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Access to information at a crossroads: Implications of the long-gun registry case

CBA Law Series webinar

by Suzanne Legault, Information Commissioner of Canada and Dr. Vincent Kazmierski, Associate Professor, Department of Law and Legal Studies, Carleton University

November 8, 2016
Ottawa, Ontario

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Presentation Overview

  1. The Right to Know (Nationally and Internationally)
  2. The Long-gun Registry Investigation and Constitutional Challenge
  3. The Principle of the Rule of Law
  4. The Constitutional Right to Know in Canada
  5. Assessment of the Constitutional Challenge
  6. Status of the Constitutional Challenge
  7. Discussion
  8. Questions

The Right to Know in Canada

The Access to Information Commissioner is an Agent of Parliament responsible for overseeing the administration of the Access to Information Act (Act or ATIA).

As an Agent of Parliament, the Commissioner is independent from the executive and directly accountable to Parliament.

The core function of the Office of the Information Commissioner (OIC) is to investigate complaints about the way in which government institutions process access to information requests under the Act.

The Access to Information Act creates and protects a public right of access to government information; the right of access facilitates meaningful participation in public debate and discussion as well as public scrutiny of government activities:

The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para. 61

These objectives are reflected in section 2 of the ATIA, which, in addition to stating the purpose of the Act (to provide a right of access to records under the control of government institutions subject to the Act), sets out its guiding principles. These include:

  • the principle that government information should be available to members of the public;
  • that necessary exceptions to the right of access be limited and specific; and
  • that decisions regarding the disclosure of government information be reviewed independently of government.

The right of access is set out in section 4 of the Act, which establishes a public right to records under the control of government institutions subject to the Act.

Significantly, the right of access operates notwithstanding any other Act of Parliament and has been recognized by the Supreme Court to be quasi-constitutional in nature.

Subsection 4(2.1) also imposes on government institutions a duty to make every reasonable effort to assist requesters without regard to their identity and to provide them with timely access to requested information.

The Act sets out a variety of statutory exemptions, which permit or require the heads of government institutions to refuse to disclose requested information on the basis of various protected interests.

In particular, it sets out exemptions for information obtained in confidence from other governments (s. 13), information relating to both national security (s.15) and law enforcement and investigations (s. 16), personal information (s. 19), third party information (s. 20), information related to the operation of government (s. 21) and solicitor-client privilege (s. 23).

The Act does not apply to published materials (s. 68) or to cabinet confidences (s. 69).

The Commissioner investigates all valid complaints made under the ATIA in a thorough, unbiased and fair manner. She is required to receive various types of complaints, including those relating to processing delays, fees, official languages, missing records and the application of exemptions.

The ATIA requires that investigations carried out by the OIC be conducted in private (s. 35(1)).

It also requires that complainants, government institutions and any third party participants be given a reasonable opportunity to present their views (s.35(2)).

The ATIA provides for two levels of independent review – the OIC performs the first level of review by investigating complaints under the Act; the second level of independent review is performed by the Federal Court.

Where the Commissioner finds a complaint to be well-founded, section 37 requires her to issue a report to the head of the government institution in question setting out her findings and making any recommendations she considers appropriate.

Government institutions are not bound by any such recommendations.

Where the head of an institution refuses to provide access to a requested record, the Act entitles the complainant to initiate judicial review proceedings in Federal Court (s. 37(5) / 41).

The judicial review is not of the Commissioner’s investigation, but rather of the decision of the head of the institution to refuse to access to the requested records.

In these circumstances, the Act permits the Commissioner to appear on behalf of a complainant (s. 42(1)(b)) or to appear in her own right as a party to the proceedings (s. 42(1)(c))).

The Act also entitles the Commissioner to institute judicial review proceedings with the consent of the complainant (s. 42(1)(a)); in such circumstances, the complainant is entitled to appear as a party (s. 42(2)).

The ATIA contains two separate offence provisions:

  • section 67 establishes an offence, punishable on summary conviction (fine not exceeding $1,000), for obstructing the Commissioner in the performance of her duties and functions under the ATIA; and
  • section 67.1 establishes an offence for destroying, mutilating, altering, falsifying, or concealing a record or directing, proposing, counselling or causing anyone to do any of these prohibited acts with the intent to deny a right of access under the Act.

