Slansky v. Canada (Attorney General)

Slansky v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-12-13
Neutral citation
2011 FC 1467
File numbers
T-716-06
Notes
Reported Decision
Decision Content
Date: 20111213
Docket: T-716-06
Citation: 2011 FC 1467
Ottawa, Ontario, December 13, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
PAUL SLANSKY
Applicant
and
ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN
Respondents
and
CANADIAN JUDICIAL COUNCIL
Intervener
REASONS FOR ORDER AND ORDER
[1] This is an appeal pursuant to Rule 51 of the Federal Courts Rules, SOR/98-106 [Rules] of a decision of Prothonotary Milczynski dated April 19, 2011, whereby she ordered the Canadian Judicial Council (“CJC” or “Council”) to produce portions of a report in which it alleges the existence of various privileges.
[2] The issues raised in this appeal are vitally important for the conduct of investigations by the CJC into complaints or allegations made in respect of a judge of a superior court. The gist of the debate is whether the report prepared by counsel appointed by the CJC to make further inquiries into the complaint should be kept confidential or ought to be produced (in whole or in part) to form part of the record for the purposes of Rule 317 of the Rules, in the context of an application for judicial review.
[3] For the reasons that follow, I am of the view that the Prothonotary’s decision must be quashed. I find that she erred in finding that only the legal recommendation portion of the report prepared by Professor Friedland is protected by the solicitor-client privilege, and that the public interest privilege does not otherwise apply. Finally, I am also of the view that this application for judicial review does not warrant conversion into an action.
1. The Facts
[4] Paul Slansky is a barrister and solicitor in the Province of Ontario. He was called to the Bar in 1986, and has been a sole practitioner for most of his career. His practice has focused on criminal law, and he was involved in a number of murder cases.
[5] Mr. Slansky acted as defence counsel for the re-trial of an accused charged with first degree murder. At the end of his first trial in 1996, the accused was found guilty, but his conviction was overturned by the Court of Appeal and a new trial was ordered (R v Baltrusaitis (2002), 162 CCC (3d) 539, 58 OR (3d) 161 (ONCA)). It is in the context of the second trial, presided over by the Honourable Justice Thompson, that the incidents giving rise to the complaint to the CJC took place. This second trial, which ended in an acquittal, was quite complex and lengthy: there were 40 days of pre-trial motions, a mistrial because the jury became tainted, and the trial proper which had to be moved from Walkerton to Owen Sound and which lasted 130 days.
[6] Early on in the re-trial, it became clear that both Mr. Slansky and Justice Thompson took exception to each other’s conduct. They both filed a complaint before their respective regulatory bodies. In the case of Mr. Slansky, the Law Society of Upper Canada decided that the matter should not be the subject of discipline or proceed to a hearing, and the file was closed. The complaint filed against Justice Thompson warrants further discussion.
[7] On August 12, 2004, Mr. Slansky filed a complaint against Justice Thompson. In a 16 page letter, he alleged serious misconduct, including bias, improper motive, abuse of office and knowingly acting contrary to the law.
[8] Given the complexity of some of the legal and other issues involved in the complaint, the Chairperson of the Judicial Conduct Committee, Chief Justice Scott of Manitoba, retained Professor Martin L. Friedland, a law professor at the University of Toronto, to conduct further inquiries and prepare a report (the “Friedland Report” or “Report”). In his letter confirming his appointment, Mr. Norman Sabourin, Executive Director and General Counsel of the CJC, quoted the following excerpt from the Policy of the CJC with respect to counsel retained in judicial conduct matters:
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. 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. Such Counsel acts on the instructions of the Chairperson or the Panel.
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.
[9] In his affidavit filed as part of the motion record of CJC before the Prothonotary, Mr. Sabourin states that Counsel reviewed the minutes, transcripts and recordings of the proceedings, as well as Justice Thompson’s numerous substantive and procedural rulings. Counsel also interviewed several individuals familiar with the criminal matter, including Mr. Slansky, Justice Thompson, three Crown counsel, the Regional Director of Crown Attorneys, seven members of court staff and Regional Senior Justice Bruce Durno.
