When does the Constitution require disclosure of governmental documents?

Ontario v. Criminal Lawyers' Association, 2010 SCC 23, released today, deals with when the Constitutional right to free expression requires government documents must be released. Put narrowly, such mandatory release will seldom be required -- only where the release is needed for meaningful expression on the functioning of government will there be mandatory release. The Court writes:

[30] The first question to be addressed is whether s. 2(b) protects access to information and, if so, in what circumstances.  For the reasons that follow, we conclude 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.

 

[31] Determining whether s. 2(b) of the Charter requires access to documents in government hands in a particular case is essentially a question of how far s. 2(b) protection extends.  A question arises as to how the issue should be approached.  The courts below were divided on whether the analysis should follow the model adopted in Dunmore v. Ontario (Attorney General), 2001 SCC 94,   [2001] 3 S.C.R. 1016.  In their argument before this Court, some of the parties also placed reliance on Dunmore and on this Court's subsequent decision in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673.  In our view, nothing would be gained by furthering this debate.  Rather, it is our view that the question of access to government information is best approached by building on the methodology set in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 967-68, and in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141).   The main question in this case is whether s. 2(b) is engaged at all.  We conclude that 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.  We further conclude, as discussed more fully below, that in this case these requirements are not satisfied.  As a result, s. 2(b) is not engaged.

 

[32] The Irwin Toy framework involves three inquiries: (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 Montréal (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.

 

[33] This leads us to more detailed comments on the scope of s. 2(b) protection where the issue is access to documents in government hands.  To demonstrate that there is expressive content in accessing such documents, the claimant must establish that the denial of access effectively precludes meaningful commentary.  If the claimant can show this, there is a prima facie case for the production of the documents in question.  But even if this prima facie case is established, the claim may be defeated by factors that remove s. 2(b) protection, e.g. if the documents sought are protected by privilege or if production of the documents would interfere with the proper functioning of the governmental institution in question. If the claim survives this second step, then the claimant establishes that s. 2(b) is engaged.  The only remaining question is whether the government action infringes that protection.

 

[34] The first inquiry into expressive content asks whether the demand for access to information furthers the purposes of s. 2(b).  In the case of demands for government documents, the relevant s. 2(b) purpose is usually the furtherance of discussion on matters of public importance.

 

[35] Not every demand for government information serves this purpose.  Thus the jurisprudence holds that there is no general right of  access to information.  The position is well put in Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.), per Adams J.:

 

By contrast, our political access makes government bureaucracy accountable to elected officials who, in turn, conduct their business in the context of public elections and legislatures and where the media, again, play a fundamental reporting role. . . . Against this tradition, it is not possible to proclaim that s. 2(b) entails a general constitutional right of access to all information under the control of government and this is particularly so in the context of an application relating to an active criminal investigation. [Emphasis added; p. 204.]

 

 

[36] To show that access would further the purposes of s. 2(b), the claimant must establish that access is necessary for the meaningful exercise of free expression on matters of public or political interest:  see Irwin Toy, at pp. 976 and 1008; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.  On this basis, the Court has recognized access to information under s. 2(b) in the judicial context: "members of the public have a right to information pertaining to public institutions and particularly the courts" (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1339). The "open courts" principle is "inextricably tied to the rights guaranteed by s. 2(b)" because it "permits the public to discuss and put forward opinions and criticisms of court practices and proceedings" (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23, per La Forest J.).

 

[37] In sum, there is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. As Louis D. Brandeis famously wrote in his 1913 article in Harper's Weekly entitled " What Publicity Can Do": "Sunlight is said to be the best of disinfectants ... ."  Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions. 

 

[38] If this necessity is established, a prima facie case for production is made out.  However, the claimant must go on to show that the protection is not removed by countervailing considerations inconsistent with production.

 

[39] Privileges are recognized as appropriate derogations from the scope of the protection offered by s. 2(b) of the Charter.  The common law privileges, like solicitor-client privilege, generally represent situations where the public interest in confidentiality outweighs the interests served by disclosure.  This is also the rationale behind common law privileges that have been cast in statutory form, like the privilege relating to confidences of the Queen's Privy Council under s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C‑5.  Since the common law and statutes must conform to the  Charter, assertions of particular categories of privilege are in principle open to constitutional challenge.  However, in practice, the outlines of these privileges are likely to be well- settled, providing predictability and certainty to what must be produced and what remains protected.

 

[40] It may also be that a particular government function is incompatible with access to certain documents.  For example, it might be argued that while the open court principle requires that court hearings and judgments be open and available for public scrutiny and comment, memos and notes leading to a judicial decision are not subject to public access. This would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage.  The principle of Cabinet confidence for internal government discussions offers another example.  The historic function of a particular institution may assist in determining the bounds of institutional confidentiality, as discussed in Montréal (City), at para. 22.  In that case, this Court acknowledged that certain government functions and activities require privacy (para. 76).  This applies to demands for access to information in government hands.  Certain types of documents may remain exempt from disclosure because disclosure would impact the proper functioning of affected institutions.

 
James Morton
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