Department of Justice Canada (Re), 2022 OIC 54
The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under various sections of the Access to Information Act, including s.16(2), s.19(1), s.21(1)(a), s.21(1)(b), s.23, and s.69(1), related to the Alternate Independent Process for St-Anne’s Residential School hearings. During the investigation, the complainant withdrew the s.19(1) allegation. The Commissioner found that Justice appropriately applied s.16(2), s.21(1)(a), s.21(1)(b), and s.69(1). However, Justice could not demonstrate that all information withheld under s.23 (solicitor-client and litigation privilege) met the exemption's requirements, particularly regarding communications outside the direct solicitor-client relationship or where common interest privilege was not established. The Commissioner recommended disclosure of the improperly withheld s.23 information. Justice maintained its position on s.23 but committed to reviewing the records for potential disclosure. The complaint was found to be well founded.
- 1Whether s.16(2) facilitating the commission of an offence was properly applied
- 2Whether discretion was reasonably exercised for s.16(2)
- 3Whether s.21(1)(a) advice or recommendations was properly applied
- 4Whether discretion was reasonably exercised for s.21(1)(a)
- 5Whether s.21(1)(b) accounts of consultations or deliberations was properly applied
- 6Whether discretion was reasonably exercised for s.21(1)(b)
- 7Whether s.23 solicitor-client privilege was properly applied to all communications
- 8Whether s.23 litigation privilege was properly applied to all communications
- 9Whether common interest privilege was established for s.23 claims
- 10Whether discretion was reasonably exercised for s.23
- 11Whether s.69(1) Cabinet confidences was properly applied
- s.16(2) law enforcement: Exemption upheld
- s.19(1) personal information: Allegation withdrawn
- s.21(1)(a) advice: Exemption upheld
- s.21(1)(b) advice: Exemption upheld
- s.23 solicitor-client privilege: Exemption not fully justified; disclosure recommended
- s.69(1) confidences of the Queen's Privy Council: Exemption upheld
- Complaint outcome: Well founded
Complaint well founded — disclosure recommended for some records
The Department of Justice Canada failed to demonstrate that all information withheld under section 23 (solicitor-client and litigation privilege) met the requirements of the exemption, specifically for communications outside the direct solicitor-client relationship and where common interest privilege was not established. Other exemptions claimed were found to be properly applied.
The Commissioner recommended that the Minister of Justice disclose all information withheld pursuant to section 23 that does not meet the exemption's requirements, including exchanges between Justice and other parties.
- s.16(2) ATIA
- s.19(1) ATIA
- s.21(1)(a) ATIA
- s.21(1)(b) ATIA
- s.23 ATIA
- s.69(1) ATIA
- s.30(1)(a) ATIA
- s.37(4) ATIA
- s.43 ATIA
This summary is for informational purposes only and does not constitute legal advice.
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