[10] Upon concluding his inquiries, Professor Friedland reported on his findings and analysis. In his report, he reviewed the material evidence and made recommendations and provided advice to the Chairperson with respect to his adjudicative functions and with respect to the CJC’s mandate regarding judicial conduct generally. Interestingly, the cover of the Report indicates that the document is confidential and subject to solicitor-client privilege. This would tend to confirm Mr. Sabourin’s statement in his affidavit (at para 27) that his expectations and those of the Chairperson are that Mr. Friedland’s report would constitute legal advice.
[11] Upon review of the Report, the Chairperson determined that the complaint did not warrant further investigation as it did not establish misconduct on the part of Justice Thompson. On March 9, 2006, Mr. Sabourin wrote to Mr. Slansky on behalf of the Chairperson, providing lengthy and detailed reasons for dismissing his complaint.
[12] On April 18, 2006, Mr. Slansky applied for a judicial review of the CJC’s decision. He sought a declaration that: i) the CJC refused to exercise its jurisdiction and conducted a flawed, faint, and anemic investigation; ii) the CJC erred in law in its interpretation of Justice Thompson’s conduct; iii) the CJC exceeded its jurisdiction by passing erroneous and flawed judgment on the Applicant’s conduct at trial, as defense counsel, as justification for the judge’s sanctionable conduct; and that iv) the complaint mechanism of the CJC, of having judge judging judges’ misconduct, is unconstitutional and of no force and effect and gives rise to a reasonable apprehension of institutional bias, and constitutes a breach of the Applicant’s rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, being Schedule B to the Canada Act (UK), 1982, c 11. He also sought an order quashing the decision of the CJC and returning the matter back to the CJC to re-conduct its investigation and review, in accordance with the direction of the Court.
[13] For the purposes of his proceeding, Mr. Slansky wrote to the CJC and sought the production of all documents with respect to the complaint investigation and the decision of the CJC with respect to the complaint, as well as the CJC’s entire file dealing with the decision to close the file regarding the complaint. The CJC provided the record, with the exception of certain documents, including the Friedland Report. The CJC opposed the production of that report on the basis that it was protected by both solicitor-client and public interest privileges.
[14] It is as a result of this response that Mr. Slansky brought a motion in which he sought an order to convert his judicial review application into an action or, alternatively, an order compelling the CJC to produce the Friedland Report in its entirety. On April 19, 2011, Madam Prothonotary Milczynski granted the motion in part, ordering the CJC to file a copy of the Friedland Report and to indicate on the copy those portions that should be redacted because they contain legal advice (Slansky v Canada (Attorney General), 2011 FC 476 (available on CanLII) [Slansky]).
2. The Impugned Decision
[15] At the hearing, Mr. Slansky’s submissions focused on the alternative argument, that is, whether the CJC should be compelled to release the Friedland Report as contemplated by Rule 317 of the Rules. As a result, the Prothonotary framed the issue as being “whether, as the CJC submits, the engagement of Professor Friedland gave rise to a solicitor-client relationship, and/or the information sought to be produced is protected by public-interest privilege” (Slansky, above at para 23). Having found that only the portions of the Report that constitute legal advice are protected by solicitor-client privilege and should be redacted, she decided that it was not necessary to address the issue of converting the application for judicial review into an action (Slansky, above at para 2).
[16] First, the Prothonotary declared that the essential elements in determining whether the Friedland Report ought to be produced lie in the terms of Professor Friedland’s engagement and in the description of the role and function of counsel retained by the CJC in the conduct of inquiries under paragraph 5.1(c) of the Council’s Complaints Procedures. She noted that the terms of the engagement letter indicate the relationship between the CJC and Counsel is not intended to create a solicitor-client relationship and that the stated purpose of the engagement is not to provide legal advice. Accordingly, she found that Mr. Friedland was retained as a “skilled investigator” and a fact-gatherer.
