Ontario (Public Safety and Security) v. Criminal Lawyers' Association

Ontario (Public Safety and Security) v. Criminal Lawyers' Association

Section 2(b) does not guarantee general access to government documents; it is engaged only where access is necessary for meaningful public discussion, subject to privileges and institutional functional constraints. The omission of ss.14 and 19 from the s.23 public interest override does not violate s.2(b) because those provisions, properly interpreted, already incorporate public interest considerations and permit discretionary disclosure; solicitor‑client records at issue remain exempt, but the s.14 claim must be remitted to the Commissioner to review whether the Minister's discretion was properly exercised.

Citation
2010 SCC 23
Parties
Appellants: Ministry of Public Safety and Security (Formerly Solicitor General) and Attorney General of Ontario; Respondent: Criminal Lawyers' Association; Intervener: Attorney General of Canada; Intervener: Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario; Interveners: Canadian Newspaper Association; Ad IDEM/Canadian Media Lawyers' Association; Canadian Association of Journalists; Intervener: Canadian Bar Association
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
17 June 2010
Procedural Posture
Appeal to the Supreme Court of Canada Challenging Constitutionality of Statutory Access Regime / Judgment on Appeal From the Ontario Court of Appeal; Remitted Aspects to Information and Privacy Commissioner
Outcome
Appeal allowed in part; Court of Appeal decision set aside; Assistant Information and Privacy Commissioner’s order restored in part
Legal Topics
Freedom of Expression (charter S.2(b)), Freedom of Information and Protection of Privacy Act (fippa) Ss.14, 19, 23, Solicitor‑client Privilege, Law Enforcement Privilege, Public Interest Override, Standard of Review of Administrative Discretion
Source Language
English
Constitutional Law Access to Information Law Administrative Law Evidence Law Freedom of Expression (charter S.2(b)) Freedom of Information and Protection of Privacy Act (fippa) Ss.14,19,23 Solicitor‑client Privilege Law Enforcement Privilege +2 more

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Parties

Ministry of Public Safety and Security (Formerly Solicitor General) and Attorney General of Ontario

Appellants

Criminal Lawyers' Association

Respondent

Attorney General of Canada

Intervener

Tom Mitchinson, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario

Intervener

Canadian Newspaper Association; Ad IDEM/Canadian Media Lawyers' Association; Canadian Association of Journalists

Interveners

Canadian Bar Association

Intervener

Procedural Posture

Appeal to the Supreme Court of Canada Challenging Constitutionality of Statutory Access Regime / Judgment on Appeal From the Ontario Court of Appeal; Remitted Aspects to Information and Privacy Commissioner

Legal Issues

  1. 1 Whether s.23 of FIPPA violates s.2(b) of the Charter by excluding ss.14 (law enforcement) and 19 (solicitor‑client) from the public interest override
  2. 2 Whether s.2(b) protects a constitutional right of access to government‑held documents and, if so, in what circumstances
  3. 3 Whether ss.14 and 19 already incorporate public interest considerations and discretionary review by the head

Ratio Decidendi

Section 2(b) does not guarantee general access to government documents; it is engaged only where access is necessary for meaningful public discussion, subject to privileges and institutional functional constraints. The omission of ss.14 and 19 from the s.23 public interest override does not violate s.2(b) because those provisions, properly interpreted, already incorporate public interest considerations and permit discretionary disclosure; solicitor‑client records at issue remain exempt, but the s.14 claim must be remitted to the Commissioner to review whether the Minister's discretion was properly exercised.

Court Disposition

Appeal allowed in part; Court of Appeal decision set aside; Assistant Information and Privacy Commissioner’s order restored in part

Orders

  • Allow the appeal
  • Set aside the decision of the Ontario Court of Appeal