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Document
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MO-1663-F
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Institution/HIC
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Waterloo Regional Police Service
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Summary
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NATURE OF THE APPEAL: In this appeal, I issued Interim Order MO-1633-I, on April 11, 2003. I ordered the Waterloo Regional Police Service (the Police) to disclose certain records or portions of records, and upheld the application of exemptions under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) in relation to other records. I also indicated that I was reserving my decision on the application of section 12 to two portions of pages 122 and 123 of the records, pending notification to the Ministry of the Attorney General (the Ministry). Following Interim Order MO-1633-I, I sent a Supplementary Notice of Inquiry to the Ministry, inviting it to submit representations on the application of section 12 to the information at issue. The Ministry provided me with representations, which were shared with the appellant. The appellant has also provided representations on this issue. DISCUSSION: DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE The sole remaining issue in this appeal is the application of section 12 in conjunction with section 38(a) of the Act . Under section 38(a), the Police have the discretion to deny an individual access to his or her own personal information in instances where the exemption in section 12 would apply to the disclosure of that information. Section 12 of the Act reads: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. Section 12 contains two branches, a common law solicitor-client privilege and a statutory one. In the discussion below, I will consider both branches together, unless it is necessary to distinguish between the two. Solicitor-client privilege under section 12 encompasses two types of privilege: solicitor-client communication privilege litigation privilege The Police take the position that both types of privilege apply in this appeal. The Ministry agrees with the Police that solicitor-client privilege applies to the severed portions of pages 122 and 123. The appellant asserts that solicitor-client privilege has been waived and further, that any litigation privilege has ended with the completion of litigation. The appellant also claims that criminal activity on the part of the Crown and the police voids solicitor-client privilege. Solicitor-client communication privilege Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining professional legal advice. The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551]. The Police assert that in R. v. Campbell , [1999] 1 S.C.R. 565, the Supreme Court of Canada ruled that advice given to the police by a Crown prosecutor is protected by privilege, similar to solicitor-client privilege, so that police and prosecutors can confer without fear of any need to disclose their discussions. The Police submit that although police are not clients of the prosecutor, the Supreme Court has recognized the need for a privilege similar to solicitor-client privilege in order to avoid the chilling effect that the risk of such disclosure could have on the candour and content of such advice. On this basis, the Police assert that pages 122 and 123 are privileged communications between the Crown attorney and the Police. The Ministry supports the position of the Police on this issue, stating that the severed portions of these pages constitute privileged communications between the Police and the Crown attorney. The appellant disputes any of the allegations that have been made against him, providing background and information in support of his position. With respect to the application of solicitor-client privilege, the appellant refers to a note on page 122, approving of disclosure to the appellant's counsel. The appellant states that this demonstrates waiver of the privilege. The appellant also refers to criminal activity on the part of the Crown and the Police which, he asserts, voids the application of solicitor-client privilege. Analysis In R. v. Campbell , the Supreme Court of Canada adopted what it described as the "functional" definition of solicitor-client privilege set out in Descôteaux v. Mierzwinski , [1982] 1 S.C.R. 860 at p. 872: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. The Court found that the consultation by an officer of the Royal Canadian Mounted Police (the RCMP) with a Department of Justice lawyer over the legality of a proposed "reverse sting" operation by the RCMP fell squarely within the functional definition. The Court emphasized that it is not everything done by a government (or other) lawyer that attracts solicitor-client privilege, providing some examples of different responsibilities that may be undertaken by government lawyers in the course of their work. The Court stated that [w]hether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered. R. v. Campbell has been applied in orders of this office, such as in PO-1779, PO-1931 and MO-1241. In each of these orders, a solicitor-client privilege was found on the basis that the police (a municipal police service or the Ontario Provincial Police) sought legal advice from Crown counsel. All communications within the framework of this relationship were found to qualify for solicitor-client privilege under either section 12 of the Act , or section 19 of the provincial Act . In addition, in Order PO-1779, in relation to the OPP, Assistant Commissioner Tom Mitchinson analysed the relationship between the OPP and the Crown as follows: However, there is one further aspect to consider before concluding that solicitor-client communications privilege is established. In Order P-613, section 19 was not applied on the basis that there is no solicitor-client relationship between Crown counsel and the OPP. However, in my view, this interpretation is no longer supportable as a result of the recent Supreme Court of Canada decision in R. v. Campbell , [1999] 1 S.C.R. 565. In that case, the Court concluded that a solicitor-client relationship did exist between counsel with the federal Department of Justice and the R.C.M.P. The decision sees the R.C.M.P. as a "client department" of the Department of Justice and, therefore, it is difficult to see how the same conclusion could not apply vis à vis the Ministry of the Attorney General and the OPP. In my view, a solicitor-client relationship exists between the OPP and Crown counsel. This analysis has been followed in
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Legislation
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Subject Index
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Published
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Jun 30, 2003
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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