Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), (2010) 402 N.R. 350 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 17, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 402 N.R. 350 (SCC);2010 SCC 23;319 DLR (4th) 385;EYB 2010-175469;JE 2010-1089;212 CRR (2d) 300;262 OAC 258;[2010] EXP 1990;[2010] 1 SCR 815;84 CPR (4th) 81;[2010] SCJ No 23 (QL);1 Admin LR (5th) 235;76 CR (6th) 283;402 NR 350

Criminal Lawyers' Assn. v. Ont. (2010), 402 N.R. 350 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. JN.039

Ministry of Public Safety and Security (Formerly Solicitor General) and Attorney General of Ontario (appellants) v. Criminal Lawyers' Association (respondent) and Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Newfoundland and Labrador, Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario, Canadian Bar Association, Information Commissioner of Canada, Federation of Law Societies of Canada, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association, Canadian Association of Journalists and British Columbia Civil Liberties Association (intervenors)

(32172; 2010 SCC 23; 2010 CSC 23)

Indexed As: Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ.

June 17, 2010.

Summary:

In a 1997 judgment staying murder charges against two accused, the trial judge severely criticized Crown counsel and police for deliberate abusive conduct in nondisclosure of information, editing information and negligently breaching the duty to maintain original evidence. The Ontario Provincial Police (OPP) were asked to investigate the conduct of the Crown and police. Nine months later, the OPP released a "terse press release" simply stating, without reasons, that there was no evidence of attempts to obstruct justice. The Criminal Lawyers' Association (CLA) applied under the Freedom of Information and Protection of Privacy Act for access to the information resulting from the OPP investigation (two documents containing legal advice and the 318 page investigation report). The Assistant Commissioner refused to order disclosure on the grounds that the information was exempt under s. 14 (law enforcement records) and s. 19 (solicitor-client privilege). The s. 14 and s. 19 exemptions were discretionary, not mandatory, and were not subject to the public interest override in s. 23. The CLA's claim that the failure to make ss. 14 and 19 exemptions subject to a s. 23 review violated s. 2(b) of the Charter (freedom of expression) was also rejected. The CLA applied for judicial review.

The Ontario Divisional Court, in a judgment reported (2004), 184 O.A.C. 223, dismissed the application. Neither freedom of expression, the "open courts" principle, nor the unwritten principle of democracy, extended to impose a positive obligation on government to make law enforcement and confidential information available to the public to facilitate the public's ability to comment more fully, subject to public interest balancing on a case-by-case basis. Alternatively, if s. 2(b) were violated, the failure to make ss. 14 and 19 subject to s. 23 public interest override would be a reasonable limit prescribed by law under s. 1 of the Charter. The CLA appealed.

The Ontario Court of Appeal, Juriansz, J.A., dissenting, in a judgment reported (2007), 224 O.A.C. 236, allowed the appeal and quashed the Assistant Commissioner's decision. Section 23 infringed the s. 2(b) Charter right to freedom of expression by failing to extend the public interest review to the law enforcement and solicitor-client privilege exemptions. The infringement was not a reasonable limit prescribed by law under s. 1. The appropriate remedy was "reading in", making ss. 14 and 19 subject to s. 23. The Minister appealed.

The Supreme Court of Canada allowed the appeal. The exclusion of ss. 14 and 19 from a public interest review under s. 23 did not violate freedom of expression under s. 2(b) of the Charter. However, where the Assistant Commissioner had not fully considered the scope of his discretion under s. 14, the court remitted the matter for reconsideration to determine whether all or part of the report should be disclosed.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See second Civil Rights - Topic 1858 ].