Section 67.1 may be prosecuted as an indictable offence (imprisonment for a term not exceeding 2 years or a fine not exceeding $10,000 or both) or on summary conviction (imprisonment for up to 6 months or a fine not exceeding $5,000 or both).

International Recognition of the Right to Know

International Law Instruments

  • Universal Declaration of Human Rights (article 19)
  • International Covenant on Civil and Political Rights (article 19)

International Law Instruments (Regional)

  • American Convention on Human Rights (article 13)
  • European Convention on Human Rights (article 10)
  • African Charter on Human and Peoples Rights (article 9)

Interpretation of International Law Instruments

Constitutional Protection Outside Canada

  • More than 50 countries that include protection of right to access government information in their constitutions
    (Right2Info.org)

Legislative Protection Outside Canada

  • More than 100 countries with FOI legislation (Centre for Law and Democracy)

The Long-Gun Registry Investigation

May 6, 2015: The Attorney General sends the Commissioner’s referral to the Director of Public Prosecutions (DPP) to take further steps as appropriate. 

May 7, 2015:  The government tables the Economic Action Plan 2015 Act , No. 1 (Bill C-59)  in Parliament. Division 18 of this omnibus legislation contains retroactive amendments to ELRA that:

  1. exclude the application of the ATIA to records related to the registration of long-guns or to the destruction of such records to the date on which ELRA was tabled (October 25, 2011);
  2. immunize public actors involved in the destruction of long-gun registry records against any administrative, civil or criminal proceedings on or after the date ELRA received royal assent (April 5, 2012); and
  3. immunize public actors for any act or omission done “in purported compliance with” the ATIA between the date on which ELRA was tabled (October 25, 2011) and the date the Economic Action Plan 2015 Act, No. 1 received royal assent (June 23, 2015).

May 13, 2015:  The DPP formally requests that the Ontario Provincial Police (OPP) investigates the possible criminal obstruction of Mr. Clennett’s right of access.

May 14, 2015: The Commissioner tables a Special Report in Parliament reporting the results of her investigation. The same day, she files an application for judicial review  in Federal Court.

June 3, 2015: OIC files a motion in Federal Court for an order preventing the destruction of the backup copy of the long-gun registry records from Quebec.

June 22, 2015: Justice Martineau grants the OIC’s motion and orders the Minister of Public Safety to produce a hard drive containing the backup copy of the long-gun records from Quebec to the Federal Court Registry Office.

The Commissioner and Mr. Clennett file an application in Ontario Superior Court challenging the constitutionality of the retroactive amendments to ELRA enacted by the Economic Action Plan 2015 Act.

June 23, 2015: The Minister complies with the Federal Court’s preservation order.

The Economic Action Plan 2015 Act receives royal assent.

September 23, 2015: The OPP notifies the OIC that the effect of the retrospective immunization of public actors involved in the destruction of long-gun registry records from incurring any liability is to nullify the basis for conducting any investigation into possible criminal wrongdoing.

November 13, 2015: Four different groups file motions to intervene in the constitutional challenge in Ontario Superior Court. These groups include:

  • The Ontario Information and Privacy Commissioner on behalf of the Access to Information and Privacy Commissioners from all provinces and territories other than New Brunswick;
  • The Canadian Civil Liberties Association (CCLA);
  • The Criminal Lawyers’ Association (CLA); and
  • The Centre for Law and Democracy (CLD).

The Constitutional Challenge

In challenging the constitutionality of the retroactive amendments to ELRA enacted by the Economic Action Plan 2015 Act, the OIC sought orders from the Ontario Superior Court declaring that these amendments:

  1. unjustifiably infringe section 2(b) of the Canadian Charter of Rights and Freedoms, including the derivative right of access to information recognized by the Supreme Court of Canada in Ontario v. Criminal Lawyers’ Association, 2010 SCC 23;
  2. violate the constitutional principles of the rule of law and judicial independence by retroactively expunging vested rights of access to government information and to access a Court to enforce those rights; and
  3. violate the constitutional principle of the rule of law by retroactively immunizing public officials who interfered with such vested rights from incurring any liability.

