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?)
[A few of the images - the Hansard listings & the DuckDuckGo search screens need to be replaced with larger versions for easy viewing but, if you enlarge the screen enough, you'll get the point. Something seems to exist.]
Bit of large can of worms, here, no?
If you and I can envisage the events I've described in this imaginary AlberDum, and are prepared to accept 2 as true - I think it's the only logical conclusion, absent any other information, about what the real Alberta MLAs would have concluded if they'd understood what they were doing - so should other people.
Just imagine what real MLAs would have thought and wanted, if by chance, some of them were doing anything like what UK MPs were doing with their expanses, or more recently, and closer to home, what some of our Ottawa Senators (not those on the the hockey team) were doing or were alleged to be doing. Even if they weren't, they might have had colleagues who were.
If you and I can envisage this, then so could the ABCA panel and the SCC panel. I don't know anything about the ABQB judge but I read enough of the first instance reasons to decide the judge would have, too, if he thought it mattered to the decision.
So where does that get us?
I suggest it gets us to the situation where the ABCA and the SCC suspected that the intent of the legislation couldn't have actually been what the Privacy & Information Comm'n lawyers argued it should be understood to mean. Might we call this disingenuousness on the Alberta PIC's part? That is, Alberta PIC lawyers were following orders and guessing in the sense that both they and their political masters didn't actually know, actually didn’t have the foggiest idea beyond rank speculation, what the people involved in the drafting process thought was supposed to be the intent of the language in issue – what orders the drafts-people were "only following" – so the Alberta PIC lawyers were banking on the apparent meaning of the text.
In any event, what we have is the situation where, for whatever reason based on what's said in the reasons – I have good reason to believe it’s actually the case, too, that neither side ever made the necessary arguments and attempted to introduce extrinsic evidence predating and concurrent with the enactment of the legislation: extrinsic evidence purporting to show what the legislature of the day actually intended.
Do you not find this lacuna curious?
If we assume, as I suggest we ought to, that both sides had competent counsel, then shouldn't we conclude that both sides must have concluded that there was nothing in the extrinsic evidence that would have helped them, even assuming they were able to get the evidence admitted on the grounds that there was "real" ambiguity in the words in issue. That both parties decided, in the absence of useful extrinsic evidence to them that, if the other side tried to introduce any, they’d argue, as stated in Bell ExpressVu: "[t]he words of the provision must be reasonably capable of more than one meaning" before there is "genuine" ambiguity which entitles a court "to resort to external interpretative aids". You think maybe there was a détente of some sort on this possible front? If so, maybe, in this context, where the issue was the meaning of a statute that affected the public, just maybe, the parties' counsel had an obligation to the Courts, and the parties to the public – well, at least, there should be a strong argument that the Alberta PIC (itself) since ultimately it is a branch of the Alberta government in the broad sense) and the Alberta gov't itself, had that duty to the public and perhaps just a slightly weaker argument that a publicly funded institution, particularly one such as the University – might also have, to put that information before the judges.
Not to mention, but I will without saying more, the issue of whether counsel breach their duties as officers of the Court in such circumstances if there’s what amounts to an agreement to not adduce what could be relevant evidence of which counsel is aware, particularly since relevance is the judge’s call, not counsels. I am not saying there was such an agreement. I am merely pointing out the the facts can support a conclusion that there might have been. We can go a bit farther and suggest that each sides lawyers had an obligation, regardless of what they felt the significance of the evidence might be, regardless of what the other side intended to do, to put evidence of this sort (if they were aware of it) before the judge. And, of course, counsel had the duty towards their clients to determine if such evidence existed, unless of course instructed by their clients not to do so after the client was given appropriate advice. I am not suggesting any counsel in fact breached their duties to the courts or their clients. I’m just pointing out the possible implications of the lacunae. I leave it to others, so inclined, to do the easily obvious and yet others to do more ferreting.
So, where does that leave us?