Civil Rights - Topic 1858

Freedom of speech or expression - Limitations on - Freedom of access to information - The Ontario Provincial Police (OPP) investigated prosecutorial and police abusive conduct alleged by a trial judge in granting a stay of proceedings in a murder trial - The OPP released a "terse press release" simply stating, without reasons, that there was no evidence of attempts to obstruct justice - The Criminal Lawyers' Association's (CLA) application under the Freedom of Information and Protection of Privacy Act for access to information from the OPP investigation was refused on the grounds that the information was exempt under s. 14 (law enforcement records) and s. 19 (solicitor-client privilege) - Section 23 (public interest override), which permitted disclosure where there was a compelling public interest in disclosure, did not apply to ss. 14 and 19 - The CLA submitted that s. 2(b) of the Charter (freedom of expression) imposed a positive obligation on government to make law enforcement and confidential information available to the public to facilitate the public's ability to comment more fully, subject to public interest balancing on a case-by-case basis - The CLA submitted that s. 23 was underinclusive - The Ontario Court of Appeal held that s. 23 infringed freedom of expression - The Supreme Court of Canada disagreed - The failure to extend the s. 23 public interest override to documents for which law enforcement or solicitor-client privilege are claimed did not violate s. 2(b) - The court stated that "s. 2(b) does not guarantee access to all documents in government hands. Section 2(b) guarantees freedom of expression, not access to information. Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government. ... the scope of the s. 2(b) protection includes a right to access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints. ... s. 2(b) is not engaged." - Since ss. 14 and 19 already provide adequate consideration of the public interest, s. 23 added little to the determination of whether to disclose the information - Further, "given the near-absolute nature of solicitor-client privilege, it is difficult to see how the s. 23 public interest override could ever operate to require disclosure of a protected document. ... Sections 14 and 19 already incorporate, by necessity, the public interest to the extent it may be applicable" - See paragraphs 30 to 61.

Civil Rights - Topic 1858

Freedom of speech or expression - Limitations on - Freedom of access to information - The Supreme Court of Canada stated that "the scope of the s. 2(b) protection includes a right of access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints." - Whether s. 2(b) was engaged depended on the three inquiries set out in Irwin Toy (SCC), namely: "(1) Does the activity in question have expressive content, thereby bringing it within the reach of s. 2(b)?; (2) Is there something in the method or location of that expression that would remove that protection?; (3) If the activity is protected, does the state action infringe that protection, either in purpose or effect? These steps were developed in Montreal (City) (at para. 56) in the context of expressive activities, but the principles animating them equally apply to determining whether s. 2(b) requires the production of government documents." - See paragraphs 31 to 32.

Crown - Topic 7175

Examination of public documents - Freedom of information - Legislation - Disclosure in public interest - [See first Civil Rights - Topic 1858 ].

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client privilege - [See first Civil Rights - Topic 1858] .

Crown - Topic 7209.1

Examination of public documents - Freedom of information - Bars - Information obtained in lawful investigations (incl. crimes and national security) - [See first Civil Rights - Topic 1858 and second Crown - Topic 7402 ].

Crown - Topic 7215

Examination of public documents - Freedom of information - Bars - Disclosure where public interest outweighs risk of harm - [See first Civil Rights - Topic 1858 ].

Crown - Topic 7402

Examination of public documents - Freedom of information - Disclosure - Particular documents - Investigatory reports - [See first Civil Rights - Topic 1858 ].

Crown - Topic 7402

Examination of public documents - Freedom of information - Disclosure - Particular documents - Investigatory reports - The Ontario Provincial Police (OPP) investigated prosecutorial and police abusive conduct alleged by a trial judge in granting a stay of proceedings in a murder trial - The OPP released a "terse press release" simply stating, without reasons, that there was no evidence of attempts to obstruct justice - The Criminal Lawyers' Association's (CLA) application under the Freedom of Information and Protection of Privacy Act for access to information from the OPP investigation was refused on the grounds that the information was exempt under s. 14 (law enforcement records) and s. 19 (solicitor-client privilege) - Section 23 (public interest override), which permitted disclosure where there was a compelling public interest in disclosure, did not apply to ss. 14 and 19 - The CLA was unsuccessful in challenging the constitutionality of s. 23 as violating freedom of expression (Charter, s. 2(b)) because of its underinclusiveness - However, where the Assistant Commissioner had not fully considered the scope of his discretion under s. 14, the Supreme Court of Canada remitted the matter for reconsideration to determine whether all or part of the report should be disclosed - The Assistant Commissioner had a duty to determine whether the exemption was properly claimed and whether the exercise of discretion by the government "head" was reasonable - The court stated that "the absence of reasons [by the 'head'] and the failure of the Minister to order disclosure of any part of the voluminous documents sought at the very least raise concerns that should have been investigated by the Commissioner." - See paragraphs 63 to 75.

Cases Noticed:

R. v. Court (G.R.) and Monaghan (P.D.) (1995), 81 O.A.C. 111; 23 O.R.(3d) 321 (C.A.), refd to. [para. 9].

R. v. Court (G.P.) and Monaghan (P.D.) (1997), 36 O.R.(3d) 263 (Gen. Div.), refd to. [para. 10].

Ontario (Minister of Finance) v. Higgins et al. (1997), 107 O.A.C. 341; 5 Admin. L.R.(3d) 175 (Div. Ct.), revd. (1999), 118 O.A.C. 108; 13 Admin. L.R.(3d) 1 (C.A.), leave to appeal refused [2000] 1 S.C.R. xvi; 252 N.R. 394; 134 O.A.C. 196, refd to. [paras. 25, 70].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 31].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 31].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 31].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 31].

