Slansky v. Canada (Attorney General)

Slansky v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-09-09
Neutral citation
2013 FCA 199
File numbers
A-497-11
Notes
Reported Decision
Decision Content
f
Date: 20130909
Docket: A-497-11
Citation: 2013 FCA 199
CORAM: EVANS J.A.
STRATAS J.A.
MAINVILLE J.A.
BETWEEN:
PAUL SLANSKY
Appellant
and
ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN
Respondents
and
CANADIAN JUDICIAL COUNCIL
Intervener
Heard at Toronto, Ontario, on April 16, 2013.
Judgment delivered at Ottawa, Ontario, on September 9, 2013.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRING REASONS BY: MAINVILLE J.A.
DISSENTING REASONS BY: STRATAS J.A.
Date: 20130909
Docket: A-497-11
Citation: 2013 FCA 199
CORAM: EVANS J.A.
STRATAS J.A.
MAINVILLE J.A.
BETWEEN:
PAUL SLANSKY
Appellant
and
ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN
Respondents
and
CANADIAN JUDICIAL COUNCIL
Intervener
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] The Canadian Judicial Council (CJC) has a statutory responsibility to investigate complaints of misconduct made against federally appointed judges. This may result in a recommendation to the Minister of Justice that a judge has become unable to perform judicial duties by virtue of misconduct, and should be removed from office. The CJC’s disciplinary function is delicate: it engages issues of judicial independence and accountability, and of confidentiality and transparency. Consideration of these issues must be driven by the public interest in the administration of justice in both its broadest and more specific senses.
[2] This case raises an important issue about the CJC’s investigative process. If a complainant applies for judicial review of a decision by the Chairperson of the Judicial Conduct Committee (Chairperson) to dismiss a complaint against a judge, must the CJC disclose a confidential report prepared by outside counsel to assist the Chairperson in considering the complaint?
[3] In August 2004, Paul Slansky, a Toronto criminal lawyer, complained to the CJC about the conduct of Justice Robert Thompson (Judge), an Ontario Superior Court Judge. He alleged that the Judge had been guilty of serious misconduct during a long and difficult first-degree murder trial before a jury, in which Mr Slansky was representing the accused.
[4] The Chairperson, Chief Justice Scott of Manitoba, dismissed the complaint and closed the file without referring it to an Inquiry Committee (hearing panel) of the CJC. In making this decision, the Chairperson relied on a report from counsel, Professor Martin Friedland, whom he had retained to make further inquiries into Mr Slansky’s allegations.
[5] Mr Slansky brought an application for judicial review of the Chairperson’s decision to dismiss his complaint and not to refer it to a hearing panel. Although Professor Friedland’s report had been taken into account by the Chairperson in making this decision, the CJC refused to disclose it as part of the tribunal record requested by Mr Slansky pursuant to rule 317 of the Federal Courts Rules, SOR/98-106 (Rules). The CJC said that the report constituted legal advice and was thus protected by solicitor-client privilege, and was also subject to public interest privilege.
[6] Mr Slansky brought a motion to compel disclosure of the report as part of the CJC’s record. In the alternative, he argued that the Court should exercise its discretion under subsection 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, to order the conversion of the application into an action, so that he would have the benefits of trial process, including discovery and viva voce evidence.
[7] Subject to the redaction of pages in the report that she considered to be legal advice, Prothonotary Milczynski granted the motion and rejected the CJC’s privilege arguments. Having ordered disclosure of most of the report, she did not have to, and did not, determine the conversion issue. Her decision is reported at 2011 FC 476.
[8] The CJC brought a motion under rule 51 of the Rules to set aside the Prothonotary’s decision. Justice de Montigny of the Federal Court allowed the motion and reversed the Prothonotary’s decision. He found that Professor Friedland’s report was subject to both legal advice and public interest privilege. He declined to sever parts of the report, but ordered the CJC to disclose the 6,000 pages of trial transcript examined by Professor Friedland, as well as other publicly available materials that he had considered in preparing his report. Justice de Montigny exercised his discretion not to convert the application into an action. His decision is reported at 2011 FC 1467.
