Criminal Lawyers Association scores legal victory in 1998 case
The Law Times spoke to Jessica Orkin about her recent victory in the Divisional Court in a case involving a 15 year quest for information from the Ministry of Community Safety and Correctional Services.
In 1999, the Criminal Lawyers’ Association (CLA) filed a request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) asking for a copy of a report prepared by the OPP. The report detailed an investigation of police conduct that had been ordered following a 1997 judgment in which the judge 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”.
Despite the scathing judicial decision, the OPP claimed that its investigation had found no instances of improper police conduct. The CLA sought access to the report, but the Ministry refused to release it.
During repeated appeals over some 15 years, including an appeal that went all the way to the Supreme Court of Canada, the Ministry refused to release the entire report. It claimed that it had the discretion to rely on a law enforcement exemption under FIPPA that would allow it to withhold those parts of the report that recorded statements of individual witnesses who did not consent to have their statements released to the CLA.
The Information and Privacy Commissioner repeatedly concluded that the Ministry was improperly withholding the report, but ultimately gave up and closed the matter “on the basis that he had no other recourse to address the Ministry’s improper exercise of discretion.”
The CLA successfully sought judicial review of the Commissioner’s decision to close the appeal. The Divisional Court set aside the Commissioner’s decision to close the case, and made certain orders and declarations. A summary of the case can be found here.
Jessica explained the significance of the case to The Law Times:
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.
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.