Access to Information and the Charter

Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society.  Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.

So begins the Supreme Court of Canada (“SCC“) in its June 17 decision Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 (“Ontario v. Criminal Lawyers“).

Ontario v. Criminal Lawyers involved an in-depth analysis of whether access to information was constitutionally protected under s. 2(b) of the Charter, which guarantees the right to freedom of expression. The SCC found that access to documents in government hands is constitutionally protected only where it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned.

This decision was reached by adopting the Irwin Toy Ltd v. Quebec (Attorney General), [1989] 1 S.C.R. 927 framework for determining whether a government action breaches s. 2(b) of the Charter. It is a three step test:

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?

The Court provided some commentary on the first two stages of the test.

1) Does the activity in question have expressive content, thereby bringing it within the reach of s. 2(b)?

To demonstrate that there is expressive content in accessing a document, the claimant has to show that the denial of access effectively precludes meaningful commentary. In the case of demands of government documents, the relevant s. 2(b) purpose is usually the furtherance of discussion on matters of public importance.

Such a discussion would include being able to put forward opinions and criticisms of practices and proceedings.

It is interesting to note that where there already exists sufficient information about a matter in the public sphere, then the non-disclosure of information by the government would not hinder meaningful commentary on the matter, as there is already information in the public.

2) Is there something in the method or location of that expression that would remove that protection?

This part of the test relates to privileges, such as solicitor-client privilege, where the public interest in confidentiality outweighs the interests served by disclosure.

Another example would be internal court records.  The Courts have long held that forcing judges to release their internal memos would impair the proper functioning of a court by preventing full and frank deliberation and discussion at the pre-judgement stage.

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A not insignificant part of an immigration lawyer’s practice involves requesting government information.  While the federal Access to Information Act, R.S.C. 1985, c. A-1 currently provides sufficient means to access information, it is always open to the government to change the legislation and make it more restrictive.  This Supreme Court ruling provides helpful clarification into the limits of how government can amend the Access to Information Act.


One thought on “Access to Information and the Charter

  1. I am just reasoning that Canada is by far the easiest destination to migrate to, they are really basically pleading with citizens to choose the country. It is astonishing to consider that at least 40% belonging to the cities are immigrants.

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