Section 23: Questions

Section -- 23
Exemption:

The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor/client privilege.

Statement of Test to be Met

Solicitor/client privilege preserves the confidentiality of communications between a client and a lawyer.

  • in the course of providing legal advice
  • during or in contemplation of litigation
Relevant Questions Departmental Response Assessment

Does the record consist of a communication between a lawyer and his client?

Is the purpose of the communication to provide the client with legal advice?

What is the subject matter of the legal advice?

Does the record consist of a communication between a lawyer and a third party?

What is the purpose of this communication?

Is the purpose of the communication to prepare for existing or contemplated litigation?

   
 
Statement of Test to be Met
  • Communication must be to and from a lawyer
Relevant Questions Departmental Response Assessment

Who is the author of the record?

If the record provides legal advice, was the author a lawyer?

  • employed by the Department of Justice
  • employed elsewhere
    • if employed elsewhere was this lawyer retained to provide legal advice to the government? (see below)

Is this lawyer called to the Bar of a province of Canada or a member of the Board of Notaries in Quebec?

  • If not, has the communication been provided to a lawyer?

  • for purposes of pending or contemplated litigation

If these conditions are not met, section 23 exemption does not apply.

   
 
Statement of Test to be Met

Communication must be for the purpose of obtaining or giving legal advice

Does NOT include:

  • policy Advice
  • factual Analysis
  • historical or other research
  • status reports on existing litigation
  • legal bills
Relevant Questions Departmental Response Assessment

If the communication is to a lawyer, is it for the purpose of obtaining legal advice?

  • What legal advice is sought?

If the communication is from a lawyer, is it to a client for purposes of giving legal advice?

  • What legal advice is given?

Does the advice given consist of a legal opinion?

Does it consist of advice about the application of legislative provisions or regulations in a particular situation?

Does it advise the government institution how to resolve a conflict arising pursuant to a statutory or regulatory provision?

Does it describe the legal obligations of a government institution?

Does it describe legal obligations or entitlements of third party to deal with the government institution?

What is the legal issue raised by the communication?

Is there a letter of retainer or request for advice which sets out the legal advice sought?

  • ask to review the retainer letter or request for advice

Is the lawyer providing the advice employed in a legal advisory position?

  • in legal services
  • by the Department of Justice

Is the lawyer providing the advice employed or practising law from outside of the government?

  • ask to see the retainer letter to assess whether the advice sought is legal in nature

Is the lawyer providing the advice employed in a policy assessment job?

Has the lawyer been asked for advice on policy as opposed to legal issues?

Does the communication contain legal analysis ?

  • where?

Does the communication consist of a factual, as opposed to legal, analysis?

Does the record apply any legal standards to the factual analysis?

Are legal issues intertwined with the factual analysis?

Does the record consist of a factual analysis with a factual conclusion?

  • if so, section 23 will likely not apply

Does the record consist of historical or policy research?

What is the purpose of this research?

Was this research conducted in preparation for existing or contemplated litigation?

  • ask to see any memoranda requesting that the research be done to assess whether it was performed for purposes of litigation

If the purpose of the historical research was not to support litigation, how has the report been used by the government institutions?

If the report has been used to set factual criteria for entitlements under a statute, was any legal analysis applied to determine whether the entitlement exists?

  • if not, section 23 likely does not apply

Does the record compile or report on the status of existing litigation?

  • if so, does the record contain any legal analysis about the outcome or status of the litigation?

Is the information reported available on public court files?

  • if so, section 23 likely does not apply

Does the record consist of an account for legal services?

  • if so, is the content of any legal strategy or advice contained in the account?

Have the commercial aspects of the account been severed and disclosed?

   
 
Statement of Test to be Met

Communication must be for purpose of advising a client about a particular matter

  • articles or bulletins for general circulation not included
Relevant Questions Departmental Response Assessment

What government institution requested the legal advice contained in the record?

Does the record consist of legal advice about a particular matter?

Does the record consist of legal interpretation of a general nature?

Was the record circulated on a general basis throughout the government?

What was the purpose of this general circulation?

Was the purpose of the general circulation to provide legal advice about a particular matter to the government as a whole?

  • what is the particular matter about which the advice was provided?

Was the record designed to explain, on a general basis, how a statutory provision works?

Is the record a manual or guideline?

