Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

The Information Commissioner provides his views to the Supreme Court of Canada on a matter of constitutional importance.

Ottawa, October 6, 2008 – TheInformation Commissioner of Canada, Robert Marleau, filed his memorandum of arguments to the Supreme Court of Canada in a case dealing with freedom of expression under the Canadian Charter of Rights and Freedoms, the public interest in disclosure and the Ontario government refusal to disclose records requested under access to information legislation.

The case involves the Ontario Ministry of Public Safety and Security, the Attorney General of Ontario and the Criminal Lawyers’ Association (CLA). The Ministry takes the position that the Ontario Court of Appeal was wrong in concluding that part of the Ontario Freedom of Information and Protection of Privacy Act (Ontario Act) infringes on freedom of expression. On the other hand, the CLAasserts that the Court of Appeal was correct in deciding that the Ontario Act has laid down a rule of secrecy that unjustifiably infringes on its guaranteed freedom of expression.

The Information Commissioner stated that: "This case raises issues that I deem crucial to the proper functioning of this quasi-constitutional access to information scheme because the Supreme Court will be called upon to examine the interplay between constitutional values provided by the Charter of Rights and Freedoms and the statutory right of access to information".

The decision to be made by the Supreme Court of Canada will have an impact on the importance to be given to the public interest as a factor to be taken into consideration in each case when records are requested under an Access to Information legislation and where a government authority is clearly provided with a discretionary power to exempt from disclosure some information based on a statutory exemption.

The Information Commissioner will argue that in the present case, the Ministry’s exercise of discretion has not been scrutinized at any stage. The Information Commissioner submits that the Ministry was required to, but failed to consider, relevant factors including the public interest in disclosure.

The Information Commissioner will suggest that it is appropriate to remit the matter to the Ministry, for the discretion to be exercised once again taking into consideration the following factors:

  • The principle that government information should be available to the public;
  • Charter values, particularly those embodied in freedom of expression;
  • The underlying constitutional principle of democracy;
  • The public interest in disclosure of the requested record;
  • The purpose of the exemption and the extent to which a decision to apply the exemption to refuse disclosure of the record would meet that purpose.

In the Information Commissioner’s view, recognizing the public interest in the disclosure of government held information is necessary to achieve a culture of openness and transparency in government to the benefit of all Canadians.

Case Outline: Background Information

On July 31, 2008, the Information Commissioner of Canada was granted leave to intervene in a case before the Supreme Court of Canada involving the constitutionality of a section of Ontario's freedom of information legislation (Ministry of Public Safety and Security et al. v. Criminal Lawyers' Association, S-32172).

In a criminal trial for a 1983 murder, an Ontario court stayed the proceedings against two accused on Charter grounds, finding that the rights of the accused had been violated as a result of "abusive conduct by state officials" involving deliberate non-recording of evidence and non-disclosure of information.

Following this decision, the Ontario Provincial Police (OPP) was asked to investigate the conduct of the police force involved and the prosecution. It reported that there was no evidence of attempts to obstruct justice but it did not release its report.

The Criminal Lawyers' Association submitted a request under Ontario's freedom of information legislation to the Ministry of Public Safety and Security seeking records concerning the OPP investigation.

The Ministry refused to disclose documents, including the police report, on the basis of three exemptions under the Act.

The issue in the case is whether the public interest override (section 23), which applies only to some exemptions, complies with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms.

Two judges of the Ontario Court of Appeal found that "s. 23 of the Act infringes s. 2(b) of the Charter by failing to extend the public interest override to the law enforcement and solicitor-client privilege exemptions ... and that this infringement cannot be justified under s. 1 of the Charter." A third judge dissented, finding no Charter violation. The Ministry was granted leave to appeal the decision to the Supreme Court of Canada.

  1. On September 25, 2008, the Information Commissioner filed his Memorandum of fact and law.
  2. The Information Commissioner takes the position that it is not necessary to respond to the stated constitutional questions in this case. On a proper construction of the statutory regime, and a full consideration of the relevant s. 2(b) interests, the constitutional questions simply do not arise.
  3. The exemptions at issue are discretionary, and the exercise of this statutory power is subject to the well-established rule [Roncarelli v. Duplessis, [1959] S.C.R. 121] that official actions must flow from statutory authority clearly granted and properly exercised.
  4. In the case at bar, the Ministry’s exercise of discretion has not been scrutinized at any stage and the Information Commissioner submits that the Ministry was required to but failed to consider relevant factors including the public interest in disclosure. In the circumstances, it is appropriate to remit the matter to the Ministry, for the discretion to be exercised anew taking into consideration the following factors:
    1. The principle that government information should be available to the public;
    2. Charter values, particularly those embodied in freedom of expression;
    3. The underlying constitutional principle of democracy;
    4. The public interest in disclosure of the requested record;
    5. The purpose of the exemption and the extent to which a decision to apply the exemption to refuse disclosure of the record would meet that purpose.
  5. The Information Commissioner makes specific legal submissions on the following three points:
    1. The act of gathering information from a public institution in the circumstances of this case constitutes protected expressive activity under s. 2(b) of the Charter;
    2. When a request engages s. 2(b) rights, in exercising the discretion conferred by the Freedom of Information and Protection of Privacy Act, the Ministry must ensure that any infringement of s. 2(b) occasioned by the application of a discretionary exemption conforms to the Dagenais/Mentuck test;
    3. Alternatively, Charter values, the purposes of the legislation and the public interest in disclosure are relevant factors that must be considered by the Minister in a reasonable manner in exercising the discretion conferred by the Freedom of Information and Protection of Privacy Act.