The Ontario Court of Appeal struck a historic blow for freedom of information Friday, ruling that government officials cannot simply suppress information about a notorious Ontario murder case without first considering the public interest in its release.
Ignoring the virtues of open, informed debate seriously damages the reputation of the justice system “and places us back to an era where government secrecy was the norm, and disclosure was at the whim of the minister,” a 2-1 majority said.
The ruling will likely force the province to hand over an internal Ontario Provincial Police report into the botched prosecution of two men who were acquitted in the execution-style murder of gangster Domenic Racco in 1983.
Ontario's Information and Privacy Commissioner, Ann Cavoukian, said in an interview Friday that she was “delighted” by the ruling. “It is a wonderful day for openness and transparency. The manacles are off.”
Lawyer Frank Addario, a spokesman for the group that won Friday's case – the Criminal Lawyers Association – expressed optimism that the province will accept its loss with dignity.
“This is the first time that a secrecy provision in FOI legislation has been successfully attacked in North America,” Mr. Addario said. “There has always been a big gap between the promise of FOI laws and their delivery; a gap that is nursed by governments that think they own the information. I hope the government will take the high road, decline to appeal, and start working on a new approach to public access to information.”
The case has run a long and circuitous course. In 1997, Graham Court and Denis Monaghan were acquitted of murdering Mr. Racco based on police misconduct and Crown non-disclosure of evidence.
In a terse, one-paragraph release, the OPP later exonerated the police of any wrongdoing. However, the force refused to release its 318-page decision, relying on special FOI exemptions invoking law enforcement and solicitor-client privilege.
CLA lawyers David Stratas, Brad Elberg and Trevor Guy – with help from the Canadian Newspaper Association – challenged the provisions that were used to suppress the report.
While the Office of the Information and Privacy Commissioner of Ontario responded to their request by saying that there was a clear public interest in releasing the report, the office lacked the power to override the province and force it to hand it over.
In Friday's majority ruling, Mr. Justice Harry LaForme and Madam Justice Jean McFarland said that public debate involving a notorious criminal case is a form of “expressive activity” that must clearly be given protection under the Charter of Rights and Freedoms.
They rejected government arguments that opening up a so-called “public interest override” provision will lead to a costly and disruptive flood of litigation from individuals and media organizations.
However, in a toughly written dissent, Mr. Justice Russell Juriansz said it was altogether too presumptuous for judges to read constitutional guarantees into legislation where parliamentarians specifically refused to do so.
“It would be a ‘very big step' for the courts to interpret the Charter as guaranteeing a right of access to government information where such a right was proposed, considered and rejected by Canada's parliamentary representatives,” he said.