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CLA scores legal victory in 1998 case

Case focuses on privacy issues
|Written By Alex Robinson

The Criminal Lawyers Association has scored a victory in a long legal battle with the provincial government over the release of parts of a report that detailed police conduct in a 1998 murder investigation.

Jessica Orkin said a recent decision is ‘unprecedented’ in chastising the province’s Ministry of Community Safety and Correctional Services for failing repeatedly to follow the directions of the Information and Privacy Commissioner of Ontario.

The Divisional Court has ordered the Information and Privacy Commissioner to reopen an appeal by the Criminal Lawyers Association challenging the Ministry of Community Safety and Correctional Service’s refusal to release the information under the Freedom of Information and Protection of Privacy Act.

The Privacy Commissioner had found the ministry had improperly withheld the report on three occasions but, according to the decision, closed the appeal “on the basis that he had no other recourse to address the Ministry’s improper exercise of discretion.”

“We find that the Ministry failed to follow the direction of the IPC regarding the proper exercise of its discretion,” Justice Bonnie Warkentin wrote in the decision, Criminal Lawyers’ Association v. Ministry of Community Safety and Correctional Services.

The lawyer who represented CLA on the matter, Jessica Orkin of Goldblatt Partners LLP, says the court’s declaration finding the ministry had acted improperly and disregarded the proper directions was extraordinary.

“The government fights hard in some cases and wrongly so to avoid its obligations of disclosure under the Freedom of Information Act,” says Orkin.

The dispute dates back to 1998, when the CLA first requested access to the report under the act.

The report was compiled after a murder prosecution was stayed by the judge, who found 17 instances of “deliberate non-disclosure or suppression, of virtually every piece of evidence that was of probable assistance to the defence.”

The Ontario Provincial Police then conducted an investigation into the matter, but the OPP said it had come to the conclusion that there was no improper police conduct.

The ministry refused the CLA’s FIPPA request to access the report. The CLA then appealed to the privacy commissioner on a constitutional challenge, which was dismissed.

The case has stretched on for more than 15 years through appeals that went all the way up to the Supreme Court of Canada and back.

Orkin says the case is past the point of pressing public concern as it happened years ago.

The issue has now moved from the particulars of the case to the fact it should not take 18 years to get public scrutiny of such a case, Orkin says.

“This is now past the principles of what’s in the report to the principles of the Freedom of Information process,” says Orkin.

Along the way, parts of the report were released via disclosure, but 81 pages have not been released.

The provincial government argued that the information that had not been released was protected under s. 14(2)(a) of the act, which provides an exemption that allows government agencies to withhold any documents that are to do with law enforcement reports.

Orkin, however, says that large parts of the report are simply transcripts of interviews and that a recitation of observation does not fall under the exemption.

After the case went up to the Supreme Court level, the ministry only released the information when witnesses that were interviewed in the transcripts consented.

The privacy commissioner told the ministry it was exercising its discretion wrongly, which was ignored by the ministry.

 “It was improper for the Ministry to use the lack of consent of the interviewees as the basis for refusing to release the withheld portions of the Report,” Warkentin wrote.

“Had the three witnesses consented to the release of the information, the Ministry would have had no valid concerns regarding the release of the pages that remain at issue from the Report.”

Molly Reynolds, a lawyer with Torys LLP who was not involved in the case, says the case reinforces whether regulators such as the Privacy Commissioner should be given more enforcement powers, to make parties pay fines for non­compliance.

She also says it taps into a discussion in the privacy and access to information area about the extent to which “exemptions from disclosure in federal and provincial access to information legislation can and should override the principle of public access to records of public bodies and government agencies.”

The Divisional Court remitted the decision back to the privacy commissioner to determine whether the exemption is available.

“We have already found that the Ministry has refused to exercise its discretion properly despite the Commissioner’s orders that it do so,” Warkentin wrote.

“We find that a declaration will serve a useful purpose and assist in the resolution of the dispute.”

Brent Ross, a spokesman for the Ministry of Community Safety and Correctional Services, said the Ministry is currently reviewing the decision.

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