[9] Mr Slansky appeals to this Court from that decision. For the reasons that follow, I have concluded that the Friedland Report is covered by legal advice privilege. In addition, I agree with my colleague Justice Mainville that the report is also subject to public interest privilege. I am not persuaded that Justice de Montigny committed any error in refusing Mr Slansky’s request to convert the application into an action.
[10] Accordingly, I would dismiss the appeal, but vary the Federal Court’s order by requiring the CJC to disclose pages 31-32 of the Report as part of its tribunal record because they are not relevant to Professor Friedland’s investigation of Mr Slansky’s complaint against the Judge.
B. FACTUAL BACKGROUND
[11] In a 16-page complaint to the CJC, dated August 12, 2004 (Appeal Book, pp. 39-54), Mr Galati, who was representing Mr Slansky, alleged serious misconduct by the Judge during the trial: discourteous, abusive and impatient behaviour towards Mr Slansky; bias, refusal to hear arguments and unduly interfering with Mr Slansky’s cross-examination of witnesses; improper motives; abuse of office; and knowingly acting contrary to law.
[12] In turn, the Judge, through the Assistant Deputy Attorney General of Ontario, complained to the Law Society of Upper Canada about Mr Slansky’s conduct at the trial. This complaint was dismissed without being referred to a hearing, on the ground that the conduct in question did not warrant discipline.
[13] The pre-trial motions and the murder trial before Justice Thompson lasted from September 2002 to July 2004, including 130 days for the trial itself, which was much longer than anyone anticipated. It involved dozens of motions and required the Judge to make numerous difficult procedural and evidentiary rulings. A complicating factor throughout was that it was a re-trial following the Ontario Court of Appeal’s reversal of the accused’s conviction at the first trial, a fact that the Judge had to keep from the jury. The fact that Mr Slansky was convinced of his client’s innocence, while the Judge seems to have been equally convinced that the accused was guilty, only made the management of the trial more challenging.
[14] After receiving Mr Slansky’s complaint against the Judge, the Chairperson engaged Professor Friedland of the University of Toronto’s Faculty of Law to conduct further inquiries into it and to report back to him. Professor Friedland is a member of the Ontario Bar, a distinguished criminal law scholar, and the author of an influential report prepared for the CJC, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995).
[15] The scope of Professor Friedland’s mandate was set out in a letter, dated May 3, 2005, in which Norman Sabourin, the Executive Director and General Counsel of the CJC, confirmed Professor Friedland’s appointment: Appeal Book, pp. 56-58. The letter defined the scope of his role by quoting from the CJC’s Policy with Respect to Counsel Retained in Judicial Conduct Matters, dated September 2002 (Policy).
The role of Counsel in conducting further inquiries is, essentially, to gather further information. Persons familiar with the circumstances surrounding the complaint, including the judge who is the subject of the complaint, will be interviewed. Documentation may be collected and analyzed. [Emphasis added] It is not the role of Counsel conducting further inquiries to weigh the merits of a complaint or to make any recommendation as to the determination that a Chairperson or a Panel should make. […]
This role is sometimes referred to as that of a “fact finder”. This description is accurate if it is limited to the gathering or clarification of facts. It would not be accurate if it were intended to encompass adjudicative fact-finding in the sense of making determinations based on the relative credibility of witnesses or the persuasiveness of one fact over another. The role of Counsel conducting further inquiries is simply to attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations. The Counsel must obtain the judge’s response to these allegations and evidence, and present all of this information to the Chairperson or Panel.
The role of Counsel undertaking further inquiries is to focus on the allegations made. However, if any additional, credible and serious allegations of inappropriate conduct or incapacity on the part of the judge come to the Counsel’s attention, Counsel is not precluded from inquiry into those matters as well.
[16] In an affidavit affirmed on February 9, 2007 (Appeal Book, pp. 293-94) for the purpose of Mr Slansky’s motion before the Prothonotary, Mr Sabourin put something of a gloss on the terms of the CJC’s Policy reproduced in Professor Friedland’s letter of engagement. He indicated that counsel’s role of “fact finder” was broader than might be inferred from reading the Policy.
