The PEI government is failing a basic tenet of democracy by refusing to publicly release 273 pages of legal advice obtained prior to implementing the PEI Vax Pass last fall, says Wayne MacKay, professor emeritus of law at Dalhousie University.

Solicitor-client privilege is a very well-established exception to freedom of information law, Mr MacKay says. However, as vaccine passports and pandemic policies in general are such matters of significance, it is even more incumbent on governments to be as clear and transparent as possible, he said.

“By failing to clearly explain and be transparent about why so much was not disclosed, the whole exercise was revealed as a waste of time and money,” Mr MacKay said.

The Graphic requested, under the province’s Freedom of Information and Protection of Privacy Act, all legal opinions obtained in development of the Vax Pass, implemented October 5, 2021. It requires Islanders to provide proof of vaccination to enter non-essential businesses such as dine-in restaurants, sporting events, theatres and other activities.

While government released several drafts, containing only minor differences in text, everything else was withheld citing ‘privileged information.’

PEI’s FOIPP legislation allows a public body to refuse to disclose any document that falls under any legal privilege, including solicitor-client or parliamentary privilege. Solicitor-client privilege is the principle that all communications between a client and their legal representation is confidential and can’t be disclosed without the client’s permission.

Mr MacKay said the high volume of redacted pages suggest the province did indeed seek “a lot of significant legal advice” before drafting its policy, making sure it meets all the statutory and constitutional tests.

“It shows that it wasn’t exactly a straight-forward (answer). They didn’t say ‘it was fine,’ they didn’t do a three-liner,” Mr MacKay said.

But he can only guess at the contents of those mystery documents. He said it should not be an issue for government to offer more detail on the type of information being withheld.

“Was there an extensive legal report? Did the province consult eight different lawyers? Who knows?” he said. “It leaves us, the readers or whoever, to infer and make assumptions that we don’t know for a fact.”

Denise Doiron, PEI’s Information and Privacy Commissioner, couldn’t comment on the specific request, but said solicitor-client privilege is considered a fundamental right of the client - in this case, the government.

“The basic starting point for a document to qualify for solicitor-client privilege is that it must be a communication between a client and their solicitor, which entails the seeking or giving of legal advice, and is intended by the parties (ie. the client and solicitor) to be confidential,” she said.

The solicitor-client privilege, in the context of freedom of information law, is considered so important that precedents have been set which allow governments to withhold such documents even from information commissioners such as Ms Doiron.

Ms Doiron referred to a Supreme Court of Canada decision which interpreted provisions in Alberta’s Freedom of Information Act as meaning public bodies aren’t required to provide the commissioner with documents if they fall under solicitor-client privilege.

Ms Dorion said when her office reviews such documents, public bodies will present affidavits about the records without needing to show the privileged information itself.

“It has been a challenge to work through this new process, but I would not consider public bodies to be using it as a roadblock,” Ms Doiron said.

When it came to the draft and final copies of the policy itself, Mr MacKay said he was interested in the “considerable detail” on accepted exemptions to the pass. Only medical exceptions approved by the Chief Public Health Office were accepted.

“Most other policies I’ve seen don’t specifically say categorically,” that such things as religious exceptions were not accepted, Mr MacKay said. Even so, he didn’t have an issue with PEI not allowing religious exceptions, as he’s not aware of any religious objections to the vaccine.

Mr MacKay said while it’s important to respect the constitutional rights of Canadians - and even more so during a crisis, as those rights are more at risk - he points out Section 1 of the Canadian constitution which allows for “reasonable limits” to our rights and freedoms as can be justified in a free and democratic society.

“The general population has supported (the use) of significant restrictions to keep us safe and healthy,” Mr MacKay said. “PEI has been a bit stricter in terms of restrictions compared to other provinces … and until Omicron, it’s been quite successful.”

The provincial government did not respond to multiple requests for information from The Graphic.

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