“The American aristocracy is at the attorneys’ bar and on the judges’ bench.”

In On Democracy in America, Alexis de Tocqueville argued that lawyers had already emerged as the aristocratic class of the United States of America by the 1830s. But his observation would apply readily to most Common Law jurisdictions, thus including Canada, because we all rely on a cumulative and evolving body of precedent, the principle of stare decisis, or judge-made law.

The United States firmly rejected peerages and titles of emolument in its Constitution in the 1780s. Canada likewise lacks a hereditary legislative body like the House of Lords – even though the Constitutional Act, 1791 gave the Governors of Upper Canada and Lower Canada the authority to create hereditary peerages for the Legislative Councils – so the legal profession in both the United States and Canada has assumed the role and functions of the aristocracy in Europe.  

Tocqueville observed:

The aristocratic character that I perceive in the spirit of the lawyer is much more pronounced in the United States and England than in any other country. That is due not only to the study that English and American lawyers make of the laws, but to the very nature of the legislation and to the position that these interpreters occupy in these two peoples.

The English and the Americans have preserved the legislation of precedents; that is to say, they continue to draw from the opinions and legal decisions of their fathers the opinions that they will hold in matters of law and the decisions that they will take. In an English or an American lawyer, taste and respect for what is old is therefore almost always joined with love of what is regular and legal. This has still another influence on the turn of mind of lawyers, and consequently on the course of society.

In America there are neither nobles nor men of letters, and the people distrust the rich. Lawyers therefore form the superior political class and the most intellectual portion of society. Thus, they could only lose by innovating: this adds a conservative interest to the natural taste that they have for order.

If one asked me where I place the American aristocracy, I would respond without hesitation that it is not among the rich, who have no common bond that brings them together. The American aristocracy is at the attorneys’ bar and on the judges’ bench. The more one reflects on what takes place in the United States, the more one feels convinced that the body of lawyers forms the most powerful and so to speak the lone counterweight to democracy in this country. [1]

Tocqueville regarded the legal profession, like all aristocratic classes, as a conservative and exclusive force seeking its own self-preservation above all. The culture of rights litigation which has emerged since the second half of the 20^th century and in Canada after Patriation has perhaps eroded what Tocqueville saw as the conservative character (as in resistant to change, deference to precedent, and love of what is old) of the legal profession[2], but it has not blunted lawyers’ enthusiasm for strong in-group, out-group distinctions; the legal profession’s preservation of its own privileges has continued unabated – or grown stronger still, if anything.

But I recently stumbled upon a farcical and frustrating example of the privileges that the legal profession so graciously carves out for itself over and above even the cabinet ministers whom they serve within the civil service. In the definitions section of the Access to Information Act, Parliament clearly states: “The purpose of this Act is to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.”[3] Section 2 goes on to say:

(2) In furtherance of that purpose,

(a) Part 1 extends the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government; and

(b) Part 2 sets out requirements for the proactive publication of information.[4]

The statute here presumes a “right of access” and makes allowances for “limited and specific necessary exceptions” to that right outlined in sections 13 to 26. These provisions carve out the sort of exemptions necessary to maintain state secrets in certain areas, either give departments the discretion to redact or not (“may refuse to disclosure”) information or mandate that departments “shall refuse to disclose” information altogether, and fall under the general categories of “Responsibilities of Government” “Personal Information,” “Third Party Information,” and, lastly, “Operations of Government.” The first category, “Responsibilities of Government,” mandates that federal department must refuse to disclosure information obtained in confidence from the governments of a foreign state, province, or indigenous body within Canada, as well as that obtained from international organisations. Since the Government of Canada did not create this sort of information originally, it would be unfair and unreasonable for the Government of Canada to disclose it; the originating organisation should be allowed to make that decision. Under the same rationale, departments shall also refuse to disclosure “Personal Information” and “Third Party Information.”  

