This part continues the Purposive Dancing article from where it ended in Part 4. When the part stopped, I'd finished providing the background for a scene that takes place in an imaginary version of Alberta, which I called AlberDum. (After all, folks, if Norway, that's right, Norway, could find a way to save a whole chunk of its North Sea oil revenue for rainy day, how smart does one have to be to save even a small but good chunk of Alberta's? Even a good car salesman could figure that out, let alone an Ontario self-exile from the Leaside and Rexdale areas of Toronto (even if he wasn't ever formally a part of the Alberta gov't.) I realize that Alberta's oil wasn't North Sea oil, so maybe it wasn't quite as clean as the European stuff - maybe had a whiff of sulphur or two; if not that then not quite as pure as the European stuff so it required more processing before becoming "saleable" - but the stream of revenue Alberta got during at least two oil booms was just as "clean".
Heck, it was so clean that it allowed Alberta to avoid having sales tax and Alberta based politicians - provincial and federal - to create a political culture of honesty approaching, equaling, even surpassing (ok - that's stretching a point: let's call that point perspective or maybe parallax) that of Canada's true Natural Governing Party. And set the stage for the Dippers' version of the late Big Dipper, leading Canada's version of the Orange Crush, to almost steal (honestly: in political terms - Janus would have blushed in honour were he compared to the "JackL") an election from under the nose of both the NGP and the npCP (np meaning "not progressive"). I figure the JackL was almost as surprised as the "BobR" was when the missus woke the JackL up to tell him he was now the head of the Queen's Loyal Opposition.
"Almost as surprised" because, as some of you will recall, the BobR woke up early one morning, in his house in a better part of western Toronto, after a provincial election to find he was the head of of a provincial Dipper gov't of Upper Canada with a cast of supporting characters almost as competent as the JackL would have years later; just a bit older and more strident. (Don't look at me. I didn't vote for the BobR's party though I'd have preferred to if I believed he could assemble a competent government economically, not just socially. I was then and still am a David Lewis Dipper. Besides, while I don't recall who was running in the riding where I was living at the time - I could look it up but I won't - my recollection is that that Dipper's candidate was a party hack; not even a good waffler.)
[Begin imaginary conversation]
HDC: [explains what’s about to happen at 10 a.m. or soon after]
R/L: You're our lawyer. We pay your exorbitant bills for you to handle our affairs and keep this stuff quiet. GODAMMIT. We told you this stuff in confidence. It's secret. It's private. It's dynamite. We remember law school. Nobody can force a lawyer to disclose what a client tells the lawyer. There's some kind of lawyer-client obligation on you to keep the information confidential that's almost sacrosanct. I remember you telling us that. I thought your were talking about Larphe's boating disaster with the three blond bimbos from ______ until you explained.
HDC: Well, yes, there is something called lawyer-client privilege, but the gov't claims that legislation that was enacted while you two were MLAs and in power allows them to do this.
HDC: The Freedom of Information and Protection of Privacy Act.
HDC: The government's position- well not actually the gov't but the Privacy and Information Commissioner who is supposed to be independent of the gov't but you know how it is if the gov't didn't like what was going on so we have assume what's going on at least has the gov'ts tacit consent - is that there's a section of the legislation that specifically allows the PIC to get documents from lawyers, even documents that are protected by lawyer-client privilege. The PIC claims the legislation trumps (the HDC lawyer silently giggles at his wit) the privilege.
HDC: [reads them the relevant part of the legislation and holds a copy of the text up to the camera on his laptop so that R/L can see it themselves on their tablet or laptop screens. Even a copy of the page of the 3rd reading draft that has Repte's rubber-stamped signature and another cover page with Larphe's rubber-stamped signature sending the draft legislation to Repte to sign-off on.]
R: GODAMMIT, Larphe, that was your committee.
L: Yes, I know. I was there. So were you, some times. When you weren’t out with ____ getting ______. You know I told the legislative drafter-idiot to write legislation that made sure that all our rights were protected and to make sure that all of everything ....that whatever and everything we were entitled to was protected better than what we had because that shmuck Troodohsky wouldn't put protection of property into the damn Charter. Privileges means all the things we can get because of who we are; the money we have; who owes us favours, etc. What else can it mean? For Lougheed's sake, Repte, I told your sniveling son, Reptil, a damn Hahhhvahhd damn graduate to make sure that the damn legislation damn did that, and you damn rubber-stamped it. I didn't look at it after that. That was up to you and him.
