Are taxpayers entitled to know how much money the government has spent on a court battle that has been going on for more than 10 years? That is the question before the B.C. Court of Appeal on June 24. The Canadian Constitution Foundation, a charitable organization that brought this case and appeal, is arguing that the answer is yes. Taxpayers ought to know.
The B.C. government has spent more than a decade in court fighting to restrict access to healthcare. B.C. is fighting a constitutional challenge to a law that restricts patients from buying health insurance in the case Cambie v. Attorney-General of B.C. This is a law that keeps sick patients on waiting lists. It is a law that extends patients’ suffering and hurts their health. The CCF is supporting the challenge of the law.
That is why in 2017, CCF filed a freedom of information request asking the B.C. government to come clean on how much has been spent on this case.
The request is just for one number — the total amount spent on the case by the government since 2009. Not for any breakdown of that cost.
When the CCF first made the request, B.C. bureaucrats prepared a document that contained a number with the total cost.
We know it’s a big number, but we don’t know how big. Because once that document was ready to be shared, the B.C. government stepped in. They refused to disclose the document, and said the number is subject to solicitor-client privilege.
The government claims that revealing this one single number — the total cost of litigation to taxpayers — will reveal some secret communications or strategy. It won’t. Nothing could possibly be gleaned from this number other than the fact that the government has spent a lot of your money.
We already know that the case is important to the government, and that it is hard-fought. The number is likely very high — certainly in the millions. Because the litigation has been going on for over a decade, the government has called many expert witnesses, and the trial alone lasted over 100 days.
Revealing how much the government has spent may be embarrassing for some politicians. But solicitor-client privilege does not exist to prevent the government from being embarrassed.
What the B.C. government is trying to do is stretch a basic principle of our legal system — solicitor-client privilege — beyond its natural limits. Everyone agrees that this privilege is important. For example, a criminal lawyer cannot be forced to reveal how she has advised her client. But in this case, nothing could possibly be revealed by disclosing the large sum of money the government has spent. And while solicitor-client privilege serves a public purpose, so too does freedom of information legislation, which keeps the government accountable by allowing the public to access documents.
Government litigation costs should not be presumptively kept secret. Treating these costs as presumptively privileged would create a new and worrying precedent. Government litigation costs are frequently subject to freedom of information requests, and governments across Canada will often disclose the costs without any objection. Presumptive privilege could end this routine disclosure in the public interest. There is nothing special or novel about the new case before the Court of Appeal, other than that the cost that will be revealed is exceptionally high.
And that is exactly why the CCF wants to know. If the government is going to spend millions of dollars — possibly tens of millions of dollars — fighting against patients’ Charter rights, they need to answer for it. Even if it leaves some politicians red-faced.
This article was originally published in the Vancouver Sun.
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