The Supreme Court of Canada has recognized a limited constitutional right to access government documents. In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, (2010 SCC 23) released on June 17 after an extraordinary 18 months under reserve, the Court held that the scope of s. 2 (b) Charter (freedom of expression) includes a right to access government documents, but only where access is necessary to permit meaningful discussion. The Court did not elaborate on what would constitute “meaningful discussion”, and has left unanswered many other questions about when and how the constitutional right to access government information can be enforced.
The case has a long history. In 1997, a judge of the Ontario Superior Court stayed murder charges arising from a mob “hit” in 1983, because of abusive conduct by police and prosecutors, issuing a scathing judgment critical of the police and Crown. The Ontario Provincial Police conducted a review of the investigation and subsequent prosecution. Nine months later, in a terse press release, the OPP declared it had found “no misconduct” on the part of state officials.
The stark contrast between the Court’s decision and the OPP press release prompted the Criminal Lawyers’ Association to request the OPP report and records underlying the OPP’s investigation, pursuant to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA).
The Ministry of the Solicitor General refused the request, stating that the records were exempt from disclosure under law enforcement and solicitor-client privilege exemptions in FIPPA. Although s. 23 of FIPPA contains a “public interest override” whereby exempt records may be disclosed if “a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption”, the override does not apply to the law enforcement and solicitor-client privilege exemptions..
The Information and Privacy Commissioner of Ontario upheld the Ministry’s decision. The case went to the Ontario Divisional Court, where the CLA argued argued that the non-disclosure infringed freedom of expression under section 2(b) of the Charter. The Divisional Court rejected the CLA’s arguments and upheld the non-disclosure, stating that there is no constitutional “right to know.”
The Ontario Court of Appeal overturned the Divisional Court decision. A majority of the Court held that s. 23 infringed s. 2(b) of the Charter and should extend the public interest override to records related to law enforcement and solicitor-client privilege. In a strong dissent, Juriansz J.A. stated that s. 2(b) does not create a right of access to information in the possession or under the control of a government.
Supreme Court Decision
The Supreme Court decision gives and takes. The Court has recognized that a right of access exists “only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints.” On the other hand, the Court refused to recognize a “general right of access”, treating “access [as] a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government.” It found that the limitations in s. 23 of FIPPA were constitutional, but seemed to do so on the basis that the public interest must be considered when considering the law enforcement and privilege exemptions under ss. 14 and 19, which are discretionary. As a result, the Court ruled that the matter should be reconsidered by the Information Commissioner, suggesting that at least some of the report and records should be released. As the Court stated: ”The absence of reasons and the failure of the Minister to order disclosure of any part of the voluminous documents sought at the very least raise concerns that should have been investigated by the Commissioner. We are satisfied that had the Commissioner conducted an appropriate review of the Minister’s decision, he might well have reached a different conclusion as to whether the Minister’s discretion under s. 14 was properly exercised.”
The good news is that the court has recognized a limited constitutional right of access to documents and information from government. And it’s also encouraging that the court has made clear that the public interest must be considered by government when exercising discretion whether to release information . So it is an important, albeit, baby step towards putting more teeth into access to information laws. As well, the referral back to the Commission suggests that the Court felt that more should be released in this case.
On the other hand, the court has given little guidance on when the Charter interest will be engaged, and it is quite troubling that s. 2(b)will only apply to “meaningful discussion of matters of public interest” whatever that is. This raises concerns about the court narrowing the scope of s. 2(b) generally. The Court was clearly concerned that the access right not be so broad that it extends into traditionally secret areas, such as cabinet deliberations or the inner workings of Courts, and this may have motivated the unusual step it took in carving out limits within s. 2(b) of the Charter rather than analysing exceptions under the reasonable limits clause in s. 1.
It is also disappointing that the Court did not recognize a general right of access to information under the Charter. This is the trend in most democracies and in international law – all of which was presented to the court by the Intervener, the Canadian Newspaper Association. The court has previously emphasized that freedom of expression includes the right to receive information, and recognized, of course, that access to information is very important in a democracy. The Court had a great opportunity to send that message here, and its failure to do so confirms, sadly, that Canada – once a leader in promoting a right to information – now may lag behind other countries. More cases will need to be brought to the Court in order to bring more clarity to the issue. For example, the SCC is going to hear another major case this fall dealing with whether the federal Access to Information Act applies to Minister’s offices and their immediate political staff.
Paul Schabas and Ryder Gilliland were counsel for the Interveners, Canadian Newspaper Association, the Canadian Association of Journalists and the Canadian Media Lawyers’ Association. Their colleagues at Blake, Cassels & Graydon LLP, Catherine Beagan Flood and Iris Fischer, acted for the Intervener the British Columbia Civil Liberties Association.