I suggest the position is that we don't actually know what the intention was of the Alberta gov't responsible for the drafting of the legislation. (One might glean from the fact, as you've mentioned elsewhere, that the current gov't fights such FOI requests that it at least pretends to believe that SCP privileged documents are exempt.) That is, the last paragraph of your critique assumes your conclusion. You are right that we do have words which, given their plain English meaning, seem to mean exactly what the Alberta argued. What we don't know, however, is whether that meaning is what the enacting legislature intended the words to mean. All we can do is adopt the legal fiction – fantasy is a better word here – that the words mean what they are intended to mean in the absence of any applicable rule to the contrary, so long as that meaning is reasonable.
And, it left the ABCA and the SCC in exactly the dilemma you posed. What to do about a section of the FOIPP act which, if (a) they gave the provision the apparent clear meaning of its words, produced a consequence which was not only contrary to what the judges likely thought the enacting legislature - i.e., those "responsible for the legislation" whose intention is, in practice, imputed to the members of the Legislature who are trained rubber-stampers - must have intended if they were sober at relevant times; heck even if they were stoned and drunk as a Lord; and also (b) contrary to everything the SCC had been saying over the past 25 or so years, and very recently, about the sacrosanct status of lawyer-client privilege.
So the ABCA by one route, and the SCC by another, did a sidestep of a sort the SCC (and inferior courts) have done before: a "purposive" interpretation of the legislation, which allowed the ABCA, in its way, and the SCC, in another, to essentially say that the legislation, despite seeming appearances in that phrase, could never have been intended to abrogate any portion of the lawyer-client privilege so did not apply. FULL STOP. After all, "purposive" is a word that appears in Bell ExpressVu, in para 30. I've even highlighted it.
This isn't, as I suspect you know, the first time the SCC has used a "purposive" interpretation of statutory wording to allow it to claim that clear words of the statute didn't produce a particular result under the statute even if, in fact, that's what the words meant. The two instances I currently remember - there might be more - both involved interpretations of the wording of Ontario Insurance Act provisions relating to motor vehicle insurance and Ontario motor vehicle polices, where the wording of the policy was statutory in the sense that the wording, while drafted by the insurance industry, was then incorporated into the insurance policy, by regulation(s), and that wording was the (only) approved form for that type of insurance in an insurance policy issued in Ontario. The cases are Lumbermens Mutual Casualty Co. v. Herbison,  3 S.C.R. 393, 2007 SCC 47 (where the issue was actually the meaning of the text of the legislation) and Citadel General Assurance Co. v. Vytlingam,  3 S.C.R. 373, 2007 SCC 46 (where the issue was formally the wording of the policy provision). Citadel is the main case. Lumbermens applies Citadel.
In both cases, the SCC was asked to decide a policy coverage issue: whether the phrase "directly or indirectly” caused applied to the relationship between the injury and the events alleged to be events triggering the policy coverage, where the events in issue were, in every possible sense currently known to Canadian law, and likely every possible sense outside of that law, necessary for the occurrence of the injury in issue as it actually occurred in this world. So, under any but-for, or sufficiency, or Gnu knows what else test for factual causation, the particular events were, and had to be, a factual cause within the literal meaning of "directly or indirectly" at least because, once you've exhausted all direct and indirect factual causes, there's nothing left. You've exhausted the universe of factual causes, in the universe in which the Earth exists. Even the legal universe as matters currently stand. They don’t have to remain that way, of course. But it’s better they do. Even in the Great White North. Especially because what’s happening in the Great White South.
