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Ontario (Public Safety and Security) v. Criminal Lawyers’ Association

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    June 17, 2010
  • Outcome
    Remanded for Decision in Accordance with Ruling, Law or Action Upheld
  • Case Number
    [2010] 1 S.C.R. 815
  • Region & Country
    Canada, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Access to Public Information

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Case Analysis

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.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Supreme Court of Canada made clear that freedom of expression, as enshrined in the Canadian Charter of Rights and Freedoms, does not include a positive right to access to government information:  it only creates a right to request information. This might be read to contract the freedom. However, the Court also expanded access to information by setting out a new requirement that a government minister’s refusal to disclose information under the constitutional provisions of a given act must be “reasonable and in accordance with the public interest.”[1]

[1] Cases: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, Right2Info, available at http://www.right2info.org/cases/r2i-ontario-public-safety-and-security-v.-criminal-lawyers-association (accessed June 21, 2015).

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Can., Charter of Rights and Freedoms, sec. 2
  • Can., Ont. Freedom of Information and Privacy Act sec. 14
  • Can., Ont. Freedom of Information and Privacy Act sec. 19
  • Can., Ont. Freedom of Information and Privacy Act sec. 23
  • Can., Evidence Act of 1985
  • Can., Dunmore v. Ontario (Attorney General), 2001 SCC 94
  • Can., Baier v. Alberta, 2007 SCC 31
  • Can., Attorney General v. Fineberg (1994), 19 O.R. (3d) 197
  • Can., Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877
  • Can., Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
  • Can., Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480
  • Can., R. v. Basi, 2009 SCC 52
  • Can., R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763
  • Can., R. v. Campbell, [1999] 1 S.C.R. 565
  • Can., R. v. Power, [1994] 1 S.C.R. 601
  • Can., R. v. Regan, 2002 SCC 12
  • Can., Krieger v. Law Society of Alberta, 2002 SCC 65
  • Can., R. v. Beaudry, 2007 SCC 5
  • Can., Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
  • Can., Solosky v. The Queen, [1980] 1 S.C.R. 821
  • Can., R. v. McClure, 2001 SCC 14
  • Can., Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860
  • Can., Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61
  • Can., Maranda v. Richer, 2003 SCC 67
  • Can., Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31
  • Can., Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31
  • Can., Blank v. Canada (Minister of Justice), 2006 SCC 39
  • Can., Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44
  • Can., Smith v. Jones, [1999] 1 S.C.R. 455
  • Can., R. v. Brown, 2002 SCC 32
  • Can., Ontario (Minister of Finance) v. Higgins (1999), 118 O.A.C. 108, leave to appeal refused, [2000] 1 S.C.R. xvi
  • Can., Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395
  • Can., Ontario (Attorney General) v. Ontario (Freedom of Information and Protection of Privacy Act Adjudicator) (2002), 22 C.P.R. (4th) 447

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Canada is a common law country. In considering whether a government minister’s decision to withhold requested information from the public is lawful, Canada’s lower courts will be bound to follow the standards set out by the Supreme Court in this case.

The decision was cited in:

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