Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2010 SCC 23 (17 June 2010)
The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in government hands. Access to documents is a derivative right of the freedom, where the denial of that access would preclude meaningful public discussion on matters of public interest. Access may validly be denied on the basis of countervailing considerations. In this case, those considerations were client-solicitor and law enforcement privilege.
Two men, Graham Court and Peter Monaghan (the accused), were convicted of murder. New trials were ordered for the accused on the basis of fresh evidence, the loss of which had not been disclosed by the police to the defence until two and a half years after the trial, and inadequate jury instructions.
During the re-trial, the accused applied for a stay of proceedings on the grounds of a breach of their Charter rights. The trial judge (Glithero J) found 'many instances of abusive conduct by state officials' and granted a stay.
The Ontario Provincial Police (OPP) then investigated the conduct of the police involved and exonerated them of any misdoing. The OPP offered no explanation for its conclusions. The Criminal Lawyers' Association, sought the disclosure of documents relating to the investigation under Ontario's Freedom of Information and Protection of Privacy Act 1990. The documents at the heart of the matter were an OPP report detailing the results of the investigation, and two pieces of correspondence containing legal advice on the OPP investigation and report.
The FOI Act provides that the relevant Minister may, by exercise of discretion, exempt certain categories of documents from disclosure, including:
- law enforcement records (s 14); and
- client-solicitor privilege (s 19).
Section 23 of the FOI Act provides that certain exemptions would not apply where a 'compelling public interest' in disclosure clearly outweighed the purpose of the exemption (the ‘public interest override’). The public interest override does not, however, apply to ss 14 and 19.
The Minister refused to disclose the report or the legal advice on the basis of the exemptions, but gave no reasons for that decision. The Association appealed the Minister's decision to the Assistant Information and Privacy Commissioner, who upheld the Minister's decision. The Commissioner found that, while the public interest clearly outweighed the purpose of the exemption in this case, the public interest override did not apply to the ss 14 and 19 exemptions. The Commissioner further found that the omission of ss 14 and 19 from s 23 did not constitute a breach of the freedom of expression under s 2(b) of the Charter. A single judge of the Ontario Divisional Court upheld the Commissioner's decision. However, the Ontario Court of Appeal by majority allowed the Association's appeal holding that the exclusion of ss 14 and 19 from the public interest override violated s 2(b) of the Charter.
The Minister appealed to the Supreme Court of Canada.
The Supreme Court unanimously allowed the appeal, holding that:
S 2(b) does not guarantee access to all documents in government hands. Section 2(b) guarantees freedom of expression, not access to information. Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government.
The Supreme Court considered the relevant question to be to determined was how far s 2(b) protection extended. In answering that question, the Supreme Court held that the best approach involved addressing the three inquiries in Irwin Toy Ltd v Quebec (Attorney General)  1 SCR 927:
1. Does the activity in question have expressive content and therefore attract the freedom in s 2(b)?
The Supreme Court held that, to satisfy this requirement, it must be established that 'access is necessary to permit meaningful debate and discussion on a matter of public interest'. In this case, that requirement was not met, as the record supporting the misconduct of state officials was already in the public domain.
2. Is there something in the method or location of that expression that would remove that protection?
In relation to this question the Supreme Court observed that the Association would need to demonstrate that access to the ss 14 and 19 documents, obtained through the public interest override, would not 'impinge on privileges or impair the proper functioning of relevant government institutions'.
Again, the Association failed to meet this test. Sections 14 and 19 were 'intended to protect documents from disclosure on these very grounds'.
3. If the activity remains protected, does the state action infringe that protection?
In view of its conclusions with respect to the first two questions, the Supreme Court found it unnecessary to answer this question. In any event, Supreme Court found that the absence of the public interest override with respect to ss 14 and 19 did not significantly impair the Association's access to documents. The Minister exercises a discretion in considering whether the ss 14 and 19 exemptions apply. In exercising that discretion, the Minister is required to have regard to the public interest in disclosure. The public interest override, the Supreme Court held, would add little to the consideration of the public interest in disclosure already mandated by the FOI Act.
The Supreme Court did decide to remit the s 14 claim back to the Commissioner. The Supreme Court noted that, in exercising the discretion under ss 14 and 19, the Minister was required to consider individual parts of the record and to disclose as much of the information as was possible when an exemption was claimed.
In reviewing the Minister's decision, the Commissioner was required to consider whether the exemption was properly claimed and, if it was, whether the Minister had properly exercised the Minister's discretion. In this case the Commissioner had not considered the exercise of the Minister's discretion, and should reconsider the s 14 exemption claim. The Supreme Court held:
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 s 19 exemption claim was not ordered to be reconsidered. The categorical nature of solicitor-client privilege meant, the Supreme Court concluded, that it was 'difficult to see how these records could have been disclosed'.
Relevance to the Victorian Charter
Section 15 of the Victorian Charter protects the right to freedom of expression. This freedom expressly includes the freedom to seek, receive and impart information in writing. In contrast to the decision of the Canadian Supreme Court, in Victoria, this right has been held to ‘incorporate a positive right to obtain access to government-held documents’ (see XYZ v Victoria Police  VCAT 255 (16 March 2010)).
The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc23/2010scc23.html.
Tim Goodwin is a lawyer with Allens Arthur Robinson