[17] She acknowledged the CJC’s concerns that if assurances of confidentiality are not given to persons being interviewed, they may feel vulnerable or wary that a proper working professional or supervisory relationship would be compromised, and may not be as candid as they would if confidentiality is the rule. This, in turn, could prompt the CJC to take the route of a formal investigation by way of a panel, where evidence under oath is compelled, to ensure that the information obtained is fulsome and reliable. While these are understandable practical considerations, given the constraints of the Judges Act, RSC 1985, c J-1, as to how the CJC receives and investigates complaints, they are not determinative of the issue on the motion, which is whether the engagement of Professor Friedland gave rise to a solicitor-client relationship and/or whether the information sought to be produced is protected by public interest privilege. Sections 63 through 65 of the Judges Act have been reproduced in the Annex, for ease of reference.
[18] The Prothonotary then turned to the solicitor-client privilege. After having reviewed the essential features of that privilege, she considered the CJC’s argument that in addition to fact-gathering, Professor Friedland was instructed to provide a lawyer’s analysis and recommendations, and that it was indeed the expectation of CJC that the report would be confidential and would constitute legal advice. Having examined the Report carefully, the Prothonotary found that Professor Friedland provided more than facts and offered some legal analysis and advice. This did not constitute unsolicited legal advice, however, since Mr. Sabourin made it clear in his affidavit that persons engaged as counsel are instructed “to provide a lawyer’s analysis and recommendations in respect of those allegations” of misconduct for consideration by the Chairperson of the Judicial Conduct Committee.
[19] While the Prothonotary was prepared to accept that the legal recommendation portion of the Report does attract the solicitor-client privilege, it did not entail, in her view, that the entirety of the Report ought to benefit from the same privilege. Prothonotary Milczynski stated the following about that crucial distinction:
[30] However, that part of the Friedland Report attracts solicitor-client privilege does not mean that the entirety of the report should be withheld on the grounds of privilege. As noted in Blank v Canada (Minister of Justice) (2007), 280 DLR (4th) 540 (FCA), it is possible to sever the “fact-gathering” investigative work product prepared by “Counsel” where Professor Friedland sets out the facts of what happened at the trial and his interviews with individuals with knowledge for the purposes of clarifying the allegations. These facts are separate and distinct from the advice given on legal issues that is privileged. In this regard, at the hearing of the motion the matter of possible redaction was discussed (to the extent solicitor-client privilege was not found to have been waived). The report could have those portions redacted, a suggestion that was, however, rejected by the CJC. Nonetheless, this manner of proceeding is appropriate in the circumstances. The facts gathered by Professor Friedland in his role as “Counsel” regarding the trial and for clarification of the allegations cannot be withheld simply because another part of the report deals with legal issues and advice about them. It is appropriate instead to redact the legal advice in the report, and by way of example, such redaction would include the portion of the report from the middle of page 23 to the end of page 30.
Slansky, above at para 30.
[20] The Prothonotary then dealt with Mr. Slansky’s argument that to the extent that all or part of the Friedland Report was protected by solicitor-client privilege, the CJC must be deemed to have waived this privilege due to third party disclosure. She observed that the CJC had provided a copy of the Report to the Law Society of Upper Canada to be included in its investigation of the complaint filed by Justice Thompson against Mr. Slansky. She also noted that a further copy was sent to the Deputy Attorney General at the request of Justice Thompson for this purpose. In her view, though, the CJC and the LSUC have a similar mandate and a common goal in investigating complaints of misconduct, particularly in a case where complaints were filed against both judge and counsel in the same proceeding. For that reason, she was of the view that Mr. Slansky’s argument was untenable due to the common interest of these regulatory bodies in the proper disposition of the complaints.
