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Document
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PO-1931
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File #
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PA-990399-1
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Institution/HIC
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Ministry of the Attorney General
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Summary
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BACKGROUND:
In Order PO-1882, Adjudicator Donald Hale provided some background information relating to the
appellant and her husband and the various freedom of information requests and appeals that have
been filed by these individuals, which I feel would be helpful to reproduce for the purposes of this
order. Adjudicator Hale explained the following:
The appellant and her husband were the owners of a vacation property in eastern
Ontario. Over the past ten years, they were involved in a number of disputes with
their neighbours which resulted in a series of complaints to the local Ontario
Provincial Police (OPP) detachment and charges being laid against the appellant’s
husband. As a result of these complaints and counter-complaints to the OPP, a
number of investigations were undertaken, which resulted in the creation by the
OPP of a large number of records such as occurrence reports, witness statements
and notebook entries.
The appellant initiated several requests with the Ministry of the Solicitor General
(the Ministry) and the Ministry of the Attorney General seeking access to a wide
range of records relating to various investigations and prosecutions undertaken by
the OPP, the local Crown Attorney’s office and the office of the Public Complaints
Commission, for example. These requests have also given rise to several appeals to
the Commissioner’s office which have resulted in the issuance of Orders PO-1708,
P-1618, P-1472, P-1457 and P-585, as well as other pending decisions. ...
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of
Information and Protection of Privacy Act (the Act) for access to the following records:
(1) “the complete Crown Brief(s) and Crown Attorney files in the matter(s) of R. v. [name of
appellant’s husband]”;
(2) the "complete Provincial Court file for a trial held in May, August and September of 1997",
including “the judge's notes";
(3) “the affidavit of Service and Court documents showing the disposition of a Summons
served on [the appellant’s husband] in 1991", including “the complete information, both
sides, related to that Summons”; and
(4) copies of two specific Informations, both sides, laid in 1992.
The appellant’s request, which was outlined in two separate letters to the Ministry, also included
additional details in order to assist the Ministry in locating the responsive records. With her
request, the appellant provided the Ministry with a letter from her husband consenting to the
disclosure of his personal information.
Subsequently, the Ministry wrote to the appellant advising that, in accordance with section 27 of
the Act, the Ministry was extending the time to respond to the request by an additional 14 days.
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[IPC Order PO-1931 / July 27, 2001]
The Ministry did not, however, issue its decision by the specified date and the requester later
appealed the Ministry’s deemed refusal. Appeal File PA-990287-1 was opened by this Office to
deal with that matter.
Subsequently, the Ministry issued a decision letter to the appellant granting partial access to the
responsive records. The Ministry relied on sections 49(a) and (b) of the Act, with specific reference
to sections 19 (solicitor-client privilege), 21 (invasion of privacy) and/or 22(a) (information
published or available) of the Act, to deny access to the remainder of the records.
With respect to the records which were denied by the Ministry pursuant to section 22(a), the
Ministry advised the appellant as follows:
Lastly, access to another part of the record (approximately 38 pages) is denied under
subsection 49(a) in conjunction with subsection 22(a) of the Act as the record is
currently available to the public. The exempt records consist of court transcripts
including the Pre-Trial dated September 20, 1996, and the Reasons for Judgement
dated September 22, 1997, and the Information.
I note that although the Ministry indicated that approximately 38 pages were withheld pursuant to
section 22(a), according to the Ministry’s index of records and based on my review of the records
at issue, only 29 pages are withheld by the Ministry pursuant to this exemption.
The Ministry also advised the appellant that should she wish to obtain a copy of the court
transcripts, she should contact the Court Reporter’s Office. Similarly, the Ministry indicated that if
the appellant wishes to obtain a copy of the Information, she should contact the Criminal Court
Office. The Ministry provided the appellant with the relevant information in this regard.
