Canadian Supreme Court decision

Yesterday there was a landmark decision by the Canadian Supreme Court, in Ministry of Public Safety and Security (Formerly Solicitor General) and Attorney General of Ontario vs Criminal Lawyers’ Association (and others). You can read the decision in full here. The Globe and Mail details the case:

The Supreme Court of Canada has ruled that an internal police report into a botched 1983 police investigation can potentially be suppressed without violating constitutional guarantees to free expression and informed public debate.

However, in a 7-0 ruling today, the Court also recognized the importance of information in a democracy and recognized a right to obtain suppressed information that is necessary to a full public debate of an important issue.

“To demonstrate that there is expressive content in accessing these documents, a claimant must establish that the denial of access effectively precludes meaningful public discussion on matters of public interest,” Chief Justice Beverley McLachlin and Madam Justice Rosalie Abella wrote for the Court.

It said in the right circumstances, citizens can wrest confidential information from government hands unless it is protected by privilege, Cabinet confidentiality or its disclosure would interfere with the proper functioning of a government institution.

And (my emphasis):

Lawyers who argued the case welcomed the ruling as a long-awaited recognition of the role that access to information plays in a democracy.

“Canada has become the first western country to recognize that access to information is not just a gift to Canadians,” said lawyer Brad Elberg, who represented the Criminal Lawyers Association. “It is guaranteed to us as part of our constitutional right of freedom of expression. If a court finds that a citizen requires government information to meaningfully express her or himself, the constitution may require the government to give the citizen access to that information.”

The best line of the judgement:

In sum, there is a prima facie case that s. 2(b) [of the c 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. As Louis D. Brandeis famously wrote in his 1913 article in Harper’s Weekly entitled “ What Publicity Can Do”: “Sunlight is said to be the best of disinfectants … .” 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.

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