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Criminal Lawyers’ Association v. Ministry of Community Safety and Correctional Services

November 15, 2016

Divisional Court finds that the Ministry of Community Safety and Correctional Services improperly disregarded the direction of the Information and Privacy Commissioner with respect to an OPP Report sought by the Criminal Lawyers’ Association

In 1999, the Criminal Lawyers’ Association (CLA) requested access to a report prepared by the OPP. The report detailed an investigation of police conduct that was triggered by a judgment of Justice Glithero in 1997, in which he stayed a murder prosecution after identifying 17 instances of “deliberate non-disclosure or suppression, of virtually every piece of evidence that was of probable assistance to the defence”.

Upon completion of its investigation, the OPP issued a brief press release indicating that, despite Justice Glithero’s scathing judgment, it had found no instances of improper police conduct. The CLA submitted a request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) to the Minister for the OPP investigation report.

The Ministry refused to release the OPP report, and this refusal was eventually the subject of an appeal by the CLA to the Supreme Court of Canada, which in 2010 remitted the request back to the Information and Privacy Commissioner (IPC). The Supreme Court found that the IPC had not properly reviewed the Ministry’s decision in claiming the s.14(2)(a) (law enforcement report) exemption, and ordered that the Ministry’s claim of this exemption be returned to the Commissioner for reconsideration.

On reconsideration before the IPC, the Ministry re-exercised its discretion, but continued to claim that the s.14(2)(a) exemption provided a valid basis to withhold substantial portions of the OPP Report. The Ministry explained that it chose to exercise its discretion to claim the law enforcement exemption in accordance with the wishes of certain individual witnesses who had provided statements to the OPP and who had not consented to the release of this information. The CLA challenged the Ministry’s exercise of discretion, and also argued that the law enforcement exemption was not properly applicable to the portions of the report that the Ministry continued to withhold.

In three successive decisions, the IPC concluded that the Ministry had improperly exercised its discretion. The IPC twice ordered the Ministry to re-exercise its discretion in accordance with the IPC’s guidance, but to no avail.

In its third and final decision, the IPC stated: “The Ministry’s revised decisions in response to these orders demonstrate a repeated refusal to heed [the IPC’s] guidance. As a result, while I do not uphold the Ministry’s exercise of discretion […], I find it would serve no useful purpose to return this matter to the Ministry for a further re-exercise of its discretion based on principles the Ministry has chosen to disregard.”

The CLA once again applied for judicial review.

In its judgment, the Divisional Court concluded that under the terms of the Supreme Court’s remission order, the IPC was required to reconsider both the applicability of the s.14(2) exemption to the report (and parts thereof) and the propriety of the Ministry’s exercise of discretion in claiming this exemption. The IPC had erroneously narrowed the scope of the remittal and failed to consider the question of the applicability of the s.14(2)(a) exemption. The Divisional Court therefore remitted the matter back to the IPC to determine whether the portions of the report that remain at issue qualify for exemption.

With respect to the Ministry’s exercise of discretion, the Divisional Court noted its agreement with the IPC’s analysis, holding that the Ministry had exercised its discretion on the basis of an improper consideration, namely the absence of consent from certain interviewees. The Court remitted this issue to the IPC, to be considered in the event that any portion of the report was found by the IPC to qualify for exemption.

Finally, the Court acceded to the CLA’s request for a declaration, concluding that declaratory relief would serve a useful purpose given that the Ministry had refused to exercise its discretion properly, despite the IPC’s orders that it do so. The Court thus issued a declaration that the Ministry disregarded the proper direction of the IPC with respect to its exercise of discretion to claim the s.14(2)(a) exemption with respect to the OPP report.

Read the Divisional Court’s decision.

Lawyers

Jessica Orkin, Natai Shelsen

Practice Areas

Appeals & Judicial Review, Privacy & Access to Information