Also in its decision, the Ministry advised the appellant that the requested “Provincial Court file”
and the "judge’s notes" are not in the custody or under the control of the Ministry.
In turn, the appellant advised that the Ministry’s decision did not address all of the information
which was being sought by the appellant. As a result, the Ministry conducted a further search and
located additional records responsive to the appellant’s request. The Ministry then issued a
supplementary decision to the appellant and granted partial access to these records. The Ministry
denied access to the remainder of the records, pursuant to sections 49(a) and 49(b), with specific
reference to sections 13 (advice or recommendations), 19, 21 and 22(a) of the Act.
In view of the above, the appellant’s deemed refusal appeal was resolved and Appeal File PA-
990287-1 was closed. The appellant appealed the Ministry’s two decisions regarding access to the
responsive records and, in turn, the current appeal (PA-990399-1) was opened. During the
mediation stage of the appeal, the appellant informed the Mediator that she is no longer pursuing
access to the Reasons for Judgment (record 112), judge’s notes or the court transcripts from the
first day of the trail (May 26, 1997) (record pages B170 - B267). Accordingly, these records are
no longer at issue in this appeal. Also during mediation, the Ministry disclosed records 1, 2, 42, 61
and 235 - 237 to the appellant.
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[IPC Order PO-1931 / July 27, 2001]
A Notice of Inquiry was sent by this office to the Ministry, initially. The Ministry submitted
representations in response to the Notice. The Ministry also disclosed one additional record [page
101(a)] in total to the appellant. Accordingly, this record is no longer at issue in this appeal.
Subsequently, I sent a modified Notice of Inquiry, reflecting matters arising from the Ministry’s
representations, to the appellant along with the non-confidential portions of the representations.
The appellant also provided representations, which were forwarded, in part, to the Ministry for
reply. Reply submissions were made by the Ministry.
In her representations, the appellant indicated that she is not pursuing access to the severed potions
of Records B71, B82 and B84. Accordingly, these records are no longer at issue in this appeal.
The appellant also indicated that she was not seeking access to any medical reports or medical
information concerning any individuals other than herself or her husband. The records that consist
of such information are Records: 165-171. Accordingly, these records are also no longer at issue
in this appeal.
Also in her representations, the appellant indicated that after reviewing the Notice of Inquiry with
respect to the issue of custody and control, the appellant agrees that records maintained by the
Provincial Court are not subject to the Act. Accordingly, I will not consider this issue further.
Finally, the appellant raised the possible application of the public interest override contained
section 23, which I will address below.
RECORDS:
The records remaining at issue in this appeal include correspondence, memoranda, interview
reports, occurrence and supplementary reports, witness lists, handwritten notes, an Information,
copies of photographs, witness statements, police officers’ notes, photocopies of reported court
decisions, transcript of a pre-trial, and other related documents.
DISCUSSION:
PERSONAL INFORMATION
Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded
information about an identifiable individual, including any identifying number assigned to the
individual and the individual's name where it appears with other personal information relating to
the individual or where the disclosure of the name would reveal other personal information about
the individual.
All of the records at issue in this appeal pertain to the criminal charges which had been brought
against the appellant’s husband and the prosecution of that matter. As such, I find that they contain
the appellant's husband’s personal information. Most of these records also contain the personal
information of the appellant.
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[IPC Order PO-1931 / July 27, 2001]
A large number of records also contain information pertaining to other identifiable individuals,
including witnesses. This information consists of the names and addresses of various named
individuals, information about the nature of their complaints against the appellant and her husband,
as well as the evidence that was provided during the appellant’s husband’s trial.
Section 47(1) of the Act gives individuals a general right of access to their own personal
information held by a government body. Section 49 provides a number of exceptions to this
general right of access.
The Ministry is relying on section 49(a) to exempt the remaining records at issue from disclosure
on the basis of the exemptions contained in sections 13, 19 and 22(a).
