This post is the first of a series of posts that, together make up an article that Professor Hutchinson and I intend to use to discuss various issues raised in the article and anything else that comes to mind as we discuss those issues.
There will be a series of daily posts until the article is completely posted. We are aiming for a school week's worth.
Purposive Dancing With The Stars
A Response to Professor Hutchinson and on the process of judicial judgment writing, the contents of some reasons for judgment, and advocacy in the courts
I had intended this to be a brief(ish) - by real standards, not mine - reply to Professor Hutchinson's very succinct, very accurate, very true critique, on SLAW of the SCC's recent decision in Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53. see Cameron Hutchinson, The Supreme Court’s Doctrine of No Construction in Alberta v. University of Calgary.* However, as is often (some would say, with some merit too often) the case with me, the piece "grow'd".
So, I've made this a stand-alone posting, here, albeit in the form of a letter to Professor Hutchinson. It is posted with his permission in the sense that he has read it and told he has no objection to me posting the contents in this form. I have mentioned this because an acquaintance recently reminded me of my tendency towards the sardonic. That's intended in this article. I've also intended the flippancy or wryness which, in some ways, is a milder form of sardonicism not amounting to the belittling mockery which sardonicism sometimes apes.
At least for me.
So, please understand that nothing in this document is in any sense intend to mock Professor Hutchinson. He is not my target. If you want to read what I have written otherwise, that’s your right. But you will be wrong to do so, even more now that I’ve told you specifically not to do that.
In any event, as I’ve indicated, Professor Cameron read it before I released it and promised that, should I ever set foot again in Alberta, he'd do nothing worse than subject me to an evening of his impressions of Ezra Klein speeches as might be delivered by Professor Lewis Klar, channeling the spirit of the late Jack Layton to an audience including both Professors Yahya and Klar and former professor now Mr. Justice Brown of the Supreme Court of Canada.
There could be easier punishments.
I refer to your critique of Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53 on Slaw. As you might imagine, I read it with some interest, having once been a barrister in Canada, having received information from clients in the course of lawyer-client relationship that the clients would not anyone in the public to know about (including their mothers, parents-in-law and the reporter for the local Sun-like tabloid), and, of course, still having friends in Alberta and elsewhere: some of whom are practitioners; some legal academics; and one who used to be both but has since taken a higher calling.
I understand you to have summarized the theme of your critique in the second and lasts paragraphs of your article:
“The case is highly problematic for its policy implications … . 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.”
“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.”
The emphasis is mine in each paragraph.
I take it that what you mean by the first sentence of the second paragraph, given the second sentence, is at least some extent of incompleteness of the statutory regime in relation to the "clear policy preference" of the legislature.
I’ll state my response to the assertions I see in each paragraph in a brief, conclusory, form, then move to the discussion.
1. How is it possible that the specific wording “any privilege of the law of evidence” could not include solicitor client privilege?
Because there is a “b” in both, an “n” in neither, and at least one “y” in this:
“On our purposive reading, the section of the Act was nevar intended to apply to lawyer-client privilege and therefore the fact that the words are factually capable of applying misses the point. If the Act nevar applies, then the question of the meaning of the section is irrelevant. It doesn’t matter whether the plain meaning of the wording necessarily includes XXXX because the Act was never intended to apply. FULL STOP. What’s the justification for our conclusion that the Act was never intended to apply? Our reading of the entire Act, not just the one section you’re referring to."
2. However, it is judicial activism when a court displaces the clear policy preference of the legislature and replaces it with its own.
“You say, they say” where “they” are the master, that’s all. They say – see (1) – looking at the language of the entire Act, we conclude there wasn’t a clear policy preference as you allege. You’re focusing too narrowly the words of s. 56(3). Thus you are wrong. You say. “Are not”. They say “Are two.”
You complete a few rounds of this as, one by one, each of the Red Nine hold up a picture of Humpty and Alice, such as this one
until all 9 are holding a card. At that point, one of the Court attendants, whose name is Dee Tieu
pushes the red button which ends the show, then takes all of you for Elevenses
at the local Oxbridge HaberDashery Club. Or something like that.
In any event, I shall proceed on your apparent assertion that the the Supreme Court, or any of the courts below, had sufficient information for a valid decision on either completeness or incompleteness of the regime (which might or not matter) because, in my view, what the courts did not have is sufficient - let's be blunt - any adequate information as to whether the enacting legislature had ANY policy preference, let alone a clear one, unless your point is that the text of the legislation, itself, was the beginning and end of the search for that policy preference. I take that as what you meant by writing: "The only way the court could possibly justify this result was to sidestep its assigned task of construing the language at issue." (Emphasis added.) That’s because, in this case, the courts had absolutely no extrinsic information, evidence, from either Alberta or the University as to what those responsible for the drafting and the passage of the legislation intended by the language in issue. I’d argue that the courts had an equal amount of intrinsic information but then, since nothing plus nothing occasionally means something in the Supreme Court of Canada, and I’ve been critical of that circumstance, I don’t want to write anything that could be seen as supporting that mode of thinking.
I think I am correct in believing that your assertion of “judicial activism” is based on your correct observation (necessarily implicit in your critique) that, somehow, the Court managed to sidestep providing any explicit explanation of what "the language in issue" meant if they did not include "information protected by lawyer-client privilege". We should assume, I suppose, that the Court's response would be that it did not have to do so; that is, to provide that definition to answer the question before it. Rather, all the Court had to do was decide whether "information protected by lawyer-client privilege" fell within the meaning of "any privilege of the law of evidence". That follows because, if the Court decided that the former did not, then a sufficient explanation of the scope of the latter was necessarily anything else that could fall within the meaning of the latter. May I assume that, in that event, your response would be something to the effect of: "hello; any is all; everything is everything"; "a rose by any other name is still a rose etc., etc.
