A battle over Bill 29 and a watchdog's powers was settled. Not anymore.
Case related to authority of information commissioner is headed to court
Newfoundland and Labrador's Liberal government has begun classifying some documents as secret and beyond the review of the province's information and privacy commissioner — the same thing its leadership once assailed the Tories for doing, during the Bill 29 debate.
The province's justice minister is defending his department's decision to effectively cut the powers of the transparency watchdog, by refusing to let him review some documents the government says are covered by solicitor-client privilege.
"There is a big difference between providing and being compelled to provide it," Andrew Parsons told CBC News.
"What we're doing is hopefully going to go to court to get an interpretation of this particular section."
Parsons pointed to a 2016 Supreme Court of Canada decision, which found there must be "clear and unambiguous legislative intent" to set aside solicitor-client privilege. That case involved Alberta's privacy law and privacy watchdog.
Asked if he would change the wording of the legislation in this province to enshrine the Newfoundland and Labrador watchdog's powers, Parsons said the entire law is scheduled to be reviewed next year, and that will likely be brought up then.
The Supreme Court of Canada decision came out three years ago. So why is the government here making an issue of this now?
"Every case is different on its own merits and its own facts, and it was felt this is one where we have to apply that," Parsons said.
The new information and privacy commissioner, Michael Harvey, declined interview requests.
But in his report issued last week, Harvey disagreed that the powers of the commissioner have been limited by the 2016 decision.
"Our view is that it has not done so," the report noted.
To back that up, Harvey cited comments made by the committee that reviewed and rewrote this province's law four years ago, and by the then deputy premier when the legislation was tabled in the House of Assembly.
The commissioner acts as a watchdog to ensure the government is following the law.
'Iron curtain government'
While it is a somewhat arcane legal issue at play, there are significant political overtones to the current dispute.
The Liberal government's path to power was paved with promises about openness and transparency, as they lashed the Tories over excessive secrecy.
Bill 29, tabled by the PC government in June 2012, brought in an array of measures to squeeze the public's right to know, and weaken the powers of the legislative transparency watchdog.
That included stripping the commissioner's power to review solicitor-client privilege documents.
At the time, the Liberals issued dire warnings about the move.
At the forefront was then justice critic Andrew Parsons.
"It is an iron curtain government that we are moving into here. We are moving into — again, I have heard these terms out there, repressive, secretive, draconian, regressive, these all apply," Parsons said during the Bill 29 debate on June 11, 2012.
How is he supposed to determine what solicitor-client privilege applies to, if he is not even given a chance to look at them in the first place?- Andrew Parsons in the House of Assembly, June 11, 2012
"You can check off all these boxes, Mr. Speaker, because they all apply in this case. And one of the forms of misuse would be for the Department of Justice to claim a blanket privilege for files."
Parsons said the information commissioner was "basically kicked to the curb" by the Bill 29 changes.
"How is he supposed to determine what solicitor-client privilege applies to, if he is not even given a chance to look at them in the first place?" Parsons told the legislature at the time.
"Again, this is an independent officer of this House and he is being cut out of the loop here because government doesn't want to let anything go."
The same day, Dwight Ball — the then Liberal Opposition leader, and now premier — said the change "takes the teeth away" from the legislation.
Bill 29 ended up passing after a 70-plus hour Opposition filibuster, and the Liberals made repealing the restrictive access-to-information law a key plank in their platform to win government.
The Tories, under public pressure with an election approaching, would later appoint a blue-ribbon panel to look at the legislation.
That review found "abuse" of that very same solicitor-client exemption.
'Solicitor-client privilege was being abused'
Clyde Wells — a former Liberal premier and chief justice — chaired the review.
"It's clear that solicitor-client privilege was being abused and being asserted to prevent the release of the documents," Wells said during hearings on Aug. 19, 2014.
The Wells committee recommended reinstating the watchdog's authority to review solicitor-client privilege, among a suite of sweeping changes to loosen laws that had been tightened by Bill 29.
The new open-records law passed in 2015.
Fast-forward to today, and a question for the current justice minister.
The Wells committee said the watchdog should have that review power, and basically wrote the law that is currently in effect.
Was Clyde Wells wrong?
"Well, certainly I'm not going to say that, but I will say that the Supreme Court of Canada and the justices of the highest court in our land has said that similar language did not stand up to that pressure," Parsons said.
"What I'd like to think we're going to do here — one of the best parts of the act is it has that automatic statutory review. So what we need to do now is we've had five years post the 2015 law. Let's look at it. And this is just one of the issues that I think will come up."
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