The Supreme Court’s Doctrine of No Construction in Alberta v. University of Calgary

In Alberta v. University of Calgary the employer university refused employee access to information about herself on the basis of solicitor client privilege. The university then refused the privacy commissioner’s request to review that information which, under Alberta access to government information law, must be disclosed to the commissioner despite “any privilege of the law of evidence” being asserted. A majority of the Supreme Court sided with the university in holding that “any privilege of the law of evidence” does not include solicitor client privilege. If the commissioner’s office has a right to review claims of solicitor client privilege, the majority reasoned, the legislation must specifically say so.

The case is highly problematic for its policy implications (see here). For lawyers, and statutory interpretation aficionados like myself, there is yet another dimension of fascination. How is it possible that the specific wording “any privilege of the law of evidence” could not include solicitor client privilege? The answer is not simply that the court failed to apply the modern rule of statutory interpretation or even that it adopted a rule of strict construction. Either one of these approaches would have led inexorably to the opposite result. Rather the problem is more basic and problematic than that: the majority simply failed to construe the meaning of the language “any privilege of the law of evidence.”

Not Strict Construction

The concept of “strict construction” refers to the interpretation of legislative language in a narrow sense. If after a narrow reading there is ambiguity as to whether a tax, penalty or punishment should apply in a given case, strict construction gives the benefit of the doubt to the individual, not the state.

Canadian courts no longer apply strict construction to the interpretation of statutes, at least not in its pure form. Rather, it survives as a tiebreaker in favor of an accused in cases where a full construction of criminal legislation using the modern rule (discussed below) still leaves the meaning ambiguous as applied to a given case.

In either form, strict construction is premised on at least a tentative understanding of the language at issue. To interpret language narrowly still requires an act of interpretation. And to determine if the application is ambiguous requires a comparative reference point to that which we think might be included under the rule.

How would one strictly construe “any privilege of the law of evidence?” Any means all. The balance of the phrase has an obvious technical legal meaning, which invites one to look to the law of evidence. According to two leading evidence law books I consulted, privilege is comprised of about one half dozen categories, and only three which would plausibly be asserted by a government body. These would be privileges asserted for doctors or counsellors on behalf of their patients (e.g. hospitals), protecting informants and third parties in criminal proceedings (e.g. police) and various forms of solicitor client privilege (applicable across public bodies).

Had the majority of the Supreme Court developed this tentative understanding of the language, it could not have come to the result it did. Why would the legislation be referring to the first two relatively obscure privileges and not the more obvious and common one of solicitor client privilege. It is like saying that a rule “no motor vehicles in the park” does not include a car because it is not specifically mentioned.

It is not even possible to conceptualize the language here as ambiguous. This is because absurdity precludes the possibility of ambiguity. In other words, to justify the exclusion of solicitor client privilege from the list of privileges would have to make some rational sense. But to give special treatment to solicitor client privilege as a category would mean that innocuous information in a lawyer’s file in one case is shielded whereas disclosure of a person’s identity as an informant in another case is not. Obviously the latter is more deserving of protection than the former suggesting there is no inherent hierarchy to categories of privilege which would justify special treatment of one over another.

Not the Modern Rule

The Supreme Court regularly cites the modern rule as the only approach to interpretation. That rules states: “…the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with scheme of the Act, the object of the Act, and the intention of Parliament.”

The ordinary meaning of the words here, discussed above, is buttressed by other indicia of meaning including purpose and legislative scheme. The stated purpose of this legislation is to allow a person “a right of access to information” subject only to “limited and specific exceptions.” This means exceptions to access to information are to be listed in the legislation (not created by courts). It also means that, if there is ambiguity, access should trump the exceptions.

The majority’s interpretation also frustrates the legislative scheme. Review by the privacy commissioner’s office is check put in place to ensure that claims of privilege are not improperly asserted by government. When the privilege is warranted, the information is not released. But without this review, the government body may hide behind solicitor client privilege and disclose nothing. Without review by the Privacy Commissioner’s office, an individual may never see, or challenge, any of her information on file. Such a large loophole is inconsistent with a legislative scheme designed to serve access to information goals.

The only aspect of the modern rule that the majority decision considered was a limited form of statutory context. Since another part of the legislation refers to “any type of legal privilege, including solicitor client privilege…”, an intention that solicitor client privilege was only to be displaced through explicit language was inferred. This inference of meaning is weak, however, in the face of all the other elements of the modern rule which point the other way.

One positive development emerging from this case was the rejection of the Alberta Court of Appeal’s strict construction approach to the question of solicitor client privilege in access to information legislation. That holding meant that no other area of law, including criminal law, would be subject to strict construction ab initio. It is the height of professional hubris to reify solicitor client privilege to this status, yet the most serious crimes involving the most serious kinds of penalties would be subject to the modern rule. And much like the Supreme Court majority judgement, that decision was not really strict construction anyway.

I do not like to use the term “judicial activism” since in many cases courts are forced to develop the policies implicit in legislation when faced with unusual cases or incomplete statutory regimes. However, it is judicial activism when a court displaces the clear policy preference of the legislature and replaces it with its own. This is such a case. The only way the court could possibly justify this result was to sidestep its assigned task of construing the language at issue. Let’s hope this is the last we see of the doctrine of no construction.