The language in issue was, of course, certain provisions of the – please allow me to coin words and phrases - "oxymoranishly" named, "cognitive dissonance-ly" named, "Orwellian double-speak-ly", politically coherently but not otherwise coherently named, Alberta Freedom of Information and Protection of Privacy Act, RSA 200, c F-25 (“FOIPP”). That statute, under the "Freedom of Information" portion, purports to grant to functionaries of the Alberta government the power to breach the privacy of Alberta citizens, and others unfortunate enough to be caught within that functionary's grasp, all while purporting to regulate that power in accordance with the "Protection of Privacy" portion of the statute. Or something equally (in)coherent. Your choice, here. Look at the bright side, though. The statute, given its history was drafted in and enacted only in English, right? Imagine if it had had to be drafted and enacted in Alberta's new second language: "Dipperspeak". (I trust you’ll all me some license, here. I still consider myself a David Lewis Social Democrat.)
Section 56 of the FOIPP provides, under the heading "Powers of Commissioner in conducting Investigations or Inquiries”:
56(1) In conducting an investigation under section 53(1)(a) or an inquiry under section 69 or 74.5 or in giving advice and recommendations under section 54, the Commissioner has all the powers, privileges and immunities of a commissioner under the Public Inquiries Act and the powers given by subsection (2) of this section.
(2) The Commissioner may require any record to be produced to the Commissioner and may examine any information in a record, including personal information whether or not the record is subject to the provisions of this Act.
(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).
(4) If a public body is required to produce a record under subsection (1) or (2) and it is not practicable to make a copy of the record, the head of that public body may require the Commissioner to examine the original at its site.
(5) After completing a review or investigating a complaint, the Commissioner must return any record or any copy of any record produced.
The language in issue in Alberta v. University of Calgary is that of s. 56(3): "Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2)." (Emphasis added.)
The FOIPP did not define directly – you and I may find this unsurprising: I'm sure intelligent aliens would be puzzled - (OK, didn't actually "define" at all) what the statute meant by any part of the phrase "any privilege of the law of evidence". I suppose that's part of what you meant by "incomplete statutory regime". Perhaps we can agree that if the 1st story of a 10 story building doesn't exist at all, then not only is that not a 10 story building but the structure is more likely to be rubble than a building. Be that as it may, what the FOIPP does is set out, in another section of the Act (s.27(1)), under the heading "Privileged Information" some information (and essentially the media containing or amounting to that information) that some persons may (should they wish) refuse to disclose to certain other persons under certain circumstances. One of the categories that such a person may refuse to disclose is " information that is subject to any type of legal privilege, including solicitor‑client privilege or parliamentary privilege" (s. 27(1)(a). But, again, the statute doesn't define "legal privilege" or "solicitor-client" privilege. (In passing, I suppose we will also agree that it is a "good thing" that Alberta has a unified bar, or else the clients of Alberta's barristers (if they were not also solicitors) might or might not be subject to, or protected by, the legislation.) The phrase "any type of legal privilege" is also used elsewhere in the legislation (s. 43(1)(b)(iii). Not remarkably, it is not defined there, either. The statute does, of course, have at least one definitions section. It just happens to be s.1. There are no definitions of "evidence", "law", "legal", "privilege" or, for that matter, even "any". I'm sure you noted this and the interesting fact hat "employee" is immediately followed by "head". I suppose this isn't a problem in a province which is landlocked so doesn't have to worry about all of the various definitions of "head". I suppose we have to assume that those responsible for drafting the legislation though the quoted terms which are not defined so notorious in meaning that a fact-finder, judge or jury, would be entitled to take judicial notice. In addition, of course, to the extent these terms have a settled meaning in Canadian law, it is also settled Canadian law that judges are to be presumed to know the law the deal with on an every-day basis.
Let's get another quotation from case law out of the way before we go on. This one comes from Bell ExpressVu Limited Partnership v. Rex,  2 S.C.R. 559, 2002 SCC 42 and sets out what is still supposed to be Canadian 10ish Commandments for Statutory Interpretation; the commandments which I know underpin your critique. I realize that the principles are too well known for the likes of the two of us to merit inclusion, here; however, this way I can make the article “standalone” for readers in the profession who have not yet had the chance to have these principles engrain themselves into their analytic DNA or RNA. The Court wrote, under the heading: "Principles of Statutory Interpretation"
 In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen,  1 S.C.R. 536, at p. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours,  3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, at para. 21; R. v. Gladue,  1 S.C.R. 688, at para. 25; R. v. Araujo,  2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe,  1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 84, 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21 , which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.
 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd.,  2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson,  2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court),  1 S.C.R. 1015, at para. 61, per Lamer C.J.)
 Other principles of interpretation — such as the strict construction of penal statutes and the “Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada,  1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander,  2 S.C.R. 398, at p. 413; R. v. Russell,  2 S.C.R. 804, 2001 SCC 53, at para. 46. I shall discuss the “Charter values” principle later in these reasons.)
 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang,  A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General),  1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.
 For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra, at pp. 4-5).
 The interpretive factors laid out by Driedger need not be canvassed separately in every case, and in any event are closely related and interdependent (Chieu, supra, at para. 28). …
I added the italic and bold emphasis in para. 30. The underlined "thereafter" is in the original text.
[end of part 1]