[17] Thus, Mr Sabourin said that he was responsible for directing the scope of counsel’s inquiries and “the nature of the advice they provide” (emphasis added). Further, he said, counsel is expected “to provide a lawyer’s analysis and recommendations” (emphasis added) in respect of the allegations of the complaint. Mr Sabourin concluded that his expectation, as well as that of the Chairperson, was that counsel’s report would constitute legal advice because
… we retain legal counsel and seek a solicitor’s investigation of the facts and a solicitor’s analysis and recommendations concerning those facts in the context of the legal mandate and obligations of the Council when considering a complaint. Indeed, this is why the Complaints Procedures provide that it must be a lawyer that conducts such inquiries; otherwise, this work could be ably conducted by an investigator without legal credentials. [Emphasis added]
[18] That Professor Friedland shared this understanding of his mandate is suggested by the fact that he stamped his report “CONFIDENTIAL and subject to SOLICITOR-CLIENT PRIVILEGE”.
[19] In a 10-page letter, dated March 9, 2006, Mr Sabourin advised Mr Slansky of the bases of the Chairperson’s decision that his complaint did not warrant further consideration: Appeal Book, pp. 311-20.
[20] According to Mr Sabourin, it was the Chairperson’s opinion that when viewed in the context of this difficult trial, and taking into account Mr Slansky’s own conduct, the Judge’s management of the trial, while far from perfect, did not constitute judicial misconduct. The Chairperson had concluded that, although not all the Judge’s rulings were necessarily correct, they did not evidence bias or a knowing disregard of the law.
[21] Mr Sabourin also described Professor Friedland’s methodology in preparing his report (Appeal Book, p. 312), which included: the examination of 6,000 pages of trial transcript, minutes of the proceedings prepared by the court registrars during the trial, and 78 of the rulings made by the Judge before and during the trial; and interviews conducted by Professor Friedland with the Judge, Mr Slansky, named Crown counsel, the Regional Director of Crown Attorneys, and the Regional Senior Justice. Professor Friedland also listened to tapes of the parts of the trial that had become particularly intense.
[22] Mr Sabourin noted that the Chairperson had not adopted Mr Galati’s suggestion that “the local bar” be interviewed, because the interviews conducted by Professor Friedland provided sufficient information to enable him to assess the complaint. Moreover, the Judge’s predilections in matters of criminal justice, and sentencing in particular, were evident from interviews with the Judge and from some of his reported decisions.
[23] In his application for judicial review of the dismissal of the complaint, Mr Slansky alleged, among other things, that the CJC’s investigation of the complaint was inadequate, the interpretation of the Judge’s conduct was wrong in law, and the CJC had exceeded its jurisdiction by passing “erroneous and flawed judgment” on Mr Slansky’s conduct at trial as an excuse for the Judge’s misconduct.
C. LEGISLATIVE FRAMEWORK
[24] The Judges Act, R.S.C. 1985, c. J-1, is the primary legislation relevant to this appeal. Subsection 59(1) establishes the CJC, which is composed of the Chief Justice of Canada, who is the chair of the CJC, and the federally appointed chief justices, associate chief justices, and other specified senior judges, from across Canada.
[25] Subsection 60(1) defines the objects of the CJC. Subsection 60(2) set out the CJC’s means of furthering these objects; paragraph (c) is directly relevant to this appeal.
60. (1) The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts.
(2) In furtherance of its objects, the Council may
…
(c) make the inquiries and the investigation of complaints or allegations described in section 63; and
…
60. (1) Le Conseil a pour mission d'améliorer le fonctionnement des juridictions supérieures, ainsi que la qualité de leurs services judiciaires, et de favoriser l'uniformité dans l'administration de la justice devant ces tribunaux.
(2) Dans le cadre de sa mission, le Conseil a le pouvoir :
[…]
c) de procéder aux enquêtes visées à l’article 63;
[…]
[26] Section 62 authorizes the CJC to engage the services of others as it deems necessary for performing its functions, including the services of counsel to assist in the conduct of inquiries or investigations.
62. The Council may engage the services of such persons as it deems necessary for carrying out its objects and duties, and also the services of counsel to aid and assist the Council in the conduct of any inquiry or investigation described in section 63.