In this case, the requester, Mr. Clennett, is a committed social and political activist who has demonstrated long-standing engagement with issues and initiatives surrounding gun violence and violence against women. 

In the OIC’s submission, Mr. Clennett’s access to the remaining long-gun registry data is necessary to his ability to meaningfully exercise his expressive rights in relation to questions of gun control, gun violence, including violence against women, and public safety in Quebec.

In the OIC’s submission, the retroactive amendments to ELRA must be scrutinized for compliance with the principle of the rule of law insofar as they:

  1. nullify a requester’s quasi-constitutional right of access and infringe section 2(b) of the Charter;
  2. confer a retrospective immunity to public officials who may have engaged in criminal obstruction of the requester’s vested rights; and
  3. nullify the jurisdiction of both the OIC and the Federal to review decisions about the disclosure of government information independently of government.

In our view, the retroactive amendments to ELRA are fundamentally inconsistent with Canadian constitutional values and mark too significant a departure from the precepts of the principle of the rule of law to be upheld.

The Interveners’ Arguments

Provincial and Territorial Information and Privacy Commissioners:

This intervention amplifies the OIC’s position by underscoring the full, nationwide scale of the impact of the Superior Court’s ultimate decision, particularly given that the access to information statutes in each of the Commissioners’ respective provinces and territories are substantially similar not only to the ATIA, but also to one another.

The Commissioners also make distinctive arguments about the impacts of the amendments to ELRA on the administrative independence facet of the principle of judicial independence.

In particular, they argue that these amendments impair the administrative independence of the OIC and the Federal Court by negating their jurisdiction to independently review government decision-making with respect to the disposition of all long-gun registry records.

Canadian Civil Liberties Association (CCLA):

The CCLA’s intervention focuses on the question of whether the amendments to ELRA violate the derivative right of access protected under section 2(b) of the Charter.

CCLA focuses on assisting the Court to take a purposive approach to interpreting and applying the constitutional right of access to government information, particularly given limited judicial guidance on how to interpret and apply this right. 

It does so with reference to international treaties and conventions as well as the decisions of foreign courts that recognize and give effect to the “right to know” as a central component of freedom of expression and one of the pillars of a free and democratic society.

Centre for Law and Democracy (CLD):

CLD’s intervention is also focused on the section 2(b) Charter issue.

CLD argues that, although the right to access government-held information has been recognized as a protected right under the Charter, there has been very little subsequent litigation involving this right and therefore that this is an area of law where it is of particular importance for Canadian courts to take into account international human rights standards and practice.

Its intervention is focused on assisting the Court by providing a perspective on the right to information grounded in international law as reflected in authoritative international standards as well as the law and practice of other countries.

Criminal Lawyers’ Association (CLA):

The CLA’s intervention focuses on the rule of law. It argues that the amendments to ELRA engage the rule of law by:

  1. being retrospective in nature, which is contrary to the established principle that all substantive changes to public law be prospective in nature; and
  2. being targeted to benefit state actors who were alleged to have contravened the law as opposed to amendments that universally applied to all citizens.

CLA argues that this is the first case in which a change in substantive law, in this case a legislative change that repeals a prohibition on behaviour, has been made retroactively so as to immunize past actions that may have violated a statute in effect at the time of the action and which could have attracted sanctions.

CLA also argues that state actors obtained the benefit of a retrospective immunization that ordinary citizens never obtained.

