The Liberal government’s attempt to make good on its 2015 campaign promise to modernize Canada’s Access to Information Act and public-sector Privacy Act continues to make its way through the legislative process. Now before the Senate, Bill C-58 was supposed to be a good-news story for the Liberal government. At the time the bill was tabled a year ago, the government described the amendments as breaking new ground to provide the information commissioner with greater powers and to make government more open by default.

However, Bill C-58 concerns have been raised by lawyers and the judiciary that the reforms have failed to achieve their purpose and may erode fundamental protections in Canada’s legal system. The government is now at odds with lawyers and judges over controversial incursions on solicitor-client privilege and judicial independence. Even the former information commissioner argued that Bill C-58 failed to strike the right balance for transparency with respect to some of the areas of reform and called for the government to consider the concerns of the judiciary over the implications of Bill C-58 for the safety of judges and judicial independence.

When Parliament resumes sitting in the fall, will the Senate intervene? Here’s a summary of what is at stake in this dispute.

Erosion of solicitor-client privilege

The Canadian Bar Association has reported that Canadian federal Justice Minister Jody Wilson-Raybond has finally responded to the Canadian Bar Association and the Federation of Law Societies with respect to their concerns about the treatment of solicitor-client privilege in Bill C-58. It appears that the government has no plans to amend Bill C-58 in response to their concerns.

The Access to Information Act protects records of solicitor-client communication from disclosure in response to access to information requests. The Privacy Act contains a similar exception with respect to personal information access requests. Bill C-58 provides new powers for the information commissioner under the Access to Information Act and for the Privacy Commissioner under the Privacy Act to review privileged communications as part of determining whether a claim of privilege by a government institution is legitimate.

While this might seem benign, critics of Bill C-58, such as the Canadian Bar Association, have sounded the alarm. The commissioners’ right to review the records is unfettered. It is not a last resort when other methods of reviewing a claim of privilege have failed. In comparable situations in litigation, judges would usually review factual details of the circumstances of the record to establish that the test for privilege has been met. More disconcerting for the critics, the commissioners are not neutral adjudicators as would be the case if a judge were to review privileged material. For example, the information commissioner can appear in court on behalf of a complainant.

As previously reported by the IAPP, the CBA has warned that a judicial challenge to these provisions is likely.

Judicial independence

Another issue of concern is the effect on judicial independence as a result of applying the Access to Information Act to judicial expenses. Bill C-58 would, if passed, require proactive disclosure of incidental expenditures, representational allowances, travel allowances and conference allowances received by federally appointed judges. This is a broad group that includes Supreme Court, federal court and provincial superior court judges.

The government has not explained why it believes that it is necessary that this information be disclosed on a judge-by-judge basis. The Canadian Superior Courts Judges Association has argued that most expenses incurred by judges are not truly discretionary. For example, judicial travel expenses are usually incurred for the specific purpose of hearing cases or performing a judicial function outside of a judge’s ordinary location. This travel is determined by the chief justice. Travel expenses are then reviewed by an administrative officer.

Requiring proactive disclosure on a judge-by-judge basis would likely subject certain judges to unfair scrutiny. As the Canadian Superior Courts Judges Association explained, a federal court judge may be required to live in the Ottawa region. However, the federal court hears cases across Canada. Not all judges will travel to the same extent. This will depend on the number of hearings in an assigned case as well as the discretion of the chief justice in rotating judges for travel. This leaves open the possibility that certain judges will receive unfair scrutiny. Judges have also raised concerns regarding personal safety. The publication of information about where judges stay and eat where traveling could lead to profiling for nefarious purposes. Given these factors, the Canadian Bar Association, for example, has argued that the publication of aggregated data should be sufficient to increase financial transparency of the judiciary.

This proactive disclosure is subject to exceptions. For example, the disclosure can be withheld if it would interfere with judicial independence or might compromise the security of persons, infrastructure or goods. However, the arbiter of whether disclosure can be withheld are administrative positions within the court system, rather than the judiciary itself. The Canadian Superior Courts Judges Association has roundly criticized the idea that members of the executive branch would have final say on judicial independence.

Government rejects advice of the information commissioner

The most remarkable aspect of the way in which the House of Commons has handled Bill C-58 is that it rejected the advice of its then-information commissioner on the issue of the effect of the disclosure provisions on judicial independence. Then-Commissioner Suzanne Legault issued a special report, titled “Failing to Strike the Right Balance for Transparency,” in which she recommended that bodies that provide administrative support to the courts be subject to the right of access under the Access to Information Act. However, she was also careful to say that there should be an exclusion to protect judicial independence.

Prior to her departure, Commissioner Legault appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics. By that point, she acknowledged that the proposed regime under Bill C-58 was problematic. She recommended that the government consider the recommendation to only publish aggregated data on judicial expenses. She also supported the Canadian Superior Courts Judges Association’s recommendation that the chief justice of the relevant court determine the application of the exemption regarding whether judicial independence would be undermined by proactive publication rather than an administrative officer. However, the committee ignored both recommendations when it tabled its report to the House of Commons and the government made no amendments to Bill C-58 to address these concerns.

Litigation ahead unless the Senate changes course

Bill C-58 has had second reading in the Senate and has been referred to the Senate Standing Committee on Legal and Constitutional Affairs. There remains the possibility that the Senate, which has been much less deferential to Parliament in recent years, may amend Bill C-58. If the bill is passed without amendments, it is virtually certain that these issues will end up being litigated in court. The issues at stake are sufficiently important that we should expect that they may even be litigated up to the Supreme Court of Canada.

photo credit: Intiaz Rahim Parliament Hill Ottawa HDR via photopin (license)