62. Le Conseil peut employer le personnel nécessaire à l’exécution de sa mission et engager des conseillers juridiques pour l’assister dans la tenue des enquêtes visées à l’article 63.
[27] Subsection 63(2) provides that the CJC may investigate any complaint or allegation made in respect of a federally appointed judge. Subsection 63(5) authorizes the CJC to prevent the publication of information arising from an investigation under this section, and subsection 63(6) permits an investigation to be held in public or private, unless the Minister of Justice requires it to be held in public.
63. (5) The Council may prohibit the publication of any information or documents placed before it in connection with, or arising out of, an inquiry or investigation under this section when it is of the opinion that the publication is not in the public interest.
(6) An inquiry or investigation under this section may be held in public or in private, unless the Minister requires that it be held in public.
63. (5) S’il estime qu’elle ne sert pas l’intérêt public, le Conseil peut interdire la publication de tous renseignements ou documents produits devant lui au cours de l’enquête ou découlant de celle-ci.
(6) Sauf ordre contraire du ministre, les enquêtes peuvent se tenir à huis clos.
[28] After the completion of an investigation, the CJC must report its conclusions to the Minister and may recommend that the judge be dismissed from office if it concludes that the judge is incapacitated or disabled from the due execution of the office of judge by, among other things, misconduct.
65. (1) After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister.
(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of
…
(b) having been guilty of misconduct,
…
the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.
65. (1) À l’issue de l’enquête, le Conseil présente au ministre un rapport sur ses conclusions et lui communique le dossier.
(2) Le Conseil peut, dans son rapport, recommander la révocation s’il est d’avis que le juge en cause est inapte à remplir utilement ses fonctions pour l’un ou l’autre des motifs suivants :
[…]
b) manquement à l’honneur et à la dignité;
[…]
[29] The statutory provisions establishing the disciplinary powers and process of the CJC are in addition to the existing powers to remove a judge from office.
71. Nothing in, or done or omitted to be done under the authority of, any of sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections.
71. Les articles 63 à 70 n’ont pas pour effet de porter atteinte aux attributions de la Chambre des communes, du Sénat ou du gouverneur en conseil en matière de révocation des juges ou des autres titulaires de poste susceptibles de faire l’objet des enquêtes qui y sont prévues.
[30] The CJC’s Procedures for Dealing with Complaints Made to the Canadian Judicial Complaints about Federally Appointed Judges (Ottawa: Canadian Judicial Council, approved 2002) (Complaints Procedures) puts some flesh on the skeletal statutory provisions about the process by which the CJC investigates complaints against judges. The Complaints Procedures were amended in 2010. However, since the 2002 version is the one relevant to this appeal, its terms are reproduced in these reasons.
[31] Section 3.2 of the Complaints Procedures describes the initial step after the CJC has received a complaint.
3.2 The Executive Director shall refer a file to either the Chairperson or a Vice-Chairperson of the Judicial Conduct Committee in accordance with the directions of the Chairperson of the Committee. The Chairperson or a Vice-Chairperson shall not deal with a file involving a judge of their court.
3.2 Le directeur exécutif transmet un dossier au président ou à un vice-président du comité sur la conduite des juges conformément aux directives du président du comité. Ni le président non plus que les vice-présidents ne doivent examiner un dossier mettant en cause un juge qui est membre de la même cour qu’eux.
[32] If the Chairperson does not summarily close the file on the ground that the complaint is, among other things, manifestly without basis or outside the jurisdiction of the CJC (paragraph 3.5(a)), the Chairperson may ask the complainant for more information or solicit comments from the judge against whom the complaint has been made (paragraphs 3.5(b) and (c)). Section 5.1 sets out the options available to the Chairperson after considering the responses to these requests. Paragraph 5.1(c) is directly relevant to this appeal.