What did the SCC do? Regardless of the terminology used by the Court: the wonderfully entirely meaningless or so broad to mean anything phrase "breaking the chain of causation" in Citadel and the "there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. [Emphasis in [original]]" in Lumbermens. This is what the Court did in both cases:
(1) held that the purpose of the policy coverage was X;
(2) allowing the policy to apply would be contrary to X; so
(3) while the facts were, admittedly a factual cause; and so
(4) admittedly a factual cause that literally satisfied the causal definition of "directly or indirectly"; nonetheless
(5) they didn't satisfy the legal meaning of the phrase "directly or indirectly" in the legislation or the insurance policy which had to be understood in the context of the purpose of the legislation (Lumbermens) or the insurance policy (Citadel) ;
(7) hence the legislation and the policy did not apply.
I did not omit proposition (6). In cases such as this, I think one should apply an analogue to one of the [Monty Python]“Bruces”' basic philosophic principles: viz., there is no Rule 6.
As I had to say, too often, too many times, to too many people, when I still bothered to attempt to at least get Canadian lawyers and judges to see the errors of their ways in the area of proof of factual causation, once you've said there is a but-for connection - which by current definition means a necessary connection - any other adjective describing the nature of that connection says nothing relevant in law about factual causation. A quick example: a weak necessary connection is still a necessary connection; so weak means nothing. (Don't take my word on this. Take the Courts in Athey. It's there, twice, underlined, in black and white, as you know.) It follows, of course, that "substantial" in the phrase "substantial connection" means nothing if the connections is a necessary connection. That, too, is a matter of simple logic that, I suggest, even Lord Halsbury in Quinn v Leathem would have agreed is one logical statement that law would accept.
I need quote only a few excerpts from Citadel to show how explicit was this move from the actual to the metaphysical; that is, from what actual happened (factual causation) to the legal explanation of what happened (legal causation). The passage I have quoted, above, from Lumbermens is explicit enough (a fact made even more ironic, for me, because I know that, in Canada, the passage comes from earlier SCC reasons for judgment of Major J, himself.
As you probably know, Major J has to be seen as one of the SCC's leading proponents of the "let's stick to the real and cut out the metaphysical crap" school of judicial analysis which is part of the supposed rationale for using the but-for test. After all, he wrote Athey and, as every Canadian judge and lawyer officially knew, once upon a time, one of the principles that Athey stood for was the need to cut out the academic, philosophical, crap when discussing causation because, as the Court had said before in Snell and repeated in Athey, albeit without the reference to metaphysics, causation is “essentially a practical question of fact which can best be answered by ordinary common sense” not abstract metaphysical gibberish, even authentic, original, Canadian, gibberish. The actual text is: factual causation is "essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory. [I'm going to add a rhetorical, ironic, comment here. The but-for test requires lawyers and judges to attempt to decide what would have happened in a world that never existed. If that's not "abstract metaphysical theory" then I wasn't the starting goalie for the Israel's National Ice Hockey team in the 1992 IIHF Group C Championships held in Johannesburg South Africa in March 1992. Anybody want to call Homer Simpson in for a head slap and communal "D'OH"?]
Well, OK; as everybody officially thought they knew, until Clements told us that "cat", in Athey never meant "cat" but meant "dog" and should always have been understood to mean "dog" even though the word in the test was literally “cat”; even though the SCC has allowed judges for almost 10 years to seemingly decide cases on the basis that “cat” in Athey meant “cat”, not "dog", because the SCC refused leave to appeal in every case where that issue was necessarily one of the grounds for appeal or would have had to be dealt with if the SCC had granted leave, regardless of what counsel thought were the issues; that white is black and black is white, and that, in Canada, parallel lines running north, drawn on the ground and kept on the ground, even those running through Alberta will eventually meet at the North Pole, or something like that – I know they will, readers: this is a rhetorical device – because most of the profession had, officially, forgotten what H. Dumpty J said about the meaning of words and power. Except of course many academics and a few practitioner academic-manqués who didn't count because, well, they didn't count. Perhaps this was because they wrote articles about theories which weren't what the judges of the provincial and territorial trial and appellate courts wanted to hear. Or perhaps because their articles were considered too long, by some, to be worth reading. Or perhaps, because, well, then judges and lawyers would have to explain what they meant rather than being able to write versions of "it's all common sense that X made a material contribution to the occurrence of Y because it made more than a trifling contribution". Or, better yet, give the assertion gravitas by adding a bit of Latin: "a more than de minimis connection" or a connection which was sufficiently causal (whatever that meant) because it was material as material meant no more than "falls outside the de minimis range". ("Minimis" was often misspelled as "minimus" but this was no doubt mostly because of cutting and pasting from previous instances of the misspelling.)