Section 49(a) states:
A head may refuse to disclose to the individual to whom the information relates
personal information,
where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to
the disclosure of that personal information. [emphasis added]
I will consider whether the records qualify for exemption under sections 13, 19 and 22(a) as a
preliminary step in determining if section 49(a) applies.
SOLICITOR-CLIENT PRIVILEGE
Introduction
Section 19 of the Act reads:
A head may refuse to disclose a record that is subject to solicitor-client privilege or
that was prepared by or for Crown counsel for use in giving legal advice or in
contemplation of or for use in litigation.
Section 19 encompasses two heads of privilege, as derived from the common law: (i) solicitorclient
communication privilege; and (ii) litigation privilege. In order for section 19 to apply, the
institution must establish that one or the other, or both, of these heads of privilege apply to the
records at issue.
Representations
The appellant submits that any communication between the Crown Attorneys and the appellant or
her solicitor is not protected by solicitor-client privilege. Similarly, the appellant argues that any
communication between the Crown Attorneys and witnesses is also not covered under this
exemption. The appellant also submits that the privilege with respect to certain records may have
been waived if the records were disclosed by an OPP officer to an individual outside the OPP or
the Crown Attorney’s office. The appellant further argues that solicitor-client privilege cannot
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[IPC Order PO-1931 / July 27, 2001]
apply to information which has been tendered in evidence in a proceeding. Finally, the appellant
submits that litigation privilege in the records has terminated and that any further litigation
involving the Ministry before the Ontario Court of Appeal or the Ontario Civilian Commission on
Police Services (OCCPS) is not related to the prosecution of her husband.
The Ministry relies on “branch 2" of section 19 with respect to all of the records which remain at
issue in this appeal, with the exception of Records 113 and 213-214, for which an exemption under
section 22(a) has been claimed. The Ministry submits that all of the records in the Crown files
were created and prepared by or for Crown counsel in contemplation of or for use in litigation at
the stage of trial, at the stage of appeal and at the stage of consideration of a new trial after the
Court of Appeal allowed the appellant’s husband’s appeal. The Ministry submits that it is not
aware of any further litigation continuing in this matter, but that section 19 privilege should apply
to the records at issue, even though litigation has terminated.
The Ministry takes the position that previous decisions of this office (Orders P-1342, P-1551 and
P-1561) relating to the termination of litigation and the limits placed on “branch 2" of the
exemption were in error and should not be applied to the case at hand. To a large extent, the
Ministry bases its arguments on the findings in orders pre-dating these newer orders.
The Ministry also submits the following:
There is nothing in the plain wording of branch 2 of section 19 that indicates that
this exemption ends when the litigation ends. If the Legislature had intended for the
branch 2 exemption to end when the litigation ended they could have written so in
the section. Branch 2 does not incorporate the rules that govern the solicitor-client
privilege. The rules governing the solicitor-client privilege apply to branch 1.
...
There are strong policy justifications for privilege under branch 2 of section 19 not
to end with the termination of litigation. The release of records from Crown files
could have a negative effect on the adversarial system of justice, in that there would
be a chilling effect on the creation of written records by Crowns. Crown counsel
prosecute highly sensitive criminal matters, and in order to prosecute effectively,
crown counsel should have the assurance that the legal advice that they provide and
the correspondence that they engage in will remain confidential even after the
prosecution is completed.
The Ministry also submits that the release of documents such as witness statements
and interview reports from Crown files after the termination of litigation could also
discourage prospective witnesses in future cases from cooperating with the police
and the Crown.