[21] The Prothonotary then considered the CJC’s argument that what is not protected by solicitor-client privilege otherwise benefits from a public interest privilege. The public interest identified by the CJC in support of its argument is the concern that, without assurances of confidentiality, it could be difficult to obtain complete, reliable and candid information about a judge against whom a complaint has been filed. She also took into consideration CJC’s assertion that judicial independence could be compromised if a judge’s state of mind during the deliberative or decision-making process were to be made public. However, she was not convinced by those arguments, and observed that no evidence was put forward that people who were interviewed for the Friedland Report would not have been as forthcoming had they known that their information might become public. She also stressed that the CJC can always resort to a formal inquiry with the attendant power to compel witnesses under oath, if it feels that an informal investigation did not produce reliable and comprehensive evidence.
[22] The following paragraph captures the essence of the Prothonotary’s reasoning on this issue:
[38] I am satisfied that there is a public interest in knowing how the CJC deals with complaints against judges to ensure the public has confidence in the integrity of the process, and to also ensure that the application for judicial review can be conducted in a meaningful way. I cannot conclude that disclosure of the facts would so impair this or future investigations of complaints against members of the judiciary. The fact that a complaint had been made was not in and of itself secret, and it would be no secret necessarily as to who would be sought out by Counsel for information. In any event, to the extent there is such concern, counsel for the Applicant made a suggestion at the hearing of the motion that names might be redacted or to the extent it was applicable, Rule 151 of the Federal Courts Rules might be engaged on a further motion to seal any particularly sensitive information. This suggestion was also rejected by the CJC at the hearing, but remains an option that may be pursued on further motion if necessary, at a later date.
Slansky, above at para 38.
[23] For all the foregoing reasons, the Prothonotary ordered the CJC to file a copy of the Friedland Report, indicating on the copy those portions that are to be redacted in accordance with her reasons. Once finalized by the Court, the redacted Report was then to be produced and to form part of the record for the purposes of Rule 317 of the Rules.
3. The Statutory Regime
[24] The CJC is a statutory body created by s. 59 of the Judges Act. It consists of the Chief Justice of Canada and all chief justices and associate chief justices of the superior courts of Canada. The CJC is mandated to make inquiries into and investigate complaints made in respect of federally appointed judges (s. 60(2)(c)).
[25] There are two methods by which complaints are considered by the CJC. Under subsection 63(1) of the Judges Act, the Minister of Justice of Canada or the Attorney General of a province may request the Council to commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). Under subsection 63(2), “the Council may investigate any complaint or allegation made in respect of a judge of a superior court”.
[26] In conducting an inquiry or investigation, the CJC is deemed to be a superior court and has the power to summons witnesses to give evidence under oath (s. 63(4)). The CJC may prohibit the publication of any information or documents arising out of an inquiry or investigation where it deems such disclosure is not in the public interest (s. 63(5)). The CJC may also hold an inquiry or investigation in private, unless the Minister requires that it be held in public (s. 63(6)). Upon completing an inquiry or investigation, the CJC may recommend that a judge be removed from office on the basis that he or she has become incapacitated or disabled from the due execution of office, or in the alternative, the CJC may make no recommendation (s. 65).
[27] The CJC has passed the “Complaints Procedures”, which govern the investigation of complaints. The relevant portion of these procedures can be found in the Annex to these reasons. Upon receipt of a complaint, and following review of the judge’s comments and those of his or her chief justice, the Chairperson may “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” (s. 5.1(c)). Upon review of Counsel’s report, the Chairperson may dismiss the complaint, hold the file in abeyance pending pursuit of remedial measures, or refer the complaint to a formal panel (s. 8.1). The use of Counsel represents a summary process for screening complaints which is an alternative to referring them directly to a formal panel for consideration. As noted in Cosgrove v Canadian Judicial Council, 2007 FCA 103 at para 77, [2007] 4 FCR 714, this screening process “permits the early resolution of a complaint by remedial measures, without the establishment of an Inquiry Committee”.
4. The Issues
[28] This appeal raises the following issues:
a) What is the applicable standard of review?
b) Did the Prothonotary err in law in ruling that the Report in its entirety is not protected by solicitor-client privilege?
c) Did the Prothonotary err in law in her ruling that the Report is not protected by public interest privilege?
d) In the event that the Prothonotary’s Order is set aside and the Friedland Report is not ordered to be produced, should the application for judicial review be converted into an action pursuant to s. 18.4(2) of the Federal Courts Act, RSC 1985, c F-7?