The Principle of the Rule of Law (SCC)

Acknowledgement/development of the rule of law principle by the SCC

  • Reference re Secession of Quebec, [1998] 2 SCR 217 (Quebec Secession Reference)
  • British Columbia v. Imperial Tobacco Canada Ltd, 2005 SCC 49 (Imperial Tobacco)
  • British Columbia (AG) v. Christie, 2007 SCC 21 (Christie)
  • Trial Lawyers’ Association of British Columbia v. British Columbia (AG), 2014 SCC 59 (Trial Lawyers’ Association)

“The principles of constitutionalism and the rule of law lie at the root of our system of government. The rule of law, as observed in Roncarelli v. Duplessis, [1959 S.C.R. 121, at p. 142, is ‘a fundamental postulate of our constitutional structure’. As we noted in the Patriation Reference, supra, at pp. 805-6, ‘[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority’. At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.”

Quebec Secession Reference at para. 70

  1. “the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all.”
  2. "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order".
  3. "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law.”

Quebec Secession Reference at para. 71

“So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials' actions be legally founded…”

Imperial Tobacco at para. 59 [emphasis added]

“This does not mean that the rule of law as described by this Court has no normative force. As McLachlin C.J. stated in Babcock, at para. 54, ‘unwritten constitutional principles’, including the rule of law, ‘are capable of limiting government actions’. See also Reference re Secession of Quebec, at para. 54. But the government action constrained by the rule of law as understood in Reference re Manitoba Language Rights and Reference re Secession of Quebec is, by definition, usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e. the procedures by which legislation is to be enacted, amended and repealed).”

Imperial Tobacco at para. 60 [emphasis added]

“The appellants' conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions and to support Strayer J.A.'s thesis. They submit that the rule of law requires that legislation (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act breaches each of these requirements, rendering it invalid.”

Imperial Tobacco at para. 63

“It is clear from a review of these principles that general access to legal services is not a currently recognized aspect of the rule of law. However, in Imperial Tobacco, this Court left open the possibility that the rule of law may include additional principles. It is therefore necessary to determine whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law.”

Christie at para. 21 [emphasis added]

“In the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract or theoretical. If people cannot challenge government actions in court, individuals cannot hold the state to account – the government will be, or seen to be, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered, as laws will not be given effect. And the balance between the state’s power to make and enforce laws and the courts’ responsibility to rule on citizen challenges to them may be skewed…”

Trial Lawyers’ Association at para. 40 [emphasis added]

The Constitutional Right to Know in Canada

Recognition of importance of right to ‘informed vote’ and to  ‘meaningful’ participation in political process (pre-CLA decision)

Section 2(b) cases:

  • Haig v. Canada (Chief Electoral Officer), [1993] 2 SCR 995
  • Libman v. Quebec (AG), [1997] 3 SCR 569
  • Thomson Newspapers v. Canada (AG), [1998] 1 SCR 877
  • Harper v. Canada (AG), [2004] 1 SCR 827

Section 3 cases:

  • Figuerora v. Canada (AG), [2003] 1 SCR 912
  • Harper v. Canada (Attorney General), [2004] 1 SCR 827

“This case engages the informational component of an individual’s right to meaningfully participate in the electoral process. The right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner. For a voter to be well informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be ‘reasonably informed of all the possible choices’:  Libman, at para. 47.”

Harper, 2004 SCC 33 at para. 71, per Bastarache J. [emphasis added]

The Constitutional Right to Know in Canada (Criminal Lawyers’ Association)

Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23

Facts: Request for access to reports concerning OPP investigation of police misconduct (already identified by Judge).

Legislation: Ontario Privacy Act FIPPA, ss. 14, 19, 23.

Issue: Whether the failure to extend the s. 23 public interest override to documents for which law enforcement or solicitor-client privilege are claimed violates the guarantee of freedom of expression in s. 2(b) of the Charter.

Decision: No violation of s. 2(b) in this case; but decision ‘unreasonable’ on admin law grounds.

“Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of expression, but it does not guarantee access to all documents in government hands. 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.”

Criminal Lawyers’ Association, at para. 5

“…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.”

Criminal Lawyers’ Association at para. 30 [emphasis added]

The Irwin Toy approach to s. 2(b) in CLA:

  1. Does the activity in question have expressive content?
  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?

1) Does the activity in question have expressive content?

“To demonstrate that there is expressive content in accessing such documents, the claimant must establish that the denial of access effectively precludes meaningful commentary…

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… 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.”

