Do Canadians Have a Right to Information under the Charter?

Introduction

This season’s Supreme Court of Canada (“SCC”) docket promises yet another round of exciting and potentially ground-breaking judgments. One case in particular, however, holds the promise of drastically changing the contours of Access to Information legislation in Ontario and beyond. Tucked away in the SCC’s December schedule, Ministry of Public Safety and Security (Formerly Solicitor General), et al v Criminal Lawyers’ Association might also redefine one of our most fundamental Charter freedoms.

Criminal Proceedings

The body of Domenic Racco was found in 1983, the victim of an alleged “mob hit.” In 1985, four men were charged with Racco’s murder and pleaded guilty to charges of being an accessory to murder and conspiracy to commit murder. Five years later, two other men were charged. Although initially convicted of first degree murder in 1991, their appeal was allowed and a new trial was ordered.

In 1996, during the new trial’s pre-trial motions, allegations of police and Crown misconduct were revealed. A motion for a stay of proceedings was heard by Glithero J., who determined that significant violations of the accused persons’ section 7 and 11(d) Charter rights had occurred. Among other things, these violations “involv[ed] deliberate non-disclosure, deliberate editing of useful information, [and] negligent breach of the duty to maintain original evidence.”

In light of the motion judge’s findings, the Hamilton-Wentworth Regional Police and Halton Regional Police asked the OPP to investigate the conduct of the police and prosecution. On April 3, 1998, the OPP issued a briefly-worded, one paragraph press release, which concluded:

The investigation into the missing audio tape found no evidence that the officers attempted to obstruct justice by destroying or withholding a vital piece of evidence. The investigation also found no evidence that information withheld from defence was done deliberately and with the intent to obstruct justice.

Access to Information & Judicial Review

In response to the apparent discrepancy between the OPP’s statement and the abusive conduct found by Glithero J., the Criminal Lawyers’ Association (“CLA”) submitted a request under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F 31 [FIPPA] to the Ministry of Public Safety and Security (“Ministry”), seeking records concerning the OPP’s investigation. The Ministry, however, refused to disclose its records pursuant to FIPPA’s s. 14 (law enforcement), s. 19 (solicitor-client privilege) and s. 21 (personal privacy) exemptions.

On appeal, the Information and Privacy Commission (“IPC”) upheld the Ministry’s exemptions. The IPC then considered whether it was, nonetheless, appropriate to apply FIPPA’s public interest override (s. 23) to the exemptions. Whereas the IPC found there to be compelling public interest in the disclosure of the information falling under the personal privacy exemption, the override was deemed to be statute-barred from application to the law enforcement and solicitor-client exemptions. This was the case, the IPC noted, because the Legislature had intentionally and validly insulated these exemptions from the public interest override.

On application for judicial review, the Divisional Court rejected the CLA’s submission that under section 2(b) of the Charter, Canadians have a guaranteed right to access to government information. Rather, it was decided that the public’s right of access to such information is a privilege rightly bestowed, limited or revoked by statute. Once again, the CLA appealed.

Ontario Court of Appeal

On May 25, 2007 the Court of Appeal released its judgment. In a split decision, the OCA concluded that the Divisional Court had been misguided in its focus upon a supposed “right to know” under the Charter. Rather, LaForme J.A., writing for the majority, was largely able to side-step this larger and considerably more contentious Charter question by focusing on the purpose and structure of the FIPPA scheme. He found that because FIPPA is primarily intended to assist in the exercise of expression, on the facts of this case, s. 23 ultimately served to restrict content-based expression in both purpose and effect.

After further determining that s. 23 “fail[ed] on all aspects of the proportionality analysis” under the Oakes Test, the matter was remitted to the IPC for reconsideration. This time, however, the IPC was instructed to read in the words “14 and 19” into s.23 of the Act, thereby giving the IPC a new-found power to weigh the public interest when evaluating the assertion of the law enforcement and solicitor-client exemptions.

While many commentators view the majority’s decision as an important step in bringing Canadian law closer in tune with the ideals of governmental transparency and openness, a hard-hitting dissent by Juriansz J.A. serves to complicate the decision in a number of important ways.

In his dissent, Juriansz J.A. refocused the OCA’s attention on whether there is, or ought to be, a judicially-recognized “right to know” under s. 2(b) of the Charter. Integral to his dissent was the legislative history of 2(b), which Juriansz J.A. rehearsed in significant detail. Specifically, he examined the fact that an explicit ‘Right to Information’ was considered and intentionally omitted from inclusion by the Charter’s drafters:

In my view…[i]t would be a “very big step” for the courts to interpret the Charter as guaranteeing a right of access to government information when such a right was proposed, considered and rejected by Canada’s Parliamentary representatives. The framers’ intent to exclude the right of access to government information from the Charter must be given significant weight in this case.

Furthermore, Juriansz J.A. noted that the CLA had identified no change in societal conditions since the Charter’s drafting that would necessitate such a radical departure from the drafters’ intent.

Juriansz J.A. went on to determine that although the legislation prevents the CLA from accessing certain information held by the government, it did not prevent the CLA from freely expressing its opinion regarding the discrepancy between Glithero J.’s findings and those of the OPP review. The question, thus, became whether 2(b) imposed upon the government an obligation to facilitate CLA’s ability to make such expression. For, as Juriansz J.A. noted at para. 150:

There is no “method or location” of any expression to consider. It is not known what form the CLA’s comments will take or the location of their delivery. It is even possible that the CLA might decide not to make comment should it receive the OPP report. While I agree that one should take an expansive view of what is “expressive activity”, I would conclude that in this case there is no expressive activity at issue. The CLA cannot escape the fact that its real complaint is that the government failed to disclose information and facilitate its proposed expression.

Ultimately, in this commentator’s opinion, there is significant merit to both the majority decision and the dissent. While from a broader perspective, it is unquestionable that access to police records is integral to the identification and correction of miscarriages of justice, the final outcome of this matter will revolve around the manner in which the SCC characterizes the Charter issue at stake. Until that time we will have to debate amongst ourselves whether proposed or potential expression is tantamount to expression itself.

Ministry of Public Safety and Security (Formerly Solicitor General), et al. v. Criminal Lawyers’ Association is scheduled to be heard on December 11, 2008.