  • i.e., Treasury Board Guidelines
  • i.e., Department of Justice Manuals on the Charter
  • these should be disclosed because they are not legal advice about a particular matter

See above for questions/reports on the status of pending litigation.

If the client department did not specifically request the advice, would the advice from the lawyer be expected in the ordinary course of operations?

Is the lawyer employed in legal services at the government institution or retained on a general basis by the government institution?

  • if retained from outside the government, ask to see the retainer letter to assess the nature of advice being provided

Does the record consist of a legal article or paper?

Was the paper presented within the government?

What degree of circulation did the paper get?

Has the paper or article been published?

  • if so, section 23 like does not apply
   
 
Statement of Test to be Met

Litigation Privilege:

  • communication must be for purposes of conducting litigation
  • must be a reasonable prospect of litigation
Relevant Questions Departmental Response Assessment

Is a litigation privilege claimed with respect to the record?

Was the communication for purposes of conducting litigation?

What is the status of the litigation?

  • has it been commenced?

Has the litigation terminated?

  • if so, when did it terminate?

If the litigation has not been commenced, is litigation contemplated?

On what basis has the government institution concluded that litigation will take place?

What kind of litigation is contemplated?

  • in Court
  • challenges to tribunals
  • proceedings before tribunals

If internal proceedings or reviews are being conducted, does the record contain legal advice sought in connection with those proceedings?

  • if so, privilege will apply to the legal advice sought

Was the document prepared in contemplation of the internal proceedings?

  • if so, was the document prepared in order to assist the solicitor to provide advice in connection with the proceedings?

If it was prepared for the assistance of the decision-maker, as opposed to the lawyer, what is the basis for the claim of solicitor/client privilege?

  • section 23 likely does not apply in these circumstances

If litigation has not been commenced, has the government institution received or sent demand letters?

  • ask to see these

Have any responses been sent or received?

  • ask to see these to assess whether litigation is a reasonable prospect

If the communication is with a third party, was it for the purpose of preparing for litigation?

Does it consist of an opinion by an expert?

Was this opinion sought in the context of current or contemplated litigation?

  • check the applicable date
  • ask to see the request for the opinion
  • has the opinion been filed or entered in evidence in the litigation?
  • if so, it has become evidence and is no longer privileged

Does the record consist of

  • draft pleading
  • memoranda on strategy for the litigation
  • preparatory notes for court proceedings or discoveries
  • witness interviews
  • investigations by lawyers into the facts in preparation for the case
  • opinions given by the lawyer to the client with respect to the litigation
  • settlement offers made between lawyers on a without prejudice basis
    • Have these settlement offers concluded in an agreement
    • The agreement may not be privileged

Does the report consist of consist internal investigations?

  • harassment complaints
  • human rights complaints
  • grievances

Was the purpose of preparing these reports in order to defend the government in contemplated litigation?

  • ask to see evidence of a reasonable prospect of litigation
  • demand letters
  • human rights complaints

Was the investigation report prepared in order to enable the government institution to deal with allegations or complaints of harassment, discrimination or other internal matters?

  • if so, was any legal advice provided in the report?

Did the report investigate and make factual conclusions as to the allegations?

  • if so, will the factual conclusions incorporated in or intertwined with any legal advice?
  • if not, was the report prepared in order to respond to current or pending litigation?
  • this will often not be the case and the report will often not be privileged

Do the records relay facts of evidence that may be used in a court case?

  • if so, they likely are not privileged unless incorporated with legal advice or opinion evidence?

Do the records consist of copies of documents provided to a lawyer for preparation?

  • if so, the copies may be privileged, but the originals will not be privileged
   
 
Statement of Test to be Met
  • legal advice retains its privilege if quoted by the client internally
  • interpretations of legal advice are not privileged
Relevant Questions Departmental Response Assessment

Has the requestor requested originals from the client department?

If the communication is by the client to other recipients in the government, does it quote legal advice or opinions obtained from the Department of Justice?

  • if so, the quotations or repetition of legal advice provided retains solicitor/client privilege.

Does the record discuss or interpret the advice provided by the lawyer?

  • if so, the discussion/interpretation is not privileged.
  • have these portions been severed and disclosed?

Watch for double banking with section 21 in these circumstances.