5.1 The Chairperson shall review the response from the judge and the judge’s chief justice, as well as any other relevant material received in response to the complaint, and may
(a) close the file where:
(i) the Chairperson concludes that the complaint is without merit or does not warrant further consideration, or
(ii) the judge acknowledges that his or her conduct was inappropriate and the Chairperson is of the view that no further measures need to be taken in relation to the complaint; or
(b) hold the file in abeyance pending pursuit of remedial measures pursuant to section 5.3;
or
(c) ask Counsel to make further inquiries and prepare a report, if the Chairperson is of the view that such a report would assist in considering the complaint; or
(d) refer the file to a Panel.
5.1 Le président examine la réponse du juge et du juge en chef, de même que tout autre document pertinent reçu en réponse à la plainte. Il peut prendre l’une ou l’autre des décisions suivantes :
a) fermer le dossier dans l’un ou
l’autre cas suivant :
(i) il conclut que la plainte est dénuée de fondement ou qu’elle ne nécessite pas un examen plus poussé,
(ii) le juge reconnaît que sa conduite était déplacée et le président est d’avis qu’il n’est pas nécessaire de prendre d’autres mesures en ce qui concerne la plainte;
b) mettre le dossier en suspens en attendant l’application de mesures correctives conformément à l’article 5.3;
c) demander à un avocat de mener une enquête supplémentaire et de rédiger un rapport, si le président est d’avis qu’un tel rapport faciliterait l’examen de la plainte;
d) déférer le dossier à un comité
d’examen.
[33] Section 1 of the Complaints Procedures defines “Counsel” as follows.
"Counsel" means a lawyer who is not an employee of the Council;
« avocat » Un avocat qui n'est pas un employé du Conseil.
[34] Section 7 contains two provisions that apply when the Chairperson asks counsel to make further inquiries under paragraph 5.1(c).
7.1 If the Chairperson asks Counsel to make further inquiries under paragraph 5.1(c), the Executive Director shall so inform the judge and his or her chief justice.
7.2 Counsel shall provide to the judge sufficient information about the allegations and the material evidence to permit the judge to make a full response and any such response shall be included in the report of Counsel.
7.1 Si le président demande à un avocat de mener une enquête supplémentaire en vertu de l’alinéa 5.1c), le directeur exécutif en informe le juge et son juge en chef.
7.2 L’avocat fournit au juge suffisamment de renseignements sur les allégations formulées et les éléments de preuve qui s’y rapportent pour lui permettre de présenter une réponse complète à leur égard; toute réponse du juge est incorporée au rapport de l’avocat.
[35] If, after reviewing counsel’s report, the Chairperson decides to close the file on any of the grounds set out in section 5.1, the Executive Director must provide the judge with a copy of the letter informing the complainant that the file is closed (section 8.2).
[36] The CJC’s Policy contains further detail on the role of counsel when engaged by the Chairperson under paragraph 5.1(c) of the Complaints Procedure “to make further inquiries and prepare a report” to assist the Chairperson in considering a complaint. The provisions of that Policy relevant to this appeal are quoted in paragraph 15 of these reasons.
D. DECISION OF THE PROTHONOTARY
[37] Prothonotary Milczynski granted Mr Slansky’s motion to compel disclosure of the Friedland Report pursuant to rule 318 of the Rules as part of the administrative record of the CJC’s dismissal of his complaint, which he was challenging in an application for judicial review. She held that the relationship between the CJC and Professor Friedland was not that of solicitor and client because its stated purpose was investigative or “fact-gathering”, not the provision of legal advice.
[38] Consequently, she held that the report was not exempted from disclosure by legal advice privilege in so far as it was limited to its purpose, that is, fact gathering. However, she found that Professor Friedland had also gone on to provide legal analysis relevant to how the Chairperson should proceed with the complaint, including the allegation of bias. She ordered counsel representing the CJC on the motion to identify the portions of the report that constituted legal advice in order to assist the Court in determining how much should be redacted before disclosure.
[39] The Prothonotary also rejected the CJC’s claim for public interest privilege, on the ground that the non-disclosure of the report would both damage public confidence in the integrity of the complaints process and impede Mr Slansky’s right to have his application for judicial review conducted in a meaningful manner. She noted that there was no precedent for extending public interest privilege to the facts gathered in an investigation, and concluded that there was no evidence that disclosure would hamper the CJC’s investigative process.
