Criminal Lawyers’ Association: Freedom of Expression and the Disclosure of Information by Government

On December 11, 2008, the Supreme Court of Canada (“SCC”) heard The Criminal Lawyers’ Association v Ontario (Public Safety and Security), a case from the Ontario Court of Appeal (see 2007 ONCA 392).

In 1996, the judge in a criminal proceeding involving the murder of mob member Domenic Racco granted a stay of the proceedings finding that the accused individuals’ Charter rights been violated resulting from abusive conduct by various state officials, including the police. Following this finding, the Ontario Provincial Police commenced an investigation of the police and prosecution conduct, concluding that there was no evidence of any misconduct or attempts to obstruct justice. After the outcome of the investigation, the Criminal Lawyers’ Association, an organization that oversees issues related to the integrity of the Canadian criminal justice system, applied for access to records involving the Ontario Provincial Police review under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31.

Their request, however, was rejected by the Ministry as they denied access to various documents by claiming sections 14, 19 and 21 (law enforcement records, solicitor-client privilege and personal privacy respectively) exemptions under the Act. The Criminal Lawyers’ Association appealed this finding, where it was found that the exemptions were upheld, however, section 23, the “compelling public interest” test superseded the section 21 exemption relating to personal privacy. Despite this, section 23 could not be applied to the other two exemptions since they were specifically excluded from this section.

The Criminal Lawyers’ Association appealed this decision to the Ontario Court of Appeal, claiming that under section 2(b) of the Charter, freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, or in accordance with the constitutional principle of democracy, the public should have a “right of access to government information”. The Ontario Court of Appeal allowed their appeal, finding that the section 23 failure to allow the public interest override to apply to the section 14 and 19 exemptions infringed section 2(b) of the Charter, which was not justified by section 1. For a more in-depth analysis of the case, please see Eric Baum’s September 26th post.

While the Criminal Lawyers’ Association’s position is understandable, as it only seems fair that, in accordance with the principle of democracy and the right to free expression, any provincial or federal information document with a “compelling public interest” should be disclosed to the public, the points raised by the Ministry of Public Safety and Security in opposition present an alternative way of viewing the potential implications of including such a right under the Charter right to freedom of expression. From the police perspective, investigators may be more reluctant to make notes on cases or lay charges and the public may feel uncomfortable making statements to the police regarding criminal matters under the concern that their documents could potentially become public.

Similarly, this may disrupt the administration of justice if the private documents of judges made during the course of a case are made public. Mahmud Jamal, a lawyer for the Canadian Bar Association, also pointed out in an article by Kirk Makin in The Globe and Mail, “Access to Information Not a Right, Top Court Told,” that the free flow of legal advice between government figures who consult lawyers regarding policy issues may be chilled explaining, “We want governments, in assessing whether waterboarding is torture, to have the assistance of counsel.”

While there are legitimate concerns raised in this appeal to the SCC, it is also important to consider that in deciding whether the Charter’s freedom of expression guarantee places an onus on governments to disclose information with “compelling public interest,” we must consider that the Charter is a “living tree” doctrine, that is meant to be interpreted in a progressive approach in order to allow it to adapt to the modern-day reality and concerns. As David Stratas, the lawyer for the Criminal Lawyers’ Association, explained, the Charter guarantee of freedom of expression is about “protecting and promoting the free and vibrant circulation of communications that is necessary to sustain and enhance democracy.” With such important issues at play in this case, it is certainly one to keep an eye on as we wait for the final word from the SCC.