   
 
Statement of Test to be Met
SOLICITOR/CLIENT PRIVILEGE DOES NOT APPLY IF:
  • the client has waived the privilege
  • common interest privilege may apply
  • partial waiver may waive other parts of document containing advice or same matter
Relevant Questions Departmental Response Assessment

Has the client circulated the legal advice or privileged document?

What degree of circulation has the document received?

Has the document been circulated within the government?

  • why have the recipients been circulated with the document?
  • why have the recipients been told about the advice received?

Did the recipients need to know about the advice received?

  • why?
  • if the recipients did not need to know about the advice received, the privilege may have been waived.

Did the client disclose the document or substance of the advice publicly?

  • how?
  • what degree of public exposure has the advice received?
  • to whom was it disclosed?
  • why was it disclosed?

Did the client institution disclose the document to provincial counterparts or other governments?

Does the government institution claim a common interest privilege in this respect?

On what basis the common interest privilege claimed?

Did the parties to whom the advice or record was disclosed have a similar position in litigation?

  • describe this.

Are the parties jointly liable with the Government of Canada as defendants in a proceeding?

Are the parties co-plaintiffs with the Government of Canada in a proceeding?

Is there any difference in the positions of the parties?

Note that in most constitutional and public law issues the interest of the Federal Government and provinces will not be identical.

Did the client waive all or part of the privilege in the record?

  • if a partial waiver was given, to what part did the waiver apply?
  • why was the privilege in the rest of the document not waived?
  • does the rest of the document deal with the same subject matter as the part for which privilege was waived?
  • if so, what reason is given by the client to distinguish between these parts?

Note that a client cannot waive privilege with respect to helpful issues only.

   
 
Statement of Test to be Met
  • Illegal use is made of the advice.
Relevant Questions Departmental Response Assessment

Has the advice been used in order to facilitate the commission of an offense or an attempted commission of an offense?

Has the client in the action or attempt of committing a fraud used the advice?

Has the advice been used by the client in the course of a breach of trust by a public official misuse of funds or abuse of public office amounting to a criminal act (kickbacks, brides, etc.)?

  • if so, section 23 will not apply
   
 
Statement of Test to be Met
  • Legal advice to trustees cannot be withheld from beneficiaries.
Relevant Questions Departmental Response Assessment

Was the legal advice for the Department of Indian and Northern Affairs?

Was the legal advice for government officials making decisions with respect to the administration of Indian reserves or treaties?

Are members of those Indian Bands or treaties requesting the information?

  • if so, is there a trust relationship established between the recipient of the advice and the requestor.
  • if so, legal advice may not be privileged as against the member of the Indian Band or treaty as a beneficiary of the trust.
   
 
Statement of Test to be Met
  • Severance must take place for information not subject to solicitor/client privilege.
Relevant Questions Departmental Response Assessment

Has the information not subject to solicitor/client privilege been severed and disclosed ?

  • factual analysis
  • policy analysis
  • interpretations and discussion of legal advice by non-lawyers
  • information of a legal nature provided by non-lawyers
  • business advice
  • commercial matters involving lawyers
  • privilege which has been waived
   
 
Statement of Test to be Met
  • Discretionary Exemption
Relevant Questions Departmental Response Assessment

Has the client institution considered disclosing the record?

  • by waiving the privilege
  • by exercising the discretion to disclose notwithstanding the privilege

Relevant factors in the exercise of discretion or decision to waive the privilege include the following:

Crown has historically relevant legal opinions:

  • Native treaties and administration
  • Constitutional amendments
  • Criminal Code amendments
  • terms of union with provinces
  • war-time/emergency measures

Crown may be the only party in possession of documents outlining its relations with Indian or other groups.

These documents may now be relevant to Indians in the context of self-government or entitlements under the Charter.

Passage of time reduces the need for protection of information subject to solicitor/client privilege.

The harm to the client institution's position in respect of the litigation or the substantive issue on which advice was provided should be assessed.

  • similar considerations to those set out in section 21 may apply
  • see section 21 grid
  • Legal advice may have been provided on routine or innocuous matters

Government position is often available in public documents

  • Factums
  • memoranda of argument
  • motion material

Purpose of request may be relevant

  • what use will be made of the records a public purpose serves the purposes of the Act more than a private purpose

  • Note that government is in a position to waive the privilege by consenting to its disclosure, where there is a valid purpose which does not damage the solicitor/client relationship.

   
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