JURIST - Paper Chase: Canada Supreme Court finds limited right to government information

[JURIST] The Supreme Court of Canada [official website; JURIST news archive] on Thursday ruled [judgment text] 7-0 that Canadians have a limited right to government information if the information is necessary to the effective exercise of the freedom of expression and is not privileged. The court held that under § 2(b) of the Charter of Rights and Freedoms [text] guaranteeing freedom of expression a claimant must show that denial of access to withheld information "effectively precludes meaningful public discussion on matters of public interest." In establishing this, a claimant creates a prima facie case for production of the information that may be refuted through an assertion of a privilege which would place it outside of the scope of § 2(b). Additionally, information may be withheld from release if its release would interfere with the functions of government. In finding so, the court upheld Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) [text] as constitutional, which provided for the release of documents when in the public interest unless they are the product of law enforcement investigation or subject to solicitor-client privilege. In applying this standard to the case before it, the court denied the request for documents by the Criminal Lawyers' Association (CLA) [advocacy website] reporting the findings of an inquiry into police misconduct committed during the investigation the 1983 murder of Domenic Racco. The court held that the documents sought by the CLA did not meet the criteria. The court remitted the question of whether applying the law enforcement privilege was appropriate to the Assistant Information and Privacy Commissioner, who first reviewed the decision to withhold the report.

The case, Ontario (Public Safety and Security) v. Criminal Lawyers' Association [case information], came to the court on appeal from the Court of Appeals for Ontario [official website], which had found FIPPA to be unconstitutional. The case arises out of the prosecution of two men for the 1983 murder. A retrial was ordered by the Court of Appeals in 1995, the proceedings for which were stayed in 1997 due to what the court described as the deliberate non-disclosure of pertinent information and the negligent breach of duty by government officials during trial. This led to the investigation of the local police by provincial authorities, and the report of the findings which the CLA was attempting to gain access to. The CLA was also attempting to gain access to a 1998 memorandum and letter containing legal advice to local authorities regarding the report. The Supreme Court heard arguments in the case in October 2008 after granting leave to appeal from the Ontario court in 2007.