“The Adjudicator concluded that the Children’s Lawyer’s “confidentiality concerns … can be addressed by exemptions under the applicable access to information legislation.” In doing so, she conflated solicitor-client privilege with confidentiality. The former is caught by the exemption at s. 19 of FIPPA (Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31) the latter is not. And yet, it is the latter that gives rise to the most sensitive information about the child, and which is deserving of special protection.
Information may be confidential without being privileged. As the British Columbia Court of Appeal explained in British Columbia (Securities Commission) v. B.D.S., 2003 BCCA 244, 13 B.C.L.R. (4th) 107, at para 45:
There is no doubt that lawyers are under an obligation to keep confidential all documents and other communications made to them by their clients, but not all such communications are subject to solicitor-client privilege and a claim of privilege does not convert non-privileged documents into privileged documents.
The Children’s Lawyer gathers information from and about her child clients in numerous ways: with assistance from social workers; through therapists, school teachers; and so on. This information is necessary for the Children’s Lawyer to properly represent the child. It is crucial in order for the child’s voice to be heard.
As Mesbur J. explained in Catholic Children’s Aid Society of Toronto v. S.S.B., 2013 ONSC 4560, 35 R.F.L. (7th) 178, at para. 21:
When [the Children’s Lawyer] takes a position on behalf of a child, child’s counsel will ascertain the child’s views and preferences. In doing so, it will consider the independence, strength and consistency of the child’s views and preferences; the circumstances surrounding those views and preferences, and all other relevant evidence about the child’s interests. It is in this context the [Children’s Lawyer] relies on a clinical investigator to assist counsel in determining those views and preferences so that it can advocate a position on behalf of the child. Essentially, the clinical investigator assists counsel in ascertaining its client’s reasonable instructions; that is, the position to be taken on behalf of the child. [Footnote omitted.]
While some records may be subject to the solicitor-client exemption, others may not. These include the child’s views expressed to teachers, counsellors, therapists, friends, and parents of friends. Yet, the Children’s Lawyer’s duty of confidentiality applies to all records.”