Section 2(b) of the Charter does not Guarantee Access to all Government Information

The SCC is in the midst of developing a pattern of conservative decisions on s. 2(b) of the Canadian Charter of Rights and Freedoms. In its last decision on s. 2(b), the SCC held that mandatory publication bans in the Criminal Code that interfered with the “open court principle” were constitutional. The open court principle is the idea that court practices and proceedings should be open to public scrutiny in order to facilitate transparency and accountability. The SCC’s most recent decision, Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, is another blow, albeit indirect, to the open court principle. The SCC held that under the circumstances, s. 2(b) of the Charter did not protect access to government information. The collateral damage resulting from this decision will likely include restraints on various civil society actors’ exercise of the right to freedom of expression, including the media and academic community.

Undisclosed Report on Investigation into Police Misconduct Provokes Charter Challenge

Since my colleague Jakki Warkentin discussed the particulars of this case in-depth, I will be brief in my summary of the facts. This Charter challenge was initiated by the Criminal Lawyers’ Association (CLA) because of the Minister of Public Safety and Security’s refusal to disclose the Ontario Provincial Police’s (OPP) report on its investigation into alleged police misconduct in the Domenic Racco murder. Even though the trial judge specifically ordered a stay in the murder case because of police misconduct, a related OPP investigation yielded no such finding. Since the police provided no explanation for its conclusion, the CLA made a request for the report to be disclosed pursuant to s. 10 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3, (“the Act”).

Section 10(1) of the Act provides a general right to information, except where the information falls within one of the specified exemptions. Section 23 states that select exemptions will not apply “where a compelling public interest in the disclosure of the record clearly overweighs the purpose of the exemption”. The two exemptions that are relevant to this decision pertain to solicitor-client privilege (s. 14) and law enforcement records that may interfere with an investigation, informants, and other enforcement matters (s. 19). The CLA challenged the constitutionality of s. 23 on the basis that its selective exclusion of the exemptions on solicitor-client privilege and law enforcement records disclosures violates s. 2(b) of the Charter.

After the Minister refused to disclose the report, the CLA unsuccessfully appealed to the Assistant Information and Privacy Commissioner. The Assistant Commissioner found that ss. 14 and 19 were not included in s. 23 as exemptions that could be overridden by the public interest. He also determined that the omission of these two provisions from the override did not violate the CLA’s freedom of expression. While the Divisional Court upheld the Assistant Commissioner’s decision, the Ontario Court of Appeal did not.

Tailoring the Irwin Toy Test to Government Information

At the SCC, the CLA argued that the selective exclusion of ss. 14 and 19 from the public interest override denied it access to the OPP’s report. It argued that if these exemptions were included in the public interest override, then they would have been overridden because the need for public scrutiny of the report would have outweighed the purposes of protecting privilege and law enforcement functions.

Writing for a unanimous seven-judge panel, McLachlin C.J. and Abella J., rejected the CLA’s position because including ss. 14 and 19 in the public interest override would have no real effect on the status quo. Both provisions expressly vest government authorities with the discretion to determine whether to disclose information. In exercising that discretion, factors such as the public interest, would be considered. Simply put, the same consideration for the public interest in s. 23 is already incorporated in ss. 14 and 19.

In order to determine whether the inclusion of ss. 14 and 19 in the public interest override were constitutionally required, the SCC applied the three part Irwin Toy test to determine whether access to government information is protected by s. 2(b) of the Charter. A prima facie case for the production of government documents will exist where the claimant shows that denying access to the government information would preclude meaningful commentary. The prima facie case can be rebutted by certain factors, such as solicitor-client privilege and interference with the functioning of government.

Under the first part of the Irwin Toy test, the SCC determined that access to the OPP report did not have expressive content that brings it within the scope of 2(b). Since the trial judge’s reasons for ordering a stay in the murder case disclosed the alleged police misconduct, there was already information in the public domain that could facilitate meaningful public discussion of the investigation of the murder case. Since the CLA did not satisfy the first part of the test, the SCC did not discuss the other two parts of the Irwin Toy test.

Although the CLA was unable to demonstrate that access to government information is protected by the scope of s. 2b of the Charter, the SCC did not foreclose the possibility of finding so. It held that “the scope of s. 2(b) protection includes a right to access to documents only where the access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints.” Since the alleged police misconduct was already disclosed by the trial judge, there was information in the public domain that could facilitate meaningful discussion.

The Open Court Principle and Civil Society

The SCC’s decision in this case demonstrates its current fixation on conservatively developing s. 2(b) of the Charter. As mentioned above, this case is the second of two recent SCC decisions that undermine the open court principle. In the decision, the SCC paid homage to the principle with its reaffirmation that it is “‘inextricably tied to the rights guaranteed by s. 2(b)’ because it ‘permits the public to discuss and put forward options and criticisms of court practices and proceedings’”. It clawed back from this affirmation by analogizing the facts at hand to incongruous exceptions to the principle. For example, the SCC reasoned that in the same way that the principle could not be invoked to impede the functioning of judges by requiring that all memos and notes leading to a judicial decision be disclosed, certain types of government documents that affect the functioning of government should not be disclosed. While those limits on the principle are reasonable, it remains to be seen how those limits are applicable to the facts at hand. It is hard to see how a report on an investigation of police misconduct would impede ministerial decision-making or other high level government functions.

Even though it is not the SCC’s job to radically depart from legal precedent in order to hold public agencies accountable, one cannot help but scrutinize its decision. On the one hand, the decision was reasonable given the fact that the trial judge had disclosed the police misconduct. At the same time, the issue arises whether the trial judge’s decision disclosed sufficient information on the actual internal investigation that occurred subsequent to the judicial decision. One can assume that the 318 page report had more detail than the judicial decision, and may have brought to light new information to be digested by the public.

The most worrisome aspect of the decision is the minimization of the open court principle to the detriment of civil society. Civil society groups such as the media and academic community rely on access to information rights in order to provide commentary for public consumption. If a mere police investigation report can be analogized to high level government matters that should be protected by exemptions to disclosure, then there is latitude for other government agencies to shield their reports in a similar matter.

Recent SCC decisions on s. 2(b) have already circumscribed the ability of civil society to engage in arguably reasonable exercises of free speech. In National Post, the SCC held  that it is in the public interest that confidential sources potentially associated with a crime may be revealed in order to facilitate law enforcement’s investigation into the crime. The SCC followed up that decision with Toronto Star Newspapers, where the SCC upheld the constitutionality of mandatory publication bans that are issued automatically upon an application by a defendant, despite there being feasible alternatives that would impair the freedom of expression less. This pattern of conservative decisions on s. 2(b) impinges on the crucial role that civil society plays as a check on government. Civil society cannot fulfill that prerequisite to democracy and government accountability if it is denied the means to do so.