Today’s CLA Judgement Big, but Just How Big to Be Determined

This is an early take on today’s Supreme Court of Canada decision in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association.

The Court unanimously held that the Ontario Freedom of Information and Protection of Privacy Act does not violate section 2(b) of the Charter for its failure to offer a “public interest override” of the law enforcement and solicitor-client privilege exemptions to the public right of access to government information. This is the narrowest finding in a judgement that could give the public a new means of accessing government information.

FIPPA gives the public a presumptive right of access to most information in an Ontario government institution’s custody or control. This right is then subject to three mandatory exemptions and 12 discretionary exemptions. Seven of the exemptions are then subject to an override that applies if “a compelling public interest in the disclosure of the [requested] record clearly outweighs the purpose of the exemption.” The override does not apply to the law enforcement and solicitor-client privilege exemptions. The CLA claimed this limit was an unjustifiable breach of section 2(b) and succeeded at the Ontario Court of Appeal based on a majority judgement written by Laforme J.A.

Without addressing Laforme J.A.’s reasoning at all, the Supreme Court of Canada allowed the Ontario government’s appeal. McLachlin C.J.C. and Abella J. wrote for the Court. I’ll highlight four findings of significance below, from narrowly significant to broadly significant.

The Court’s narrowest finding was that the provision of a limited override in FIPPA is constitutional. It stressed that both the law enforcement and solicitor-client privilege exemptions are based on recognized public interests and, furthermore, that institutions must consider the public interest in favour of disclosure in applying their discretion. This structure-based balancing precluded finding a section 2(b) violation, according to the Court, because an additional override based on a consideration of the public interest would “add little” to meaningful public discussion.

The Court’s message about the proper exercise of discretion is the second finding of significance. The Court made very clear that an institution must consider the public interest favouring disclosure in making an access decision. With reference to FIPPA’s discretionary law enforcement exemption, it said:

…a proper interpretation of s. 14(1) requires that the head consider whether a compelling public interest in disclosure outweighs the purpose of the exemption, to prevent interference with law enforcement. If the head, acting judicially, were to find that such an interest exists the head would exercise the discretion conferred by the word “may” and order disclosure of the document.

That the Court seemingly limited this finding to the law enforcement exemption is the third finding of significance. The law enforcement and solicitor-client privilege exemptions are both discretionary, both requiring a consideration of all relevant factors, including the public interest favouring disclosure. Yet at the same time the Court stressed the proper application of discretion in applying the law enforcement exemption, it suggested solicitor-client privilege will always prevail over the public interest in disclosure. In deciding not to send the matter back to the Information and Privacy Commissioner/Ontario to assess whether the government had properly exercised its discretion in claiming solicitor-client privilege, the Court stated:

We view the records falling under the s. 19 solicitor-client exemption differently [from those subject to a s. 14 law enforcement claim]. Under the established rules on solicitor-client privilege, and based on the facts and interests at stake before us, it is difficult to see how these records could have been disclosed.

Though this privilege finding seems to blur the substantive (privilege) with the procedural (discretion), this is yet another indication of the strength of the Court’s commitment to maintaining a strong solicitor-client privilege doctrine. There is no question that, once established, solicitor-client privilege is absolute.

This leaves the Court’s broadest finding – its finding that section 2(b) supports a right of access to government information. According to the Court this right derives from the section 2(b) right to expression and is akin to the long-recognized right to open courts. It is also, however, limited – not necessarily any greater than the right of access granted under FIPPA and other access statutes and with an onus squarely on the individual seeking access. The Court said:

In sum, there is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded…

If this necessity is established, a prima facie case for production is made out. However, the claimant must go on to show that the protection is not removed by countervailing considerations inconsistent with production.

The Court’s reasoning on this right to government information and its assessment of the FIPPA regime are intermixed in a manner that makes it difficult to understand the true significance of today’s judgement. The Court, however, clearly assessed FIPPA against a stated Charter right. It also seemed to assess the CLA access request independently from the confines of FIPPA, as if the CLA had applied directly to a Court.

The Globe reports that despite losing the appeal the respondents are claiming success on a point of principle. Rightly so. If the Court did not create a significant and “freestanding” new tool for seeking access to government information today, at the very least it recognized a right that could be used to shape existing statutory access regimes.

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