Independent media needs you. Join the Tyee.


The Hook: Political news, freshly caught

Advice from lawyers 'sacrosanct', must be private: committee chair

The privacy of advice from lawyers is so important that only the Supreme Court of British Columbia should decide when it can be released, said Ron Cantelon, the MLA who chaired an all-party committee that unanimously recommended making such a change.

Moreover, according to Cantelon, it's up to lawyers and their clients to decide when such a situation exists. This despite plenty of case law that says communication between lawyers and clients is not automatically privileged.

“It's one of those things that's sacrosanct,” Cantelon said. “Solicitor-client privilege should be respected above all.”

But, as the Tyee reported, a ruling this week from acting Information and Privacy Commissioner Paul Fraser makes it clear that just because a public body says records are covered by solicitor-client privilege, doesn't mean the body's correct.

In that case the Vancouver School Board withheld sections of a report written by former education deputy minister Don Avison, saying they were advice from a lawyer and under section 14 of the Act they could withhold them. But Fraser disagreed, citing precedent from the Supreme Court of Canada, saying that even though Avison is a lawyer, he wasn't acting as a lawyer for the school board.

“While I accept that the School District retained Mr. Avison to gather facts and provide it with recommendations for improving its policies and procedures, it did not retain him in order to seek legal advice from him,” wrote Fraser. “Any advice he may have offered in his report cannot be protected by legal professional privilege.”

Asked who decides what's covered by solicitor-client privilege, Cantelon stressed that he's not himself a lawyer but that his understanding is it would be up to a lawyer and his or her client to decide if the communication was covered.

If there's a disagreement, that should be resolved by the Supreme Court as the highest legal authority in the province, he said.

The government should think twice about adopting the recommendation as law, said Vincent Gogolek, policy director for the Freedom of Information and Privacy Association. “These things expand to meet the need to keep things under wraps.”

Acting on the recommendation would give public bodies a convenient way to hide things, he said, and fighting such decisions would clog up the courts, often with people representing themselves.

“A lot of people seem to think if a lawyer looked at it or breathed on it it's covered by privilege, even though the Supreme Court of Canada made very clear that's not the case,” Gogolek said.

The law already allows public bodies to seek a judicial review if they disagree with the commissioner's decision, he added. “There hasn't been a problem with the commissioner deciding this so far . . . The rule should be if it ain't broke don't fix it.”

UPDATE, 11:45 a.m.: The NDP's Doug Routley, vice-chair of the committee that reviewed the FOIPPA, said that while NDP members endorsed the report there was significant disagreement on several recommendations, including the ones to do with legal advice. "We negotiated hard against the governments agenda to completely strip privacy protections," he said.

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria. Reach him here.

What have we missed? What do you think? We want to know. Comment below. Keep in mind:


  • Verify facts, debunk rumours
  • Add context and background
  • Spot typos and logical fallacies
  • Highlight reporting blind spots
  • Ignore trolls
  • Treat all with respect and curiosity
  • Connect with each other

Do not:

  • Use sexist, classist, racist or homophobic language
  • Libel or defame
  • Bully or troll
  • Troll patrol. Instead, flag suspect activity.
comments powered by Disqus