Today, the Supreme Court of Canada released its decision in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, a case that will have far-reaching implications for the protection of solicitor-privilege. Stockwoods’ lawyers Brian Gover, Justin Safayeni and Carlo Di Carlo represented the intervener, Criminal Lawyers Association in this appeal.
This was a case dealing with s. 56(3) of the Alberta Freedom of Information and Protection of Privacy Act which allowed the Information and Privacy Commission of Alberta to order the production of documents “[d]espite . . . any privilege of the law of evidence”.
Applying Blood Tribe, the SCC ultimately concluded that this was not sufficiently clear language to be interpreted as abrogating privilege. The court held that this is consistent with the view of solicitor-client privilege as a fundamental policy of the law. This conclusion was also supported by a contextual analysis of the statute, as the court noted that:
- This interpretation is consistent with the principle that statutes should be read as a whole, as s. 27 of this act unequivocally establishes that a public body may refuse to disclose “information that is subject to any type of legal privilege, including solicitor‑client privilege”;
- This interpretation is coherent as “privilege[s] of the law of evidence”, referenced in s. 56(3), are a narrower category falling within the scope of the broader category of “legal privileges”, as laid out in s. 27(1); and
- Given its fundamental importance, one would expect that if the legislature had intended to set aside solicitor‑client privilege, it would have legislated safeguards to ensure that solicitor‑client privileged documents are not disclosed in a manner that compromises the substantive right.
Click here to see the factum submitted by Stockwoods on the behalf of the CLA.
