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ThomsonReuters-HR_LT_Nov17_16.indd 1 2016-11-17 12:55 PM Fresh Ontario legal news and analysis Get More Online LawTimesNews.com Case focuses on privacy issues CLA scores legal victory in 1998 case BY ALEX ROBINSON Law Times T he Criminal Lawyers Association has scored a victory in a long legal battle with the provin- cial government over the release of parts of a report that detailed police conduct in a 1998 murder investigation. The Divisional Court has or- dered the Information and Pri- vacy Commissioner to reopen an appeal by the Criminal Law- yers Association challenging the Ministry of Community Safety and Correctional Service's re- fusal to release the information under the Freedom of Informa- tion and Protection of Privacy Act. The Privacy Commission- er had found the ministry had improperly withheld the report on three occasions but, accord- ing to the decision, closed the appeal "on the basis that he had no other recourse to address the Ministry's improper exercise of discretion." "We find that the Ministry failed to follow the direction of the IPC regarding the proper exercise of its discretion," Jus- tice Bonnie Warkentin wrote in the decision, Criminal Law- yers' Association v. Ministry of Community Safety and Cor- rectional Services. The lawyer who represented CLA on the matter, Jessica Or- kin of Goldblatt Partners LLP, says the court's declaration finding the ministry had acted improperly and disregarded the proper directions was extra- ordinary. "The government fights hard in some cases and wrongly so to avoid its obligations of disclo- sure under the Freedom of In- formation Act," says Orkin. The dispute dates back to 1998, when the CLA first re- quested access to the report under the act. The report was compiled af- ter a murder prosecution was stayed by the judge, who found 17 instances of "deliberate non-disclosure or suppression, of virtually every piece of evi- dence that was of probable as- sistance to the defence." The Ontario Provincial Po- lice then conducted an investi- gation into the matter, but the OPP said it had come to the conclusion that there was no improper police conduct. The ministr y refused the CLA's FIPPA request to ac- cess the report. The CLA then appealed to the privacy com- missioner on a constitution- al challenge, which was dis- missed. The case has stretched on for more than 15 years through ap- peals that went all the way up to the Supreme Court of Canada and back. 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 prin- ciples of what's in the report to the principles of the Freedom of Information process," says Orkin. Along the way, parts of the report were released via disclo- sure, but 81 pages have not been released. The provincial government argued that the information that had not been released was protected under s. 14(2)(a) of the act, which provides an exemp- tion that allows government agencies to withhold any docu- ments that are to do with law enforcement reports. Orkin, however, says that large parts of the report are sim- ply transcripts of interviews and that a recitation of observation does not fall under the exemp- tion. After the case went up to the Supreme Court level, the min- istry only released the informa- tion when witnesses that were interviewed in the transcripts consented. The privacy commissioner told the ministry it was exercis- ing its discretion wrongly, which was ignored by the ministry. "It was improper for the Ministry to use the lack of con- sent of the interviewees as the basis for refusing to release the withheld portions of the Re- port," Warkentin wrote. "Had the three witness- es consented to the release of the information, the Ministry would have had no valid con- cerns regarding the release of the pages that remain at issue from the Report." Molly Reynolds, a lawyer with Torys LLP who was not involved in the case, says the case reinforces whether regula- tors such as the Privacy Com- missioner should be given more enforcement powers, to make parties pay fines for non- compliance. She also says it taps into a discussion in the privacy and access to information area about the extent to which "exemptions from disclosure in federal and provincial access to information legislation can and should override the principle of public access to records of public bodies and government agencies." The Divisional Court re- mitted the decision back to the privacy commissioner to deter- mine whether the exemption is available. "We have already found that the Ministry has refused to ex- ercise its discretion properly despite the Commissioner's or- ders that it do so," Warkentin wrote. "We find that a declaration will serve a useful purpose and assist in the resolution of the dispute." Brent Ross, a spokesman for the Ministry of Community Safety and Correctional Servic- es, said the Ministry is currently reviewing the decision. LT Jessica Orkin said a recent decision is 'unprecedented' in chastising the prov- ince's Ministry of Community Safety and Correctional Services for failing repeatedly to follow the directions of the Information and Privacy Commissioner of Ontario. We have already found that the Ministry has refused to exercise its discretion properly despite the Commissioner's orders that it do so. Bonnie Warkentin

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