Blank v. Canada (Minister of Justice)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Mosley, J.
• Citation: (2005), 286 F.T.R. 44 (FC),2005 FC 1551
• Date: 20 June 2005

Blank v. Can. (2005), 286 F.T.R. 44 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. DE.001

Sheldon Blank (applicant) v. The Minister of Justice (respondent)

(T-2073-00; 2005 FC 1551)

Indexed As: Blank v. Canada (Minister of Justice)

Federal Court

Mosley, J.

November 17, 2005.

Summary:

Blank, and Gateway Industries Inc., of which he was a director, were charged with regulatory offences under the Fisheries Act and the Pulp and Paper Effluent Regulations. The summary conviction charges were ultimately quashed and a further attempt to prosecute the charges by way of an indictment was stayed by the Crown. Blank brought an action against the Crown for fraud, conspiracy, perjury and abuse of prosecutorial discretion and he applied under the Access to Information Act for access to government records relating to the prosecution. Certain material was released, however other documents were withheld for reasons of solicitor client privilege and on the basis of exemptions in the Act. Blank complained to the Information Commissioner which resulted in the release of some, but not all the requested material. Blank sought a review of that decision under s. 41 of the Act.

The Federal Court of Canada, Trial Division, ordered an additional, but limited release of documents, but upheld the bulk of the exemptions claimed. Blank appealed from the court's determinations upholding the exemptions. The Crown cross-appealed from the court's ruling that litigation privilege expired when the litigation to which it related came to an end.

The Federal Court of Appeal, in a decision reported at 325 N.R. 315, dismissed the appeal, except with respect to an issue respecting the question of severance under s. 25 of the Act. That matter was referred to the motions court to ensure that the mandatory requirements of that section had been complied with by the Crown. The court, Létourneau, J.A., dissenting, dismissed the Crown's cross-appeal. The court held that the litigation privilege in s. 23 of the Act no longer had any application as the documents relating to the prosecution lost their privileged status when the prosecution concluded.

The Federal Court considered the issue of whether the Crown had severed accessible information from the exempted records as required by s. 25 of the Act. The court also considered issues which arose in relation to the interaction of s. 25 and the solicitor-client privilege exemption in s. 23 of the Act. The court determined what information was to be severed and which records could not be severed further.

Crown - Topic 7165

Examination of public documents - Freedom of information - Legislation - Waiver - The Federal Court considered the issue of whether partial disclosure under the Access to Information Act of a document for which solicitor-client privilege was claimed amounted to waiver of privilege for the entire document - The court held that in the case before it the partial disclosure of documents to the applicant under the Act could not be taken as waiver of privilege over the entire document - The court stated that "Release under the Act is done for the purpose of providing statutorily required disclosure and has no effect upon the status of the document as privileged. Portions of the document may be released due to legal obligations on behalf of the Crown, but this does not constitute waiver" - See paragraphs 44 to 48.

Crown - Topic 7165

Examination of public documents - Freedom of information - Legislation - Waiver - The Federal Court stated that "Where the disclosure of a document is compulsory, implied waiver does not occur. Disclosure is compulsory in the case of criminal proceedings based on the principles developed in R. v. Stinchcombe ... Therefore disclosure of a document based on the Crown's obligations to a defendant in a criminal proceeding should not be considered voluntary for the purposes of implied disclosure" - See paragraph 42.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client privilege (incl. Crown counsel) - [See first Crown - Topic 7165 and all Crown - Topic 7217 ].

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - The Federal Court stated that "severance within a document under s. 25 [of the Access to Information Act] is only to be effected where it is reasonable to do so. Reasonableness requires that the severed information be capable of standing independently and that severance must not result in the release of meaningless words and phrases out of context or provide clues to the content of the exempted portions. Severance must be done bearing in mind the importance of impairing solicitor-client privilege as little as possible" - See paragraph 36.

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - The Federal Court considered the issue of whether, if a privileged document contained within it a listing of other documents, which might or might not be covered by the privilege, the list should be severed from the privileged document and released - The court stated that "any information, including a list of other documents, which can reasonably be severed from the privileged communication, should be severed under s. 25 of the Act. There is no principled basis for why lists of additional documents should be treated any differently than other information contained in the privileged communications. The severance provision in s. 25 should apply consistently to all types of information. If solicitor-client privilege is claimed for one or more of the listed documents, disclosure of the list should not compromise the privilege claimed in that document. The privilege in the document remains until such time as its content is disclosed" - See paragraphs 36 and 39.

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - The Federal Court arrived at the following conclusions respecting the principles which applied to severance of exempted records: "a. The applicant is entitled to general identifying information such as the description of the document (for example, the 'memorandum' heading and internal file identification), the name, title and address of the person to whom the communication was directed, the subject line, the generally innocuous opening words and closing words of the communication, and the signature block. b. The applicant is entitled to the release of records contained within privileged documents to the extent that the non-privileged content is readily ascertainable and may reasonably be severed without imposing a disproportionate burden. c. Lists of other documents contained within the privileged records are also subject to severance if it can be reasonably effected. d. Documents released to the applicant under the prosecution's disclosure obligations in the criminal proceedings do not lose their privileged character by that reason alone. e. Partial disclosure of a record does not render the entire record accessible" - See paragraph 49.

Cases Noticed:

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 22].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 164 O.A.C. 280; 2002 SCC 61, refd to. [para. 22].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2005), 35 N.R. 8; 2005 FCA 199, refd to. [para. 22].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 23].

Pritchard v. Human Rights Commission (Ont.), [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1, refd to. [para. 23].

Stevens v. Prime Minister (Can.), [1998] 4 F.C. 89; 228 N.R. 142 (F.C.A.), consd. [para. 24].

Davies v. American Home Assurance Co. (2002), 162 O.A.C. 92; 60 O.R.(3d) 512 (Div. Ct.), refd to. [para. 28].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 29].

Rubin v. Canada Mortgage and Housing Corp. (1988), 86 N.R. 186 (F.C.A.), refd to. [para. 30].

Information Commissioner (Can.) v. Canada (Solicitor General), [1988] 3 F.C. 551; 20 F.T.R. 314 (T.D.), consd. [para. 33].

Montana Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1989] 1 F.C. 143; 18 F.T.R. 15 (T.D.), consd. [para. 34].

Keddy v. Atlantic Canada Opportunities Agency (1993), 66 F.T.R. 227 (T.D.), refd to. [para. 35].

Western Life Assurance Co. v. Canada Life Insurance Co. (1987), 63 O.R.(2d) 276 (Master), refd to. [para. 40].

Stevens v. Prime Minister (Can.), [1997] 2 F.C. 759; 127 F.T.R. 90 (T.D.), refd to. [para. 41].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 42].

Sherman v. Minister of National Revenue (2004), 317 N.R. 84; 2004 FCA 29, refd to. [para. 57].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 23, sect. 25 [para. 21].

Authors and Works Noticed:

Manes, Ronald D., and Silver, Michael P., Solicitor-Client Privilege in Canadian Law (1993), pp. 127 [para. 29]; 191 [para. 41].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 642 [para. 28]; 665 [para. 40].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, para. 2292 [para. 26].

Counsel:

Sheldon Blank, on his own behalf;

Christopher Rupar, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, Ontario, for the respondent.

Ths matter was heard on June 20, 2005, at Winnipeg, Manitoba, before Mosley, J., of the Federal Court, who delivered the following decision on November 17, 2005.