[29] It is important to take notice that the Respondent Attorney General of Canada took part in this appeal only to oppose the Applicant’s motion to convert his application into an action. Counsel for the Attorney General did not take any position with respect to the first three questions and essentially relied on her submissions before the Prothonotary with respect to the fourth one.
5. Analysis
a) The standard of review
[30] It is settled law that a judge of this Court must show deference to a prothonotary’s decision, much like courts of appeal do when called upon to assess trial judges’ discretionary decisions. Such deference must be shown, and the decision of the prothonotary ought not be disturbed on appeal, unless: “(a) the questions raised in the motion are vital to the final issue of the case, or (b) the orders are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts” (Merck & Co v Apotex Inc, 2003 FCA 488 at para 19, [2004] 2 FCR 459 [Apotex]. (See also, R v Aqua-Gem Investments Ltd, [1993] 2 FC 425 (FCA) at para 95 (available on CanLII)).
[31] In the case at bar, the questions raised in the Intervener’s motion are clearly not vital to the outcome of the judicial review. The Prothonotary made an interlocutory Order for the production of a redacted copy of the Friedland Report. This Order does not in any way dispose of the ultimate question to be decided on the application for judicial review, which is whether the CJC (through Chief Justice Scott) made a reviewable error in dismissing the complaint of Mr. Slansky. As the Federal Court of Appeal pointed out in Apotex, above at para 22, this first prong of the test must be applied stringently if we are to give effect to the intention of Parliament in creating the office of prothonotary. Far from being a mere “rest stop along the procedural route to a motions judge”, as the Court of Appeal stated in Apotex, above, the prothonotaries are there to promote the efficient performance of the work of the Court. The Order of Prothonotary Milczynski was clearly meant to advance the proceedings and not to pre-empt the final decision to be made. To that extent, it is entitled to deference.
[32] Neither party suggested that the decision of the Prothonotary was premised on a misapprehension of the facts. Therefore, the only basis upon which the Prothonotary’s Order ought to be disturbed is a clear showing that it is wrong, in the sense that it rests upon a wrong principle or a misunderstanding of the law.
b) The solicitor-client privilege
[33] There is no debate between the parties as to the nature and extent of the solicitor-client privilege. It finds its roots in the 16th century, and was then predicated on the oath of honour of the solicitor that compelled him to keep his client’s secrets (see, Alan W. Bryant, Sidney N. Lederman & Mickelle K. Fuesrt, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed (Canada: LexisNexis Canada Inc, 2009) at para 14.42 [Sopinka, Lederman and Fuerst, The Law of Evidence in Canada]).
[34] By the 18th century, the rationale for the privilege had evolved, and became the ascertainment of truth. It is now well established that the solicitor-client privilege is essential to the proper functioning of our legal system. The complexity of the law requires professional expertise, and legal advice is only as good as the factual information upon which it is based. As Justice Cory put it in Smith v Jones, [1999] 1 SCR 455 at para 46 (available on CanLII):
Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step. [Emphasis added]
See also, to the same effect: Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44 at para 9, [2008] 2 SCR 574 [Blood Tribe].
[35] Solicitor-client privilege was first conceived as a rule of evidence and was considered to be a mere testimonial privilege which could only be asserted at trial. Recent decisions, however, have departed from this position and acknowledge that it must now be regarded as a rule of substance whose role goes much beyond shielding protected materials from being tendered in evidence in judicial proceedings. It extends to cover any consultation for legal advice and is no longer restricted to communications exchanged in the course of litigation. As Justice Binnie stated, in Blood Tribe, above at para 10, on behalf of a unanimous Court:
10. (…) While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SDD 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8. A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v. Campbell, [1999] 1 S.C.R. 565. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “as close to absolute as possible to ensure public confidence and retain relevance” (McClure, at para. 35).