In any event, coming back from the tangent, Mr. Justice Binnie wrote, in Citadel, for the unanimous Court:
 ... As stated earlier, coverage under the OPCF 44R is dependent on the Vytlingams being able to demonstrate that their claim arose from the ownership of, or directly or indirectly from the use or operation of the Farmer vehicle. It is not enough to demonstrate that “but for” Farmer’s car the tort could not have been committed in the way that it was. To suggest that any time a car is used to transport people to the scene of a tort or a crime is sufficient to engage “inadequately insured motorist” coverage stretches the intended coverage until it snaps. The trial judge found that “but for” Farmer’s car the tortfeasors could not have transported the rocks weighing 27 and 30 pounds to the scene of the crime, but the insurer’s liability turned on the nature of the tort not on the size of the rocks.
 The claimant argues that the car was “integral” to this whole operation which was planned to include its use, but the test is concerned with the elements of the tort itself, which here consisted of dropping the rocks from a highway overpass, not transporting rocks across the countryside. As it was put by appellant’s counsel, “[n]o amount of carrying rocks all over the country for whatever purpose gives rise to one iota of civil liability. Liability comes from dropping those rocks” (transcript, at p. 9).
 The claimant also puts reliance on the use of the car to escape the crime scene, but by that time the tort giving rise to the liability was complete. The car-related activities are severable from the tort. The fact that the word “indirectly” appears in the OPCF 44R is not sufficient to overcome the fact that the tort was an intervening event wholly “severable” from the use and operation of the Farmer vehicle.
 Juriansz J.A., dissenting, concluded that the rock throwing was an independent act which broke the chain of causation (para. 80). I agree.
 The Vytlingams failed to establish that Farmer’s liability arose directly or indirectly out of the use or operation of Farmer’s vehicle within the meaning of the OPCF 44R. The appeal must therefore be allowed.
The injured person lost.
The move is equally explicit in Lumbermens. Again, Binnie J wrote for a unanimous Court.
 Can it be said that when a hunter steps away from his pick-up truck under cover of darkness, leaving the engine running, and negligently shoots at a target he cannot see 1,000 feet away, and hits a companion in the leg thinking him to be a deer, that the injury arose “directly or indirectly from the use or operation” of the insured truck within the meaning of s. 239(1) of the Insurance Act, R.S.O. 1990, c. I.8? A majority of the Ontario Court of Appeal gave an affirmative answer to this question: (2005), 2005 CanLII 19665 (ON CA), 76 O.R. (3d) 81. It reasoned that the addition in 1990 of the phrase “indirectly or indirectly” to s. 239(1)(b) of the Insurance Act “effectively removed the requirement of an unbroken chain of causation” (para. 102). It was sufficient, in its view, if the use or operation of a motor vehicle “in some manner contributes to or adds to the injury” (para. 105 (emphasis added by Borins J.A.)). The dissent, on the contrary, concluded that not every “circumstance or activity associated with the use or operation of a motor vehicle will . . . engage s. 239(1) of the Act and the corresponding coverage condition of a motor vehicle liability insurance policy” (para. 38), and that the negligent shooting “was an act independent of the ownership, use or operation of” the hunter’s truck (para. 62). I agree respectfully with the dissent. In my view, the appeal should be allowed.