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[IPC Order PO-1931 / July 27, 2001]
Discussion of previous orders
In Order PO-1879, the Assistant Commissioner Tom Mitchinson dealt with an appeal involving the
Ministry where the records at issue pertained to a dangerous offender application made by the
Attorney General regarding a certain individual. In that appeal, the Ministry’s submissions relating
to the application of the section 19 exemption were similar to the Ministry’s representations in the
current appeal. In addressing the section 19 exemption and the Ministry’s arguments, the Assistant
Commissioner stated as follows:
Many previous orders of this Office, beginning with Order P-52, have indicated that
this section consists of two “branches”. The first “branch” has been found to
incorporate the common law concepts of solicitor-client communication privilege
and litigation privilege; while the second “branch” relates to the closing words of
the section (ie “... prepared by or for Crown counsel for use in giving legal advice
or in contemplation of or for use in litigation”).
The wording of section 19 raises the issue of whether the second “branch” is
intended to create a privilege that is broader or more durable than that which is
available at common law. This issue was considered in detail by Adjudicator Holly
Big Canoe in Order P-1342. In that case, she concluded that waiver of privilege had
occurred because of a disclosure by Crown counsel to the Law Society of Upper
Canada, resulting in the loss of privilege at common law. She then went on to
consider whether the closing words of the section allow the exemption to apply
despite the loss of common law privilege through waiver.
To assist in making this determination in Order P-1342, Adjudicator Big Canoe
reviewed the legislative history of section 19 in order to ascertain the legislature’s
intent. As she notes in that order, the closing words of the section were added to the
Act while it was being considered by the Standing Committee of the Legislative
Assembly. The following quotation from the Hansard record of the committee’s
proceedings explains the purpose of this change:
Hon. Mr. Scott: As I said the other day, this is just to expand the
coverage designed to ensure protection for solicitor-client material to
crown counsel, who according to how you view the law, may or may
not have a client and therefore may or may not have, technically, the
benefit of solicitor-client privilege. I would have not thought the
issue was contentious.
...
To be fair, Mr. Chairman, I do not think it really extends section 19;
it clarifies it. The use of the words, “for use in giving legal advice or
in contemplation of or for use in litigation” really adds nothing
because they would be within our understanding of what a solicitorclient
privilege is anyway.
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[IPC Order PO-1931 / July 27, 2001]
The key words, and the words that clarify, are “crown counsel”
because the case is made that crown counsel may not, in a highly
theoretical sense, have a client. Because crown counsel has a kind of
independent role that a normal lawyer does not have, a crown counsel
may be thought, in a technical sense, not to have a client. The
policeman is not the crown counsel’s client, but as a matter of
clarification it was recognized that opinions given by crown counsel
should be producible or not in the same way as opinions given by any
other crown lawyer.
(Monday, March 30, 1987, Morning Sitting, pages M-1, M-3)
Adjudicator Big Canoe determined that the closing words of the section were added:
... to avoid any problems that might otherwise arise in determining,
for purposes of solicitor-client privilege, who the “client” is. It
provides an exemption for all materials prepared for the purpose of
obtaining legal advice whether in contemplation of litigation or not,
as well as for all documents prepared in contemplation of or for use
in litigation.
She went on to conclude that this part of the section “is not intended to enable
government lawyers to assert a privilege which is more expansive or durable than
that which is available at common law to other solicitor-client relationships.”
Because waiver had occurred, she found that the exemption did not apply. In
Ontario (Attorney General) v. Big Canoe, [1997] O.J. No. 4495 (Div. Ct.), the
Divisional Court upheld Order P-1342.
Adjudicator Big Canoe subsequently considered the same issue in Order P-1551. In
that case, she found that where litigation had terminated, litigation privilege was no
longer available at common law, and for this reason privilege could no longer be
claimed under any part of the section 19 exemption. She stated:
In my view, consistent with [Ontario (Attorney General) v. Big
Canoe], other common law principles which define the scope of
solicitor-client and litigation privilege should apply equally to both
branches. This preserves for government institutions the full scope of
the privilege extended to private litigants.
