Case Report – Information Commissioner can impose confidentiality screen on joint legal retainer

In a judgement dated October 5th of last year, the Federal Court held that the Information Commissioner of Canada acted lawfully in making a confidentiality order that prohibited Crown counsel from sharing information with the Crown that it gained while jointly representing individual Crown servants.

The Crown servants were compelled to give evidence before the Deputy Commissioner in the course of his investigation into an Access to Information Act complaint. Department of Justice counsel accompanied the witnesses and acted as their counsel. In order to preserve the integrity of his investigation, the Deputy Commissioner prohibited the witnesses from disclosing the questions asked, answers given and exhibits used in the examination and prohibited counsel from disclosing the same. The Crown applied for judicial review of the orders, arguing that they interfered with its solicitor-client relationship with Crown counsel.

The Court held that the Information Commissioner has an implicit power to make confidentiality orders and that the potential for a conflict of interest given the witnesses were not high-ranking officials made the Deputy Commissioner’s orders reasonable and necessary in the circumstances. It said:

Counsel for the applicant countered that there is absolutely no factual or evidentiary foundation for the proposition that such a conflict of interest exists or is even likely to come up in the present circumstances, and that the decision and orders are therefore founded on speculation and unsubstantiated assumptions. The only reason that the individuals were subpoenaed by the Deputy Commissioner was on account of their activities on behalf of the Crown. Since they were not examined in their personal capacity but rather in their professional capacity as Crown servants and employees, there can be no conflict of interest in this proceeding between the individuals and the Crown, according to the applicant’s argument.

I must confess that I am somewhat troubled by this automatic and necessary assimilation of the Crown’s and the employees’ interests. As a general rule, I am prepared to concede that it is unlikely the employees’ views with respect to the disclosure of a document will differ from those of the senior management of the Department involved. But the possibility cannot be ruled out entirely, especially when the employees subpoenaed by the Commissioner are not in the higher ranks of the Department but rather at the lower level. Similarly, I can easily envisage situations where there is no conflict at the outset but conflict develops as the questioning proceeds and the investigation unfolds. It is in those kinds of circumstances that employees must have the assurance that they will remain in control of the disclosure of their testimonies notwithstanding the fact that their counsel play a dual role.

I agree with the respondent that the investigatory process would simply be unworkable and profoundly undermined if the Attorney General had a de facto right to attend all hearings simply by providing a counsel to the witnesses compelled to give evidence.

The Court also rejected an argument that the confidentiality orders unjustifiably violated section 2(b) of the Charter.

Canada (Attorney General) v. Canada (Information Commissioner) (F.C.), [2008] F.C.J. No. 1235 (F.C.) (QL).

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