 In a tragic case like the present, it is tempting to look to an insurer’s deep pockets as the only available source of compensation for a seriously injured and innocent victim. However, the insurance in this case is automobile insurance, and s. 239 requires the victim to demonstrate that the “liability imposed by law upon the insured [Wolfe]” is for “loss or damage . . . arising from the ownership or directly or indirectly from the use or operation of [the insured Wolfe’s] automobile”. Can it be said that Wolfe’s negligent shooting was fairly within the risk created by his use or operation of the insured truck, or did the use of the truck merely create an opportunity in time and space for the damage to be inflicted, without any causal connection direct or indirect to the legal basis of Wolfe’s tortious liability? Clearly, I think, the latter is the case. As Estey J. observed in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC),  1 S.C.R. 888, “the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract” (pp. 901-2).
 In my view, Cronk J.A. was correct to uphold the finding of the trial judge that the shooting was an act independent of the ownership, use or operation of Wolfe’s truck. The approach taken by the majority did not give adequate weight to Wolfe’s separate, distinct and intervening act of negligence in firing the rifle at a target 1,000 feet away that he could not see, and which turned out to be the unfortunate Mr. Herbison. As the Ontario Court of Appeal remarked in Alchimowicz v. Continental Insurance Co. of Canada (1996), 37 C.C.L.I. (2d) 284, “[a]s liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation” (para. 9). Amos itself rejected a simple “but for” test.
Again, the injured person lost.
Do you see a pattern here? I do and let's admit, as I often do when I explain what I did for a living for most of the past 4 decades before retiring to the sanctity and safety of Oxford, that I helped keep Canada a safe place for the insurance companies to operate profitably for the benefit of all the little old ladies who are the primary investors in insurance companies and whose survival depends on the dividends they receive from their investments in the insurers. (Or some version of that. I usually stick to the less subtle "helped to keep Canada safe for the poor, downtrodden ... [meaning I wait a few beats] insurance companies.")
I have to admit that I was wrong in my prediction of what would happen in Citadel and in Lumbermens. The injured person's lead counsel in Citadel is a friend. We were at an evening continuing education seminar – I went at least in part because dinner was part of the package, too - where he was one of the speakers. I can't, now, recall whether it was before the case was argued at the SCC or while judgment was reserved. In any event, I said to him, given the presence of Binnie J. on the court, and in light of comments that McLachlin CJ had made early in her career on the Court, that I thought it unlikely the Court would use the metaphysical "purposive" approach to hold that while the acts literally, factually, satisfy the policy or legislation wording (meaning) so that stopping there there is coverage, the facts don't satisfy the legal ("purposive") meaning.
I was wrong.
I was, of course, "happy" to be wrong in my capacity as an insurance company lawyer as I was now able to give a number of clients the advice they wanted me to give them, not the advice I thought I would have to give them.
So, as you wrote with my interpolations: "How would one strictly construe “any privilege of the law of evidence?” except to also include lawyer-client privilege. After all, in context, “any” clearly, necessarly, obviously means all. What else can it mean that makes any sense, let alone reasonable sense? “The balance of the phrase has an obvious technical legal meaning, which invites one to look to the law of evidence."
Well "yes", the SCC might say. “You are right to a limited extent but you missed the complete picture. ‘Any’ does mean ‘all’, factually. But it doesn't mean ‘all’, legally and the legal meaning required the “purposive” analysis which we did and which produced the answer we found. The legal meaning is what is required, nothing more, nothing less. That's what the ABQB missed. And, while we might disagree with our now colleague Justice Brown on the correct explanation, we say that he understood that issue. After all, given all that he has written about the analogous issue in the realm of causation, how could he not? With respect, Professor Hutchinson, you of all people should know that the statute has to apply both factually and legally. We say that, just like the ABQB judge, you missed that."
That's enough for today. The next post in the article series will be #7. The next section to be posted begins: 'Now I'd like to turn to another issue: that of judicial hubris. You did, after all, raise this in penultimate paragraph of your critique, although you called it "professional hubris".'