E. DECISION OF THE FEDERAL COURT JUDGE
[40] Justice de Montigny granted the CJC’s motion under rule 51 to set aside the decision of the Prothonotary. On the claim for legal advice privilege, the Judge found that, in light of all the circumstances, a relationship of solicitor and client existed between Professor Friedland and the CJC. In this regard, it was a mistake to focus on a single document, such as the CJC’s Policy or the letter of engagement. He concluded (at para. 52) that the task of sorting out the facts relevant to the decision that the Chairperson had to make was “fundamentally a legal exercise”, and that the factual components of the report could not be severed. However, he ordered the disclosure of publicly available materials consulted by Professor Friedland, including 6,000 pages of trial transcript.
[41] The Judge rejected the protection of judicial independence as the basis for public interest privilege. However, he found that the public interest in safeguarding the integrity of the CJC’s informal investigative process warranted the non-disclosure of the report, especially since, in this case, Mr Sabourin’s letter to Mr Slansky gave sufficient information about the bases of the Chairpersons’s decision to inform him of the case he had to meet.
[42] Finally, he held that summary applications for judicial review are only converted into actions in exceptional circumstances, which did not exist here. Mr Sabourin had provided extensive information to Mr Slansky about the bases of the Chairperson’s decision. Moreover, even if it were possible for Mr Slansky to identify all those interviewed by Professor Friedland, it was unclear whether they could provide relevant evidence if summoned as witnesses at a trial.
F. ISSUES AND ANALYSIS
[43] The principal issue to be considered in these reasons is whether the Friedland Report is covered by the legal advice branch of solicitor-client privilege. Before addressing this question, I shall deal briefly with three other issues.
(i) standard of review
[44] Counsel for Mr Slansky argued that the Judge made an error of law by failing to apply a deferential standard of review to the Prothonotary’s decision on a question (the disclosure of the Friedland Report) that no one contended was vital to the final issue in the application for judicial review: see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.); Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450 at para. 18.
[45] For this reason, and because it was not suggested that the Prothonotary had misapprehended the facts, Justice de Montigny held (at para. 32) that her decision could be reversed only on
… a clear showing that it is wrong, in the sense that it rests upon a wrong principle
or a misunderstanding of the law.
[46] Counsel submitted that although Justice de Montigny had correctly formulated the applicable legal test for reviewing decisions of prothonotaries, he had in fact simply substituted his opinion for that of the Prothonotary on questions that were not pure questions of law or principle. I do not accept this argument.
[47] Justice de Montigny disagreed with the Prothonotary’s finding on the legal advice privilege issue that a solicitor-client relationship had not been established. He held that she had not considered all the circumstances relevant to this issue, including the nature of the task entrusted to Professor Friedland. Instead, she had focused too narrowly on the letter of engagement and the provisions of the CJC’s Policy on the role of counsel. Justice de Montigny also held that it was an error of law to sever the factual portions of a privileged communication. In my view, these are questions of law or principle on which a Prothonotary is not entitled to deference.
[48] As for the issue of public interest privilege, I view the error of principle that warranted the Judge’s intervention as the Prothonotary’s apparent insistence that the CJC had to adduce evidence that those interviewed by Professor Friedland would have been less forthcoming if they had known that his report would be disclosed in the course of judicial proceedings. The Prothonotary also attached virtually no weight to the additional resources that would be required if the CJC were forced to resort regularly to formal hearings before a panel, because the efficacy of its informal investigative process had been undermined by an inability to maintain the confidentiality of counsel’s report.
[49] In my view, the Judge did not err by failing to apply a deferential standard of review to the Prothonotary’s decision.
(ii) waiver
[50] A suggestion arose during argument before this Court that the CJC had waived any privilege that it might have with respect to the Friedland Report. The suggestion was based on the following statement in the Prothonotary’s reasons (at para. 31):
The Court was advised at the hearing of the motion that the CJC subsequently provided a copy of the Friedland Report to the Law Society of Upper Canada to be included in its investigation of the complaint filed by Justice Thompson against Mr Slansky, and that a further copy was sent to the Deputy Attorney General at the request of Justice Thompson for this purpose.
