The Criminal Lawyer’s Association (CLA), a group representing Ontarian criminal defenders, sought the records of a 1998 investigation by the Ontarian Provincial Police (OPP) into the conduct of regional police and prosecution in the context of the conviction of two individuals for murder in 1991 (paras. 8, 12). The relevant minister refused to disclose the records, relying on Ontario Freedom of Information and Protection of Privacy Act’s (FIPPA) Section 14 (law enforcement) and Section 19 (solicitor-client privilege) exemptions from disclosure (para. 13). These exemptions allow for non-disclosure when law enforcement and other investigative activities are compromised, or when information is subject to client-attorney privilege.
The Court determined that FIPPA was constitutional under the Canadian Charter of Rights and Freedoms (Charter). It first found that freedom of expression under section 2(b) of the Charter includes the right to request access to government documents and recognized a limited constitutional right to have access to government-held documents (para. 37).
FIPPA Section 23 allows for exemptions from disclosure to be overridden in cases of a compelling public interest. However, this does not apply to either Section 14 or 19 (para. 24). The Court found that this was constitutional, since the omission of Sections 14 and 19 from the Section 23 override did not engage the right to freedom of expression under Section 2(b) of the Charter. The right to freedom of expression is only engaged in cases where access to the documents is required to allow for meaningful debate and discussions on matters of public interest (para. 58). As much of the information in this case was in the public domain, Section 2(b) was not engaged, and even if it were, the Court held that the right would not be infringed (paras. 59-61).
However, as part of this finding, the Court interpreted the minister’s discretional right to withhold information enshrined in Sections 14 and 19 of FIPPA as requiring that the exercise of discretion was reasonable and in accordance with the public interest (paras. 50-52).
The Court found that the solicitor-client privilege is generally close to absolute and that it therefore was almost certainly exercised reasonably here (para. 75). However, as the minister gave no reasons for his decision and failed to disclose even some of the documents requested, the claim under Section 14 was remanded to the Commissioner to be reconsidered in light of the restrictions placed upon the minister’s discretion (para. 74).
Judgment of the Court.