But in the other classes of subjects under “Responsibilities of Government”, the federal department may refuse to disclose information (i.e, redact it), but retains the discretion to release such information unredacted. These include federal-provincial relations (section 14), international affairs and defence (section 15), law enforcement investigations (section 16), and the economic interests of Canada (section 18). In contrast, Parliament again stipulates in section 16 that independent officers of parliament like the Privacy Commissioner, Auditor General, Information Commissioner, and Official Languages Commissioner, as well as now the Secretariat of the National Security and Intelligence Committee of Parliamentarians, must refuse to disclose information on their activities. This exemption protects the independence and integrity of the investigations, examinations, and audits that these review bodies carry out.

This brings us to the last category which contains the most glaring discrepancy designed to protect the privileges and prestige of the legal profession. “Operations of Government” includes three classes of subjects: information under cabinet confidence (section 21), internal audits (section 22), and information under solicitor-client privilege (section 23). Sections 21(1)(a-d) states that departments may redact information under cabinet confidence if and only if it is less than twenty years; any information older than twenty years under cabinet confidence must be released.

21 (1) The head of a government institution may refuse to disclose any record requested under this Part that contains

(a) advice or recommendations developed by or for a government institution or a minister of the Crown,

(b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate,

(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or

(d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,

if the record came into existence less than twenty years prior to the request.

The only exemptions to the 20-year rule, contained in section 21(2)(a) and (b), apply to matters affecting “the rights of a person” and reports prepared by outside consultants. In practical terms, information under cabinet confidence would include things like memoranda to cabinet, any minutes or notes of discussions and deliberations of such policies within cabinet, and various types of executive instruments.

Section 23 much more succinctly protects information under solicitor-client privilege in perpetuity:

23. The head of a government institution may refuse to disclose any record requested under this Part that contains information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

This would encompass legal opinions and deliberations drafted by government lawyers that cabinet ministers consider and discuss alongside the memoranda to cabinet which are released after twenty years. More preposterously still, memoranda to cabinet or briefing notes on the one hand and legal opinions on the other can contain substantively similar information, which means that former would be released without redactions after twenty years while the latter could be redacted in perpetuity not because of the content that they contain but because of who wrote them.

Parliament placed cabinet confidence and solicitor-client privilege in the same class of “Operations of Government” because of the two types of information are so similar. Information under cabinet confidence include matters of high policy, defence, statecraft, and perhaps even matters of life and death; it is, in short, either just as sensitive as or more sensitive than information under solicitor-client privilege. Yet the Access to Information Act grants departments the discretion to redact solicitor-client privilege in perpetuity, potentially even after anyone who wrote and approved the briefing note have all died and any consequences of the advice ceased to matter. This is not about protecting the national interest of Canada; it is about perpetuating the power and privilege and prestige of the legal profession – the de facto aristocracy of Canada. The right to redact all information under solicitor-client privilege in perpetuity contradicts the very purpose of the Access to Information Act that the “necessary exceptions to the right of access should be limited and specific” – this exemption capturing potentially anything written by a lawyer for all time, without limit. Parliament should correct this discrepancy and put solicitor-client privilege on equal footing with cabinet confidence: that both must be released after 20 years.  

Notes

[1] Alexis de Tocqueville, translated and edited by Harvey C. Mansfield and Delba Winthrop, “On What Tempers the Tyranny of the Majority in the United States – On the Spirit of the Lawyer in the United States and How It Serves as a Counterweight to Democracy,” Chapter 8 in Volume 1, Part 2 of Democracy in America (Chicago: University of Chicago Press, 2000)  

[2] Phil C. Neal, “De Tocqueville and the Role of the Lawyer in Society,” Marquette Law Review 50, no. 4 (June 1967): 608-609.

[3] Access to Information Act (Canada), R.S.C., 1985, c.A-1, s.2 (1).

[4] Access to Information Act (Canada), R.S.C., 1985, c.A-1, s.2 (2) (a-b).