Nonetheless, the Prothonotary concluded that any disclosure to the Law Society for the purpose of its investigation of the complaint against Mr Slansky did not constitute a waiver of privilege because the CJC and the Law Society had a common interest in the due disposition of complaints
against those engaged in the administration of justice. She did not mention the further copy allegedly forwarded to the Deputy Attorney General.
[51] In addition, Mr Slansky stated in a supplementary affidavit, sworn on June 8, 2009 (Appeal Book, p. 341) that during a regulatory meeting of the Law Society in connection with the complaint against him, a lawyer had told him that Professor Friedland had said that Mr Slansky’s jury address in the murder trial was one of the best he had ever read. Because Professor Friedland had also said this to him during the interview, Mr Slansky inferred that the CJC must have made the report available to the Law Society for use in its disciplinary proceedings against Mr Slansky. However, this inference is not warranted because it is equally plausible that the lawyer had learned of this compliment during a conversation with Professor Friedland.
[52] These are the only indications in the record that the CJC might have disclosed the Friedland Report to the Law Society and to the Deputy Attorney General of Ontario. Mr Slansky appears not to have pursued the issue of waiver before Justice de Montigny, nor did counsel raise it in his memorandum of fact and law in the appeal to this Court. When it arose at the hearing in this Court as a result of questions from the Bench, counsel for the CJC consulted Mr Sabourin, and reported that Mr Sabourin had told him that he had no knowledge of any disclosure of the report. Counsel for Mr Slansky did not comment.
[53] In my view, there is insufficient evidence in the record to establish that the CJC had waived its privilege by providing copies of the report to either the Law Society or the Deputy Attorney General of Ontario.
(iii) conversion
[54] The conversion of the application into an action only arises as an issue in this case if the Friedland Report is privileged. Since the Prothonotary found that it was not, she did not have to decide this question.
[55] Having held the report to be privileged, Justice de Montigny was required to consider Mr Slansky’s request to convert his application for judicial review into an action under section 18.4 of the Federal Courts Act. Because his refusal to convert was discretionary in nature, it will only be set aside on appeal if it was either unreasonable in light of the facts or wrong in law.
[56] In his careful consideration of this issue (at paras. 86-94), Justice de Montigny correctly stated that a court should grant a request for a conversion “only in exceptional circumstances” (at para. 87). He inferred this from the text of subsection 18.4(1) which provides that applications “shall be heard and determined without delay and in a summary way”. The Federal Court’s discretion to convert an application into an action under subsection 18.4(2) is very much an exception to the general rule in subsection (1), as affirmed by the case law cited by Justice de Montigny (at paras. 88-89).
[57] He noted (at para. 90) that the only basis on which Mr Slansky relied to support the request for a conversion was that the facts relevant to his challenge to the CJC’s dismissal of his complaint could not be established by affidavit evidence, which could not make good the “various evidentiary gaps, inconsistencies, and factual issues”. However, Justice de Montigny held that any “gaps” were adequately filled by the detailed explanation of the Chairperson’s decision that Mr Sabourin had provided to Mr Slansky. Moreover, he said, if gaps existed, it was by no means clear that they could be filled by viva voce evidence, especially since Mr Slansky would not have access to the privileged report.
[58] Justice de Montigny concluded (at para. 93) that the key question was whether affidavit evidence would be inadequate for the fair disposition of the allegations made in the application for judicial review, and not whether trial evidence might be superior. Applying this test, he was not persuaded that the circumstances of this case justified converting the application into an action.
[59] This is the only issue on which counsel for the Attorney General took a position. Like the CJC, he supported Justice de Montigny’s decision that conversion was not appropriate.
[60] In my view, Justice de Montigny’s analysis contains no error warranting this Court’s interference with his exercise of discretion. In substance, much of counsel’s argument in this Court was designed to show that trial evidence was likely to be better than the affidavits. But that is not the test.
