Case Summary and Outcome

The Supreme Court of Canada found that Section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), which articulates the right to freedom of expression, includes the right of individuals and organizations to request access to government documents. The Court further found that a minister may withhold information if such action is “reasonable” and in accordance with the public interest. Finally, the Court found that disclosure exemptions relating to law enforcement and attorney-client privilege do not violate freedom of expression under the Charter.

Facts

This action was brought by the Criminal Lawyers’ Association (CLA)–a group representing Ontario’s criminal defenders. The CLA sought to compel the Ontarian Provincial Police (OPP) to disclose documents related to the conduct of regional police and prosecutors during the buildup to the conviction of two individuals for a 1991 murder.

The overseeing minister refused to disclose the information CLA requested, citing Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA). The minister relied on FIPPA Sections 14 and 19 in arguing that the OPP was exempt from FIPPA’s disclosure requirements because disclosure would compromise the investigative activities of law enforcement, and because the documents requested were protected by attorney-client privilege.

The CLA then challenged the constitutionality of the FIPPA, claiming that it violated freedom of expression as enshrined in Section 2(b) of the Charter.

Decision Overview

The Supreme Court of Canada found that the FIPPA was consistent with the Charter and was, therefore, constitutional. The Court reasoned that, although the right to freedom of expression enshrined in Section 2(b) of the Charter protects the right to request access to government documents, the right to request documents does not create a positive right to access documents, and the FIPPA’s provisions adequately protect the public’s right to access government documents.

The FIPPA allows the government to ignore requests for disclosure of documents when the documents requested would tamper with the legitimate investigative activities of law enforcement or when the documents requested are protected by attorney-client privilege. However, the FIPPA also contains a provision that allows these exemptions to be overridden in cases of compelling public interest (Section 23). In this case, the Court found that freedom of expression requires disclosure of documents only when those documents are required to allow for meaningful debate on matters of public interest. Because adequate information on the issue was already available to the public, the Court found that the right to freedom of expression was not engaged here.

The Court further found that the minister had a discretional right to withhold information exempted under the FIPPA in Sections 14 and 19, but stipulated that the minister’s use of discretion must be “reasonable” and in accordance with public interest. Using this standard, the Court upheld the minister’s invocation of attorney-client privilege, noting that because the privilege is near absolute, the minister’s discretion was reasonable. However, the minister gave no reason for his failure to disclose some of the non-privileged documents, and accordingly, the Court remanded the lower court’s decision to be reconsidered in light of whether the minister’s non-disclosure had met this standard.