Criminal Lawyers’ Association at paras. 33, 37 [emphasis added]

“In our view, the CLA has not demonstrated that meaningful public discussion of the handling of the investigation into the murder of Domenic Racco, and the prosecution of those suspected of that murder, cannot take place under the current legislative scheme. Much is known about those events… The record supporting [Justice Glithero’s] conclusions is already in the public domain. The further information sought relates to the internal investigation of the conduct of the Halton Regional Police, the Hamilton-Wentworth Regional Police and the Crown Attorney in this case...However, the CLA has not established that it is necessary for meaningful public discussion of the problems in the administration of justice relating to the Racco murder.”

Criminal Lawyers’ Association at para. 59 [emphasis added]

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

“… 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 government institution in question.”

Criminal Lawyers’ Association at para. 33

Examples of ‘countervailing considerations’

i) Privileges

  • Common law privileges e.g. solicitor/client
  • Privileges incorporated by statute – e.g. protection of cabinet confidences in Canada Evidence Act

“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.”

Criminal Lawyers’ Association at para. 39 [emphasis added]

Examples of ‘countervailing considerations’

ii) Government functions incompatible with access to certain documents

  • Judicial decision-making process
  • Cabinet confidences

“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.”  

Criminal Lawyers’ Association at para. 40 [emphasis added]

“If necessity were established, the CLA … would face the further challenge of demonstrating that access to ss. 14 and 19 documents, obtained through the s. 23 override, would not impinge on privileges or impair the proper functioning of relevant government institutions. As discussed, ss. 14 [law enforcement records] and 19 [solicitor client privilege] are intended to protect documents from disclosure on these very grounds. On the record before us, it is not established that the CLA could satisfy the requirements of the above framework.”

Criminal Lawyers’ Association at para. 60 [emphasis added]

3) If the activity is protected, does the state action infringe that protection, either in purpose or effect?

“The ultimate answer to the CLA's claim is that the absence of the second-stage review, provided by the s. 23 override for documents within ss. 14 and 19, does not significantly impair any hypothetical right to access government documents, given that those sections, properly interpreted, already incorporate consideration of the public interest. The CLA would not meet the test because it could not show that the state has infringed its rights to freedom of expression.”

Criminal Lawyers’ Association at para. 61

Assessment of the Constitutional Challenge

  • The SCC and the rule of law as an unwritten principle – reluctance tempered by exceptions
  • The SCC and Access to Information – a mixed record in recent years
    • Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25
    • Merck Frosst Canada Ltd v. Canada (Health), 2012 SCC 3
    • Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31
    • John Doe v. Ontario (Finance), 2014 SCC 36
  • The Long Gun Registry case as the ‘perfect storm’
  • Applying the ‘rule of law’ principle (combined with judicial independence)
    • Complete exclusion of access to tribunals and courts
    • Insulation of public officials from accountability for improper exercises of public authority (not financial liabilities)
  • Applying Criminal Lawyers’ Association (s. 2(b)):
    1. Expressive Content
      • “effectively precludes”/“substantial impediment” - retroactive elimination of all rights of access
      • “meaningful public discussion and criticism on matters of public interest” – gun violence etc.
      • “meaningful public debate on the conduct of public institutions” – intentional destruction of documents subject to investigation
    2. Interfere with Privilege or Government Function?
    3. State action infringes protection
  • Applying Criminal Lawyers’ Association (s. 1):
    1. Prescribed by Law
    2. Pressing and Substantial Objective – ‘”fixing a loophole”?
    3. Proportionality
      1. Rational Connection
      2. Minimal Impairment – alternatives to absolute prohibition of access?
      3. Proportionality – balancing the absolute elimination of access right?

Status of the Constitutional Challenge

In early March, 2016, the current Minister of Public Safety, Ralph Goodale, wrote to the Commissioner to propose placing the timetable for the constitutional challenge on hold pending settlement negotiations aimed at resolving both this litigation and the associated litigation in Federal Court.

Shortly thereafter, the Commissioner and Mr. Clennett each consented to suspend the timetable pending negotiations, which remain ongoing.

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