R: Yes, I looked at it but it's long so I didn't get past the first few paragraphs and besides I left it to Reptil and the other snot-heads in Major Premier's office. He told me the legislation covered our asses.
HDC: [The lawyer has been listening quietly to all of this, just managing not to fall off his chair and into uncontrollable paroxysms of hysterical laughter (or sobbing), because he realizes his firm is in deep doodoo, too, and sees the tragedy that he's going to have to give up the fine life and go back to being a shmoo and goat herder in Lower Slobbovia. The lawyer finally manages to get a word in edgewise] Ah, gentleman, I'm sorry to have to tell you this but that's not what the text of this legislation could ever mean, in any reality, not even in interior Utah or western Tennessee, not even in HellerDrum or Abbottsford, B.C., in this context, absent explicit words in the legislation setting out that meaning. But the legislation doesn't have those words.
HDC: [explains what this means in more detail. R/L begin to see the problem and start sobbing. HDC starts crying, too, see tragedy above. He’s also allergic to goats. So does the Anonymous hacker who is listening in the conversation, as do the companions who are hiding under the covers in each of Repte and Larphe’s beds. After about 20 minutes of mutual sobbing, HDC composes himself and speaks.] Gentlemen, there's one more thing I need to tell you. It's good news and bad news.
R/L: Give us the good news first. (They’re optimists).
HDC: Repte, the AlberDum PIC who has demanded the documents is your son.
R/L: (Puzzled at why there's a problem if the demand is by Reptil, since he's in it up to his gonads, too] So what's the bad news?
HDC: He's now your daughter, Reptilia. And, he's a lesbian. He married a woman in Vegas yesterday. But that's not all the bad news. …
R/L: [Interrupting] GODAMMIT. He's knocked up and the father is some NBA basketball player from Trawna or worse?
HDC: Well, yes, but the father isn't a basketball player. The father is the current premier’s son, Arnott But that not the bad news. Let me finish, please.
R/L: OK. GODAMMIT.
HDC: Reptilia's now a Dipper, too. The woman she married used to be Arnott. Now she calls herself Artoo.
[End imaginary conversation]
 In AlberDum, men are able to become pregnant, too, albeit currently only via artificial insemination. Somewhat like seahorses in the real world but without the artificial part. And The Arnold, of course. (Perhaps, now, too, a man in the UK but I need to see how "true" that is because I saw the headline on the front page of the Daily Mail while sitting down in my favourite cafe to have breakfast this morning, together with a picture of a young-looking man with a pot belly and a good bob. No: I hadn't bought the rag. It was sitting on an adjoining table. I doubted that that this has anything to do with Brexit and the delay in England pulling out of the UK; on the other hand, the headline seemed to suggest the man(?) was about 4 months pregnant. Turns out I was right. He wasn't formally screwed.)
The point of this imaginary charade is to highlight three facts: the first and third which are clear and the other I say is a fact we should assume is true:
- The legislation doesn't contain any definition of the relevant terms.
- If, at the time the legislation was being drafted and enacted, somebody had asked the MLAs involved if they intended the legislation to allow a gov't functionary, or a member of the public, or anybody else short of their own God, to get their lawyers’ papers containing politically damaging, or any other form of damaging, information they'd provided the lawyer in confidence, expecting it would remain secret even from the prying eyes of Ottawa, let alone some Alberta gov't official, they'd have said something to the effect of "no damn way".
- For some unusual (substitute your own adjective) reason,none of the reasons for judgment of any of the 3 levels of court involved contain any mention of any extrinsic evidence contemporaneous with or predating the drafting of any versions of the FOIPP statute that might relevant to the meaning of the statute: not a mention of anything such as an explanatory note to an earlier draft, or government statements released concurrently with the enactment of the legislation; not even the text of anything said by the analogue of Minister Repte in the Alberta Legislature (or any other MLA of the gov't of the day) about the legislation which was then reproduced in the real Alberta Hansard.
