Begetikong Anishnabe v. Canada ( Minister of Indian Affairs and Northern Development )
T-1153-97
Dubé J.
27/10/97
8 pp.
Application for order directing respondent to release to Band certified copy of legal opinion prepared by Department of Justice, submitted to Minister regarding Band's statement of claim under comprehensive land claims policy-Minister objecting to production of legal opinion on ground of privilege as containing legal advice from legally qualified law practitioner to client-(1) Band alleging Minister not meeting third criterion required to establish privilege: communication must have been intended to be confidential-Although Minister not filing affidavit to effect intended to keep document confidential, document stamped "Protected/Solicitor-Client"; Minister's position throughout proceedings to protect confidentiality of document; filed in Court in sealed envelope to preserve confidentiality pursuant to specific Court order-No evidence Minister intended to disclose confidential document-Legal opinion privileged-(2) Band submitting Minister expressly waiving privilege when sent letter to Band voluntarily disclosing substance of solicitor-client communication-Alternatively Band arguing waiver by implication since Minister may not be allowed, after disclosing that much in letter, to withhold remainder of legal opinion-Minister not withholding confidential information which considered damaging, or selecting merely one of several recommendations-Opinion providing legal review of comprehensive claims submitted by Band, summary of Band's claim, Band's arguments, legal analysis, conclusion no basis in law for accepting Band's claim-Minister not waiving privilege either expressly or impliedly-Merely referring in letter to legal advice on which based opinion not waiver-Band relying on K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs), [1996] F.C.J. No. 30 (T.D.) (QL) wherein some sections of privileged document revealed to applicant, others denied-Rothstein J. properly held all material or none ought to be disclosed so as to present complete picture to Court-Minister standing or falling on grounds in letter-Not hiding behind legal opinion-Minister not inadvertently waiving or releasing document either through reference at trial, in pleading or at discovery, or in affidavit-Merely stating sought, received legal opinion from Department of Justice to which opinion entitled and on which relies in accordance with Acceptance of Claims-(3) Band contending because of special fiduciary relationship between Crown, Indians, legitimate entitlement in favour of Band to access to Minister's opinion-Where trust relationship, no privilege attaching to communications between solicitor and trustee as against beneficiaries-But legal advice sought by trustee not necessarily belonging automatically to Indians when legal advice sought in interest of all interested parties-Crown acting not only on behalf of interest of Indians, but also accountable to whole Canadian population: Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762 (C.A.)-Special fiduciary relationship not favouring disclosure herein.