Ontario (Attorney General) v. Fineberg (Inquiry Officer) (1994), 73 O.A.C. 311; 19 O.R.(3d) 197 (Div. Ct.), refd to. [para. 35].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 36].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 36].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 36].

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [para. 44].

R. v. Metropolitan Police Commissioner; Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), refd to. [para. 44].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 44].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 44].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 44].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 44].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 44].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 46].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 53].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 53].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 53].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183, refd to. [para. 53].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 53].

Maranda v. Richer - see Maranda v. Leblanc.

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, refd to. [para. 53].

Ontario (Minister of Correctional Services) v. Goodis et al., [2006] 2 S.C.R. 32; 350 N.R. 154; 214 O.A.C. 377; 2006 SCC 31, refd to. [para. 53].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 53].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 53].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 53].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 53].

Ontario (Minister of Labour) et al. v. Big Canoe (1999), 127 O.A.C. 173; 46 O.R.(3d) 395 (C.A.), refd to. [para. 70].

Ontario (Attorney General) v. Pascoe et al. (2002), 166 O.A.C. 88; 22 C.P.R.(4th) 447 (C.A.), refd to. [para. 70].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 10(1) [para. 19]; sect. 14, sect. 19 [para. 22]; sect. 23 [para. 23].

Authors and Works Noticed:

Brandeis, Louis D., What Publicity Can Do, Harper's Weekly (1913), generally [para. 37].

Mitchinson, Tom, Assistant Commissioner, Ontario Information and Privacy Commissioner, "Public Interest" and Ontario's Freedom of Information and Protection of Privacy Act (February 16, 2001), generally [para. 27].

Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People (Williams Commission Report) (1980), generally [para. 27].

Williams Commission Report - see Ontario, Report of the Commission on Freedom of Information and Individual Privacy, Public Government for Private People.

Counsel:

Daniel Guttman, Sophie Nunnelley and Don Fawcett, for the appellants;

David Stratas, Brad Elberg, Trevor Guy and Ryan Teschner, for the respondent;

Christopher Rupar and Jeffrey G. Johnston, for the intervenor, the Attorney General of Canada;

Dominique A. Jobin, for the intervenor, the Attorney General of Quebec;

Written submissions only by Edward A. Gores, Q.C., for the intervenor, the Attorney General of Nova Scotia;

Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Nathaniel Carnegie and Deborah Carlson, for the intervenor, the Attorney General of Manitoba;

Allan Seckel, Q.C., and Deanna Billo, for the intervenor, the Attorney General of British Columbia;

Barbara Barrowman, for the intervenor, the Attorney General of Newfoundland and Labrador;

William S. Challis, Stephen McCammon and Allison Knight, for the intervenor, Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario;

Mahmud Jamal and Karim Renno, for the intervenor, the Canadian Bar Association;

Marlys Edwardh, Daniel Brunet and Jessica Orkin, for the intervenor, the Information Commissioner of Canada;

Guy J. Pratte and Nadia Effendi, for the intervenor, the Federation of Law Societies of Canada;

Paul B. Schabas and Ryder Gilliland, for the intervenors, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association and the Canadian Association of Journalists;

Catherine Beagan Flood and Iris Fischer, for the intervenor, the British Columbia Civil Liberties Association.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellants;

Heenan Blaikie, Toronto, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Minister of Justice, Quebec, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervenor, the Attorney General of Nova Scotia;

Attorney General of New Brunswick, Fredericton, N.B., for the intervenor, the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the intervenor, the Attorney General of Newfoundland and Labrador;

Information and Privacy Commissioner of Ontario, Toronto, Ontario, for the intervenor, Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervenor, the Canadian Bar Association;

Information Commissioner of Canada, Ottawa, Ontario, for the intervenor, the Information Commissioner of Canada;

Borden Ladner Gervais, Ottawa, Ontario, for the intervenor, the Federation of Law Societies of Canada;

Blake Cassels & Graydon, Toronto, Ontario, for the intervenors, the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers' Association and the Canadian Association of Journalists;

Blake Cassels & Graydon, Toronto, Ontario, for the intervenor, the British Columbia Civil Liberties Association.

This appeal was heard on December 11, 2008, before McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On June 17, 2010, McLachlin, C.J.C., and Abella, J., jointly delivered the following judgment in both official languages for the Court.