The Supreme Court of Canada today handed down its long awaited judgment in Ministry of Public Safety and Security v Criminal Lawyer’s Assocation (2010 SCC 23) dealing with the relationship between freedom of information and freedom of expression.  The judgment had been reserved for a remarkable period of 17 months, having been heard on 11 December 2008.  The hearing is discussed here on “The Court” blog.  The Supreme Court unanimously allowed the appeal, holding that the right to freedom of expression was not engaged.

The case concerned the public interest override provision in section 23 of the Freedom of Information and Protection of Privacy Act 1990 (Ont).  A judge had stayed a murder trial on grounds of material non-disclosure by the prosecution, making very critical remarks about the police, including abusive conduct, deliberate editing of useful information and negligently failing to maintain original evidence. The provincial police investigated and issued a press release saying there was no evidence of a deliberate attempt to obstruct justice.

The claimant was an NGO which monitored the criminal justice system. It was concerned about the discrepancy between the judge’s findings and the outcome of the investigation by the provincial police. It sought access to documents concerning that investigation, which was refused by the government, relying on solicitor-client privilege. The exemption claims were upheld, but the Information Commissioner applied the public interest override to order release of the documents to which it applied. The commissioner could not do so with respect to the documents to which solicitor-client privilege applied because this was excluded from the operation of the override by the terms of section 23.

The Court of Appeal of Ontario ((2007) 86 OR (3d) 259) held that section 23 unjustifiably limited the applicant’s right of freedom of expression as guaranteed in section 2(b) of the Charter because section 23 did not allow solicitor-client privilege to be overridden when the public interest compellingly required it.   It held that the public interest override provision infringed the association’s right to freedom of expression because the scheme of the freedom of information legislation was to assist expression.  It ordered words to be read into the statute to permit a public interest override in solicitor client privilege cases.

This analysis was rejected by a unanimous Supreme Court.  It held that section 2(b) of the Charter did not guarantee access to all documents in government hands.  To demonstrate that there is expressive content in accessing these documents, a claimant must establish that the denial of access effectively precludes meaningful public discussion on matters of public interest. If this necessity is established, a prima facie case for production is made out, but the claimant must go on to show that there are no countervailing considerations inconsistent with production.  The legislature’s decision not to make privileged documents subject to the s. 23 public interest override did not violate the right to free expression guaranteed by s. 2(b) of the Charter.  The appellant had not demonstrated that meaningful public discussion could not take place  under the current legislative scheme and, as a result, section 2(b) was not engaged.

Although the Court was referred to the recent judgments from the European Court of Human Rights (discussed here) they were not considered in the judgment. A number of interveners including the media and information commissioners had argued that the “right to know” is now recognized in the constitutions of dozens of countries and that the respondent’s arguments would put Canada out of sync with international norms.   The decision is a disappointment for those who have sought to argue that the right to freedom of expression now includes an implied right to access to government information.  Inforrm participant Paul Schabas, who appeared for the intervening Canadian Newspaper Association criticised the decision as flying in the face of an emerging international trend to recognize a more sweeping constitutional right to access government information:

“This leaves Canada in a kind of middle-ground position, which is in a way surprising because 25 or 30 years ago Canada was a leader in bringing in access to information laws.   It was one of the first to do this and now with these kinds of constraints around access to information, we’re no longer a leader in recognizing the importance of transparency laws.”