court of Appeal observed, the question of what statutory language is sufficient toauthorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on otherstatutes. [26] From that discussion, I take it not only to be the case that the standard of review in the issue before me is correctness, butindeed, given the central importance of solicitor-client privilege through our legal system, the ultimate decision as to whether thedocuments being reviewed are protected by solicitor-client privilege, must be a correct one. [27] The Commissioner’s designate, however, is left to do her very best, without the benefit of seeing the actual redacted portionsof the documents, in order to test the claim of solicitor-client privilege.

She does her best; but whether she is actually correct in herdeterminations that the documents are not privileged, is simply unknown without a review of the documents. Therefore, it seems obviousto me, that the Court, in conducting this judicial review, must have the documents produced to it, so that it can make the correctdetermination as to whether they are privileged.

[ 28 ] Here arises the conundrum. Except for particularized exceptions, such as alleged bias on the part of the tribunal, no new evidence is to be permitted at a judicial review, since it is a review on the record only. Counsel for the Commissioner maintains, therefore, that this Court cannot review the records to determine whether in fact they are solicitor-client privileged. [ 29 ] That cannot be correct.

If it is, then it puts the public body in a position where the Commissioner does not have the right to review the documents, but must decide, based on a description, whether they have been proven to be privileged. The question of privilege must be correctly determined. The only way to correctly determine whether the documents are, in fact, privileged, is to have the Court review those documents under its powers to do so.

If the Court accepts the Commissioner’s submissions that the Court cannot order the documents to be produced to it, to assess the claim of privilege, then the correctness of that assessment could never be determined, and therefore significant risk would arise that documents which are in fact solicitor-client privileged would have to be produced by the public body without ever having been reviewed. [ 30 ] I find, therefore, that there is an exception to the rule respecting introduction of new evidence, where the question before the Court on judicial review is solicitor-client privilege, and where the documents in question have not been reviewed by the Administrative Tribunal. [ 31 ] I order that the “ Withheld Information ” be provided to the Court and be sealed by the Clerk of the Court so that the documents are not publicly available, but so that they can be reviewed by me. [ 32 ] I further order that this decision be stayed until such time as the formal order has been taken out, and the appeal period has passed.

In the event that this decision is appealed, then I will entertain further application by the parties for a further stay pending appeal. [ 33 ] I am ordering a stay of my decision because, if I am found to be in error, the matter can be returned to me for review on the record and without production of the Withheld Information . [ 34 ] At this time, costs of the application before me are reserved. Heard on the 11 th day of October, 2017 to the 12 th day of October, 2017. Dated at Calgary, Alberta this 1 st day of November, 2017. R.J. Hall J.C.Q.B.A. Appearances: Scott H.D.

Bower for the Applicant, Chief of Police of the Calgary Police Service G.S. Solomon, QC and Ryan M.L. Phillips for the Respondent, Information and Privacy Commissioner Nicole Rodych as Agent for the Respondent, Thomas Engel