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‘Right’ of access to information heads to high court for appeal
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Should access to government information be elevated to a constitutional right?
The Supreme Court of Canada, in a massive legal challenge that is drawing more than a dozen interveners, will consider today whether access to-information laws, which permit the public to see documents that the state seeks to keep secret, are so restrictive that they violate freedom of expression.
The Ontario government will try to keep the constitutional door closed, urging the court to consider that restricted access to government information is “part of our history and our constitutional tradition” and “the Canadian Charter was not intended to turn this state of affairs on its head.”
The appeal reaches the court at a time when governments face growing criticism for their inner workings being shrouded in secrecy amid toothless access laws, which are under fire for containing so many exemptions that they effectively block the release of information.
“While everyone has a protected right to speak to government, including the right to request information, there is no correlative Charter right to an answer from government,” Ontario’s legal brief says.
Six provinces and the federal government are siding with Ontario, urging the judges to show restraint when deciding whether the public has a constitutional entitlement to open government as part of the Charter of Rights guarantee to freedom of expression.
Lawyers on the other side of the courtroom, including civil libertarians, journalists, and access-to-information commissioners, will counter that the “right to know” is recognized in the constitutions of dozens of countries and that Canada would be out of sync with international norms were the Supreme Court to rule otherwise.
“Government’s denial of access to information of public interest concerning the administration of our democratic institutions deprives the public of the building blocks of political expression,” argues Tom Mitchinson who is the assistant information and privacy commissioner for Ontario, .
The Criminal Lawyers Association, representing the Ontario defence bar, will defend its victory in the Ontario Court of Appeal, which broadened access-to-information legislation by ruling that the public interest should be considered before denying a request.
The court ordered the release of a police report on a botched murder investigation into the 1983 death of reputed underworld gangster Dominic Racco.
First-degree murder charges against Mr. Racco’s alleged assailants were stayed in 1997 by a judge who chastised police and prosecutors for abusive conduct.
The Ontario Provincial Police, which was asked to review the conduct of investigators, issued a terse news release nine months later clearing the officers in question of obstruction of justice.
The Criminal Lawyers’ Association sought access to the police records in the conduct probe, but it was denied under Ontario’s access-to-information law, which contains an exemption on law enforcement information.
Other provinces, including Alberta, British Columbia and Nova Scotia, permit the release of police documents if the public interest outweighs the need for secrecy.
“Today, on occasions, public sentiment is jolted by discovery of what government has been doing without our knowledge, and as a result become alienated and distrustful of government,” the Criminal Lawyers’ Association legal team says in a court submission.
“With information and openness, our democracy flourishes, our political culture thrives. Without any information on a subject matter, there will be no thought, belief, opinion, or expression on the subject matter,” the submission states.
The association argues that, without access-to-information laws, the Liberal sponsorship scandal involving misspent millions of federal money in Quebec would have never come to light.
“There would have been no public discussion on the issue and the 2006 federal election might have turned out differently.”
The British Columbia Civil Liberties Association, an intervener in the case, will argue that open government is as important as open courts.
The group says it is not necessary for the court to pronounce on the full scope of access rights, but at the very least the bench should at least declare that the public interest must be weighed in each case before denying information.
A ruling on the case is not expected for months.