I do not know if anything of the sort I've referred to in (3) exists that provides actual insight into the actual intent of the people responsible for the actual drafting of the legislation as actually enacted. I haven't checked beyond what I will outline I the next few paragraph. I know it is bad scholarship which I wouldn’t allow myself, normally, but whether anything of that sort does or does not exist doesn't matter for the purpose of this letter. (Actually, it doesn’t matter at all, too me, except to the extent it allows me to have some fun, here, and might aggravate people who are friends because, for example, they might figure their time and public money was wasted unnecessarily.)
You'd think, though, if anything helpful to either side existed, somebody would have mentioned it at first instance. Given that, let’s briefly imagine, first, what might exist, and whatever it is might affect the actual players in Alberta (Information and Privacy Commissioner) v University of Calgary. I’ve set out the full name of the plaintiff to remind readers of a fact that I glossed over in the AlberDum hypothetical. The plaintiff is not the Province of Alberta. The plaintiff is a real human being called the Information and Privacy Commissioner (“IPC”, not IPA), under the FOIPP Act, occupying the position of Information and Privacy Commissioner created under s. 45 the FOIPP Act.
45(1) The Lieutenant Governor in Council, on the recommendation of the Legislative Assembly, must appoint an Information and Privacy Commissioner to carry out the duties and functions set out in this Act.
(2) The Commissioner is an officer of the Legislature.
(3) The Commissioner may not be a member of the Legislative Assembly.
This is significant because the interests of the Province of Alberta and the IPC do not overlap in theory or in principle. That’s at least because the Province of Alberta is the usual target of freedom of information (“FOI”) requests and, on the whole, provincial and federal governments prefer to not make public documents that are obtainable by others only through FOI requests. That’s at least because that information is not likely to help the government in power at the time, or those the government considers its friends. If the documents were helpful, the government in power would have magnanimously released them to the public of course.
As such, the fight in Alberta(IPC) v University of Calgary was between two “private” entities, albeit two whose existence is wholly (the IPC) and primarily (the university) dependant on public funds provided by, mirabile dictu, the Province of Alberta. Now let’s add one more true fact to the mix. The Province of Alberta did not intervene in the action at first instance, or on appeal to the ABCA or at the SCC.
Don’t you find that curious? I do, because of what it implies. I suggest we should assume and conclude that the province’s preference was for the dismissal of the IPC application to see (the contents of) University documents for which solicitor-client privilege was claimed be dismissed as, if was not, it could open up a wide area of documents the Province might have to produce on FOI requests, at the order of the IPC even if the Province did not want to.
If there is any person or persons who would, certainly should, know if there is a trove of, or even some, contemporaneous created documents or media dealing relating to the drafting and enactment of the FOIPP Act, it is somebody working for the Alberta Legislative Assembly or the civil side of the Alberta Attorney-General’s office. For the same of argument, let’s assume that there is such a person or persons: let’s call them “GAG”. We should also assume that GAG has a very good idea, for whatever reasons, of exactly what’s in the trove. There are only 5 options that I can envisage.
- Nothing at all. For some reason, everything is gone.
- Some documents but none of them deal with solicitor-client privilege or any other form of privilege at all. This is the equivalent of (1) except that there is paper or other media.
- Some media with information that that have some information that could be relevant but if it is the meaning is equivocal.
- Some media with information that tends to support the IPC disclosure position.
- Some media with information that tends to support the University non-disclosure position.
If we assume that the Province is, generally, against disclosure, and if the information in the material supported the non-disclosure position, isn’t it the better assumption that the Province would have intervene to so as to support the University? Unless, of course, a political decision was made that the government of the Province that the government didn’t want to be seen as being against Freedom of Information and the political masters of the Alberta AG instructed the civil side of the Alberta AG to shut up and stay out of it.
Is there any evidence that contemporaneous with the drafting documents exist. Yes. I’ll insert a few screen captures of search results and an excerpt from one document. The captures at the least provide one a road map of where to start looking. It took me less than an hour to get this information, for what that’s worth. (If an old dinosaur like me is able to find information that easily, imagine what those of you who grew up wired should be able to do?)
[End of Part 5 of article]
Since we're moving to "cliff hanger" mode, This is a good as any place to stop. Professor Hutchinson and I expect the discussion will resume mid-week. You might not believe it but he has a life and other obligations.
In the meantime, I will probably post a "bridging" piece and, if anybody cares to, he, she or ze can go looking, electronically, for Alberta documents that might show the legislative intent.
May the Schwartz be with you.