Federal Court protects CJC’s “fact finder” report

On December 13th, the Federal Court held that a report prepared by Professor Martin Friedland to the chair of a judicial conduct committee was subject to solicitor-client privilege and therefore not to be filed in a judicial review of the chair’s decision to dismiss a complaint.

Although Professor Friedland was retained under Canadian Judicial Council policy to make “further inquires” into a judicial conduct complaint – a fact-finding role in its essence – the Court held that his communication to the chair was best considered to be legal advice given Friedland’s status as a lawyer and the legal context for his communication. It said:

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 support or refute those allegations”, to quote from the Complaint Policy, he or she must know the legal elements of the specific allegations and of the notions of “judicial misconduct” and “incapacity” more broadly. In the case at bar, for example, Mr. Slansky alleged in his 16-page letter, bias, abuse of office, improper motive and knowingly acting contrary to the law. For the investigator to determine whether there is evidence that would support these allegations, he or she must be able to determine the materiality of the evidence. This is fundamentally a legal exercise, as it requires an assessment of whether there is a probative connection between the facts to be proved and the facts in issue as determined by the substantive law. Relevance and materiality are determined by the trier of law in a court proceeding, whereas the weight to be given to that evidence is for the trier of fact (Bryant, Lederman and Fuesrt, The Law of Evidence in Canada, pp 56-58, ss 2.49-2.50). Once again, it was essential for the investigator to be well versed in the principles of substantive law and evidence, to be in a position to assess whether the examples provided by Mr. Slansky in support of his complaint, amount to mere errors of law that are better left to an appeal court or whether they do raise, when considered in isolation or as a whole, the sort of concerns put forward by Mr. Slansky…

In light of the foregoing, therefore, I agree with CJC that counsel could only gather and examine relevant facts and present his or her findings and analysis through a legal framework or analysis. There is no doubt in my mind that Professor Friedland was retained by the CJC in his professional capacity as a lawyer, with the intention of providing assistance through his legal knowledge and analysis.

The Court also held that privilege applied to the entire report, making clear that the common law generally does not contemplate the severance and partial disclosure of a privileged communication. The Court also held that Professor Friedland’s report was subject to public interest privilege given the special need to encourage full and frank participation in the investigation process.

Slansky v. Canada (Attorney General), 2011 FC 1467.

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