[61] Counsel for Mr Slansky relied heavily on Payne v. Ontario Human Rights Commission (2000), 192 D.L.R. (4th) 315 (Ont. C.A.). However, in my view, this case is not of much assistance to Mr Slansky since it concerned a different issue, to which a different test applied: whether the applicant was entitled to serve a Notice of Examination on the Commission’s registrar under Rule 39.03 of the Ontario Rules of Civil Procedure in order to obtain all the documents in the Commission’s possession relevant to the case.
[62] In any event, if the Friedland Report is privileged – and the issue of conversion only arises if it is – it could not be discovered in a trial. Further, Mr Slansky has been informed of the publicly available documents on which Professor Friedland relied and has been given a full explanation of the bases of the Chairperson’s decision.
[63] In these circumstances, I would not interfere with Justice de Montigny’s exercise of discretion to refuse to convert the application into an action.
ISSUE 1: Is the Friedland Report subject to solicitor-client privilege?
(i) introduction
[64] In considering the CJC’s claim for solicitor-client privilege for the Friedland Report, I have kept in mind the following four features of the privilege and of legal advice privilege in particular.
[65] First, solicitor-client privilege has two branches: litigation and legal advice privilege. The only branch claimed for the Friedland Report is legal advice privilege. This attaches to communications between solicitor and client for the purpose of obtaining or giving legal advice. It is the privilege of the client, not the lawyer.
[66] The rationale for legal advice privilege is that individuals who require the assistance of a lawyer must be able to disclose fully and frankly to the lawyer all the information that the lawyer requires in order to provide sound advice in a legal context: see, for example, Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574 at para. 9 (Blood Tribe).
[67] Without this guarantee of confidentiality, individuals may be unwilling to reveal all to their lawyer and, as a result, their ability to successfully assert their legal rights, or to discharge their legal duties, may be prejudiced, and the integrity of the administration of justice undermined: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at para. 2. Thus, the rule of law is the ultimate justification of the privilege: Three Rivers District Council v. Governor and Company of the Bank of England, 2004 U.K.H.L. 48 (Eng. H.L.) at para. 34.
[68] Second, the privilege extends not only to communications from client to lawyer, but also from lawyer to client, including a lawyer’s advice on legal issues on which she or he had been consulted by a public official or body in connection with the discharge of statutory responsibilities. Thus, for example, in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 (Pritchard), privilege was successfully claimed for a legal opinion provided by in-house counsel, on which the Commission had relied in deciding not to exercise its statutory power to refer a complaint of discrimination to adjudication.
[69] It follows from the rationale for legal advice privilege that it does not protect the confidentiality of communications by third parties to a lawyer, at least when the third party was not acting on behalf of the client: General Accident Assurance Co. v. Chrusz (1999) 180 D.L.R. (4th) 241 (Ont. C.A.) at paras 120-22 (per Doherty J.A.) (Chrusz); College of Physicians and Surgeons of B.C. v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665, 9 B.C.L.R (4th) 1 at paras. 45-58 (College of Physicians and Surgeons of B.C.).
[70] Hence, any discussion in the report of statements made in confidence to Professor Friedland by those he interviewed is not covered by legal advice privilege. Whether public interest privilege applies is, however, another matter.
[71] Third, when legal advice privilege for a communication has been established on the facts of a given case, and none of the limited exceptions apply (on which, see Adam M. Dodek, “Reconceiving Solicitor-Client Privilege” (2009), 35 Queen’s L.J. 493 at 514-16), the privilege is “as close to absolute as possible” and, once established, “does not involve a balancing of interests on a case-by-case basis”: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at para. 35. In this latter respect, legal privilege differs from public interest privilege. I would also add that, if a communication is found to be privileged, it is not for the Court to opine on the wisdom of the decision to make the claim.
[72] The search for truth in litigation should not be taken to be the one “true” principle, to which claims for the confidentiality of a communication on the basis of solicitor-client privilege are subsidiary and “a necessary evil to be tolerated only in the clearest of situations”: Chrusz at para. 67. Rule 317 and 318 are not a statutory abrogation of solicitor-client privilege: Pritchard at paras. 32-36.
[73] Fourth, legal privilege is based on the class to which the communication belongs, not on the content of that communication. Thus, once it is established that a communication falls within the definition of the scope of the privilege, the court does not consider the content of the doc