Supreme Court constitutionalizes access to information

Cross-referencing: NSL, ch. 10, p. 387

In a long-awaited judgment in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association (CLA), the Supreme Court has recognized a constitutional right to access to information, contained in section 2(b) of the Charter of Rights and Freedoms.  This development is a logical outgrowth of the Court's "open court" jurisprudence relating to section 2.  What is less clear are the implications this development will have for the Access to Information Act, and specifically those exemptions and exclusions related to national security.  (The case involved the Ontario information law, but is obviously of more general import to other access law regimes.)

Access as a Constitutional Right: Giving with one hand

In the Court's words, section 2(b) guarantees access to government documents, but "only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints" (at para. 31). 

Confining the application of section 2 to circumstances where the access is required "to permit meaningful
discussion on a matter of public importance" has two obvious implications.  First, the constitutional right does not overlap, one for one, with the statutory right found in, e.g., section 4 of the Access to Information Act
The latter extends a right of access, without any proviso about the broader social importance of gaining access.  Obviously, therefore, not every instance in which one has a statutory right to access will trigger a constitutional right to access.  The Supreme Court expressly recognizes this at para. 35: "there is no general [constitutional] right of  access to information".

Second, the threshold of "necessary to permit meaningful discussion on a matter of public importance" will be a source of uncertainty.  The Supreme Court amplified its meaning at para. 33: "the
claimant must establish that the denial of access effectively precludes meaningful
commentary".  At para. 36, it indicates that: "the claimant must establish that access is necessary for the meaningful exercise of free expression on matters of public or political interest" and at para. 37, it writes that "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."

Words like "meaningful" and "substantially" and "public or political interest" vary with the eyes of the beholder, and this will soon become an active area of litigation.  But one can imagine instances where, in
the national security area, the standards implied by  these words is met.  Plausible examples from recent history would include, e.g., the treatment of Mr. Arar and Afghan detainee transfers -- both public policy issues of enormous import, meaningful discussion of which is near impossible if government circle the documentary wagons.

Limitations on the Constitutional Right: Taking with the other hand

 

Even if a claimant has a constitutional right to access, this is merely a prima facie right that may be negated "by countervailing considerations inconsistent with production" of the information (at para. 38).  In CLA, the Court illustrated what it meant with reference to common law privileges (such as solicitor-client privilege and informer privilege), Cabinet confidences, and hypothetical government functions "incompatible with access to certain documents" (at paras. 39 and 40).  This last category presents, of course, the biggest question mark.

In essence, the Court is inviting scrutiny of the many exemptions and exclusions to access enumerated in the Access Act.  (For a discussion of the difference between exclusions and exemptions, see
NSL, ch.10 and the articles linked below).  This is a potentially notable development, at least in principle.  To this point, there was no constitutional basis to query these exemptions and exclusions.  Now there is.  This is not to say, however, that a court will conclude readily that the existing exemptions and exclusions are not proper "countervailing considerations".  But now the government will be obliged to rationalize these carve-outs from access.  And some may be difficult to rationalize -- both in their content and in their
application. 

(How and where a section 1 justification fits into this analysis is less than clear to me.  In essence, the Court's approach defines the scope of the section 2(b) right to access with reference to "countervailing considerations", a concept that trenches on the sort of considerations that seem relevant to (and redundant
with) a section 1 analysis)

Here are some likely, national security-related candidates for constitutional second guessing under the Access Act:

 

The national security exclusion in section 69.1

Exclusions
are rightly controversial because they remove entire classes of
information from the Access Act regime, and in particular review by the
Access Commissioner.  The national security exclusion in s.69.1 was
added by the 2001 Anti-terrorism Act.  It is overbroad, poorly
defined, unnecessary and difficult to reconcile with the then-existing
exemptions under the Act.  For a fuller discussion of these points by
this author, see NSL, ch. 10 and also “Canada’s National
Security ‘Complex’: Assessing the Secrecy Rules”
and “Clouding
Accountability: Canada’s Government Secrecy and National Security Law
‘Complex’
.

All these doubtful qualities of s.69.1 are now subject to scrutiny
in a constitutional challenge under section 2(b), and it is no sure
thing that the government would prevail.  Indeed, I have my doubts that
there is any room left for exclusions (as opposed to exemptions) in the
post-CLA world.  For the reasons I discuss next, classes of information
that are automatically excluded from disclosure once pigeon-holed into
a particular category, with no discretion to release, seem difficult to
reconcile with the Court's reasoning. 

Information obtained in confidence from another government exemption

The list of national security-related exemptions in the Access Act
is a long one, but one that probably ranks first in terms of doubtful
qualities is found in section 13: information obtained in confidence
from, e.g., a foreign government.  As discussed in “Canada’s National
Security ‘Complex’: Assessing the Secrecy Rules”
, this
is an important exemption, used for honouring the third party rule
relating to intelligence-sharing between intelligence agencies.  It is
also a mandatory exemption -- that is, the government has no discretion
to allow disclosure when the information falls into this class.

I
wonder whether mandatory exemptions can survive constitutional
scrutiny: even if there is good reason for holding back foreign
confidences, to make the exemption absolute may take the exemption
outside of those good reasons.  A clipping of The Times of London
supplied by MI5 in confidence cannot be disclosed (absent permission
from the UK), even if doing so creates no threat to national security. 

This is not the way it works under s.38 of the Canada Evidence Act,
where judges are charged with conducting a balancing exercise weighing
security against other interests -- put another way, there is
discretion involved in the disclosure decision.  If it works there, why
not in the Access Act regime, where government, the information
commissioner on complaint and the Federal Court on judicial review
might perform a similar balancing? 

Now that a requester under the Access Act can, in some instances, claim a prima facie constitutional
right to information, it is very difficult to see how the absolute,
non-balancing approach found in mandatory exemptions under the Access
Act can be regarded as a proper "countervailing consideration" in
defining the access right.  I would note that the existence of a
discretion to release in the exemptions at issue in the CLA case
figured prominently in the Supreme Court's willingness to view these
limits on access as consistent with section 2(b) (at para. 43 et seq).

Predictions

To
conclude, and at risk of being proven wrong, here are my predictions on
the fall-out from the CLA decision: mandatory exemptions in the Access
Act, such as the confidences from foreign government, are dead (there
must be discretion to release) and the national security exclusion, as
currently drafted, is on thin ice.