In essence, former Adjudicator Big Canoe in her two orders was rejecting the
“branch 1/branch 2" distinction made by this Office in previous cases. In her view,
which I share, the Crown has the right to claim the equivalent protection of
solicitor-client privilege available at common law, but the additional words added to
the end of section 19 during legislative debate do not add to this right. In other
words, if records in the custody or control of an institution which would have been
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[IPC Order PO-1931 / July 27, 2001]
protected by solicitor-client privilege at common law lose this protection through
waiver or termination of litigation, then the fact that these records were prepared by
or for Crown counsel for use in giving legal advice or in contemplation of or for use
in litigation has no bearing on the application of the doctrine of solicitor-client
privilege. If privilege is lost or terminates at common law, then it is also lost or
terminates in the context of a solicitor-client relationship involving Crown counsel.
In the present appeal, the Ministry claims that all the records are exempt under
“branch 2" and states that “... the limitations of solicitor-client privilege do not
apply to Branch 2 of s. 19". In effect, the Ministry is arguing that Orders P-1342
and P-1551 were wrongly decided.
The Ministry submits that it was implicit in the Court’s ruling on the judicial review
of Order P-1342 that the section 19 privilege did not end when the litigation in that
case came to an end, or the court would not have considered waiver. I disagree
with this position, which is not supported by anything in the decision. It was open
to the Court, and to Adjudicator Big Canoe, to rely on waiver instead of termination
of litigation as a basis for concluding that privilege no longer existed. The opening
words of the endorsement are a succinct summary of the view taken by the Court:
In our view any obligation that counsel for the Crown had to the
Law Society did not obligate him to report anything that would
entail a breach of solicitor-client privilege. Accordingly by
reporting to the Law Society what was privileged, the Crown
voluntarily waived privilege and that information is no longer
shielded from disclosure under the Freedom of Information and
Protection of Privacy Act.
The Ministry also submits that the statement in Order P-1342 that section 19 is not
intended to create a privilege more durable than that which is available to “other
solicitor-client relationships” fails to take account of the fact that private solicitors
are not subject to requests under the Act. This submission implies that solicitors
acting for institutions are entitled to a higher form of privilege than private sector
counsel. This is in conflict with the legislative intent, as already canvassed, and
unsupported by anything in the law of privilege itself. The Ministry also argues that
“there is nothing in the plain meaning of the section that indicates that this
exemption ends when litigation ends”. Given the incorporation of common law
concepts of privilege into section 19, I do not accept this argument.
Moreover, the approach taken by Adjudicator Big Canoe in Orders P-1348 and P-
1551, relying on legislative history as a guide to legislative intent, is consistent with
the modern rule of statutory interpretation. In 2747-3174 Québec Inc. v. Quebec
(Régie des permis d’alcool) (1996), 140 D.L.R. (4th) 577 at 640 (S.C.C.), Madam
Justice L’Heureux-Dubé adopted the following passage from Professor R. Sullivan
in Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994),
at p. 131:
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[IPC Order PO-1931 / July 27, 2001]
There is only one rule in modern interpretation, namely, courts are
obliged to determine the meaning of legislation in its total context,
having regard to the purpose of the legislation, the consequences of
proposed interpretations, the presumptions and special rules of
interpretation, as well as admissible external aids. In other words,
the courts must consider and take into account all relevant and
admissible indicators of legislative meaning. After taking these into
account, the court must then adopt an interpretation that is
appropriate. An appropriate interpretation is one that can be justified
in terms of (a) its plausibility, that is, its compliance with the
legislative text; (b) its efficacy, that is, its promotion of the
legislative purpose; and (c) its acceptability, that is, the outcome is
reasonable and just.
Adjudicator Big Canoe’s conclusion that common law principles limit the
availability of section 19 is plausible given that this is a privilege-based exemption.
It is also efficacious because it promotes the purposes of access under the Act
identified at section 1, that “information should be available to the public” and that
“necessary exemptions from the right of access should be limited and specific.”
Moreover, its outcome is reasonable and just because it achieves a result that is
consistent with the availability of privilege at common law, and this important
public policy goal is therefore protected and promoted.