[36] Considering the high public interest in protecting the communications between a solicitor and his or her client, it is not surprising that the privilege has been found to be almost absolute. Indeed, courts have been loath to interfere with this privilege, and have done so only in the most exceptional circumstances. Such will be the case where the communications between a party and his or her legal adviser are criminal in nature or are made with a view to obtaining legal advice to facilitate the commission of a crime, or where adherence to the rule would have the effect of preventing the accused from making full answer and defence (See, for example: R v Campbell, [1999] 1 SCR 565 at paras 55, 65 (available on CanLII) [Campbell]).
[37] To give effect to the importance of solicitor-client privilege in the administration of justice, the Supreme Court of Canada in Solosky v The Queen, [1980] 1 SCR 821 at p 835 (available on CanLII) [Solosky], endorsed the following broad definition for solicitor-client privilege found in Wigmore on Evidence (McNaughton rev. 1961, para 2292):
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.
[38] Where solicitor-client privilege is found, it encompasses a broad range of communications between lawyer and client:
The privilege, once established, is considerably broad and all-encompassing. In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.
Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 16, [2004] 1 SCR 809 [Pritchard].
[39] Such a broad protection is in keeping with the class nature of solicitor-client privilege, as described by the Supreme Court in R v National Post, 2010 SCC 10 at para 42, [2010] 1 SCR 477:
In a class privilege what is important is not so much the content of the particular communication as it is the protection of the type of relationship. Once the relevant relationship is established between the confiding party and the party in whom the confidence is placed, privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation. […] Anything less than this blanket confidentiality, the cases hold, would fail to provide the necessary assurance to the solicitor’s client or the police informant to do the job required by the administration of justice. […]
[40] Quite understandably, counsel for the CJC put a lot of emphasis on the breadth of the protection afforded by the privilege, and stressed that it encompasses a wide range of communications between a solicitor and his or her client. As a result, it is argued that the Prothonotary was in error when she found that the factual part of the Friedland Report does not attract solicitor-client privilege and can be severed from its legal findings and opinions.
[41] Before we reach that point, however, the solicitor-client relationship must be established. The mere fact that a communication takes place between a lawyer and another person, or that “solicitor-client” is stamped on a document, does not necessarily mean that a genuine solicitor-client relationship arose. In particular, this will be the case in the corporate or government context, where “in-house” counsel may have multiple responsibilities and may be called upon to provide advice that is foreign to their legal training or expertise. Each situation must therefore be assessed on a case-by-case basis to determine if the circumstances warrant the existence of the privilege. The test is functional in nature: whether or not solicitor-client privilege attaches to a particular situation will depend on “the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered” (Campbell, above at para 50; Pritchard, above at para 20).
[42] In other words, the party seeking to assert the privilege has the burden of proving: 1) a communication between solicitor and client; 2) which entails the seeking and giving of legal advice; and 3) which is intended to be confidential by the parties. (See, Solosky, above at p 837; Pritchard, above at para 15). I will now turn to these requirements, as they apply to the case at bar.
[43] In a nutshell, counsel for Mr. Slansky made the following submissions. First, it is contended that the CJC had no legal obligation to retain legal counsel in disposing of the complaints; while it may have been preferable to have somebody with legal training, it did not have to be a member of the Bar. The person retained to investigate could have been a retired judge, or a university professor who is not a member of any law society. The CJC could not suppress the factual content of the record simply by hiring a lawyer to compile the facts as an investigator. Second, and closely related to this first argument, it is submitted that Professor Friedland was hired to investigate and gather the facts, similar to a police officer investigating a criminal allegation. The fact that Professor Friedland strayed beyond this role and offered legal advice does not detract from his mandate and cannot cloak his report with solicitor-client privilege.
[44] It is true that when one looks at the engagement letter of Professor Friedland and at the policy with respect to counsel retained in judicial conduct matters as quoted in that letter, the role of counsel appears to be essentially that of a “fact-finder”. Not only is there no mention of any advisory role, but nowhere is it mentioned that counsel is to provide legal advice or to perform any analysis of a legal nature. To the contrary, his role in conducting further inquiries pursuant to 5.1(c) of the Complaints Procedures is described as “simply to attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations”. On that basis alone, there is no doubt that the solicitor-client privilege would not attach to the relationship between counsel and the CJC.
[45] Counsel for the CJC emphasized that this language is aimed at preventing the usurpation by counsel of the Chairperson’s determination of the matter. Relying on the administrative law principle of delegatus non potest delegare, it is said that the integrity of the decision-making process has to be preserved, and that the policy is meant to reflect and to stress that the final determination is made by the Chairperson on behalf of CJC, and not by counsel appointed to inquire into the complaint.
[46] While this is undoubtedly an interesting explanation, it is not entirely compelling. Counsel could be tasked with the responsibility to inquire into the facts and to provide a legal analysis and even recommendations without straying into forbidden territory. There would be no harm in stating that the role of the Chairperson is to determine, on the basis of all the relevant evidence and with the benefit of legal advice, whether there is a basis to refer the file to a panel. If this is indeed what counsel is retained to do, transparency would require that it be stated explicitly. As long as Counsel is not merely an extension of the Chairperson and that his report is not meant to be blindly rubber stamped, there is nothing wrong with the Chairperson seeking and obtaining legal advice in fulfilling his or her task.
[47] That being said, I do not think that this flaw is fatal to the position advanced by the CJC. It must be remembered that in order to determine whether the solicitor-client privilege attaches to a particular situation, one must not focus on any particular document, be it the retaining letter, but rather to the circumstances as a whole. From that perspective, the position of the CJC is more convincing. The intention of the parties cannot be inferred exclusively from the engagement letter; when one looks at the nature of the relationship between the CJC and Professor Friedland, as well as the circumstances in which the report was sought and rendered, the conclusion that a solicitor-client relationship was established is inescapable.
[48] First of all, it is the uncontradicted evidence of the CJC that its expectation in asking Professor Friedland to conduct “further inquiries” under paragraph 5.1(c) of the Complaints Procedures was that he would provide legal advice. The Executive Director and General Counsel of the CJC, Mr. Norman Sabourin, who approached Mr. Friedland in the first place and wrote the engagement letter, states the following in his affidavit:
26. Counsel are instructed to gather information about the allegations surrounding the complaint and to provide a lawyer’s analysis and recommendations in respect of those allegations, for consideration by the Chairperson of the Judicial Conduct Committee. […]
27. My expectations, and those of the Chairperson, in relation to mandate given to Counsel in conducting further inquiries, is that Counsel’s report will 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. […]
Applicant’s Motion Record, at p 211.
[49] It appears that Professor Friedland was also of the view that he was hired as a lawyer and to provide legal advice in the broad sense of the term. This can be gathered from the fact that the first page of his report is stamped with the notation “This document is CONFIDENTIAL and subject to SOLICITOR-CLIENT PRIVILEGE”. This is further borne out by the fact that his report his replete with legal analysis and advice, to which I shall deal with shortly. It would appear, therefore, that both parties were of the view that the advice sought and provided was confidential and not to be disclosed.
[50] As previously mentioned, counsel for Mr. Slansky submitted that it was not essential for an investigator to have legal expertise, since the task envisaged was simply to collect and report on the facts. Counsel conceded that it was helpful to have training in the law, but added that one does not have to be a member of the Bar to fulfill that requirement.
[51] In my view, the prescription in the Complaints Procedures that further inquiries must be performed by outside counsel who is a lawyer, makes perfect sense, in light of the task at hand. The crucial role of the CJC and its Judicial Conduct Committee is to determine whether the conduct of a judge which is the subject of a complaint amounts to misconduct. This role would also include warranting a recommendation to the Minister that a judge be removed from office pursuant to ss. 65(2) of the Judges Act, or whether it pertains to errors of law that are better left to the judicial process through an appeal.
[52] I agree with counsel for the CJC that for an investigator to be able to “attempt to clarify the allegations against the judge and gather evidence which, if established, would