The Ministry also argues that Orders P-1342 and P-1551 contradict past decisions of
the Commissioner’s Office. It is well known that the doctrine of stare decisis does
not apply to administrative tribunals so as to make their own past decisions binding
on them. This allows them to develop their interpretation over time, as has
happened with the section 19 exemption. As stated by Justice Gonthier in Tremblay
v. Quebec (Commission des affaires sociales) (1992), 90 D.L.R. (4th) 609 (S.C.C.):
Ordinarily, precedent is developed by the actual decision-makers
over a series of decisions. The tribunal hearing a new question may
thus render a number of contradictory judgments before a consensus
naturally emerges. This, of course, is a longer process; but there is
no indication that the legislature intended it to be otherwise.
The type of approach described by Justice Gonthier is especially appropriate where
the Commissioner is required to interpret and apply an external body of law, such as
solicitor-client privilege, which is itself subject to change. In fact, the law of
privilege has changed considerably over time. For example, in Solosky v. R. (1979),
105 D.L.R. (3rd) 745 (S.C.C.) and Descoteaux v. Mierwinski (1982), 70 C.C.C. (2d)
385 (S.C.C.), the Supreme Court of Canada clarified that solicitor-client privilege,
formerly viewed as a rule of evidence, is also a substantive rule that could apply even
in the absence of court proceedings. More recently, in General Accident Assurance
Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.), the Ontario Court of Appeal altered
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[IPC Order PO-1931 / July 27, 2001]
the scope of litigation privilege to require that, in order for a document produced with
litigation in mind to qualify for litigation privilege, the dominant purpose for its
preparation must be reasonably contemplated litigation, to bring litigation privilege
in line with the modern trend of complete discovery. I applied this change in the law
in Order MO-1337-I.
The recent evolution of the Commissioner’s approach to the solicitor-client privilege
exemption is primarily reflected in Orders P-1342 and P-1551. As indicated in those
orders, the application of section 19 depends on the availability of common law
solicitor-client privilege. It encompasses two heads of privilege, as derived from the
common law: (i) solicitor-client communication privilege; and (ii) litigation
privilege. In order for section 19 to apply, the Ministry must demonstrate that one or
the other, or both, of these heads of privilege apply to the records at issue. The
“branch 1/branch 2" approach described in previous order of this Office, to the extent
that it may be interpreted as being inconsistent with the scope of solicitor-client
privilege described above, is not a useful analytical tool and should no longer be
applied.
I agree with the findings made by the Assistant Commissioner and Adjudicator Big-Canoe and
adopt them for the purposes of this appeal.
As far as the Ministry’s concerns regarding the legal advice provided by Crown counsel and the
correspondence that they engage in during the course of the litigation, it is possible that such
records will be covered by the section 19 exemption notwithstanding the termination of litigation,
as such records may be subject to the solicitor-client communication privilege, which I will address
below.
Solicitor-Client Communication Privilege
At common law, solicitor-client communication privilege protects direct communications of a
confidential nature between a solicitor and client, or their agents or employees, made for the
purpose of obtaining professional legal advice. The rationale for this privilege is to ensure that a
client may confide in his or her lawyer on a legal matter without reservation (Order P-1551).
This privilege has been described by the Supreme Court of Canada as follows:
… all information which a person must provide in order to obtain legal advice
and which is given in confidence for that purpose enjoys the privileges attaching
to confidentiality. This confidentiality attaches to all communications made
within the framework of the solicitor-client relationship …
(Descôteaux v. Mierzwinski, supra, at 618, cited in Order P-1409)
The privilege has been found to apply to “a continuum of communications” between a solicitor and
client:
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[IPC Order PO-1931 / July 27, 2001]
… the test is whether the communication or document was made confidentially
for the purposes of legal advice. Those purposes have to be construed broadly.
Privilege obviously attaches to a document conveying legal advice from solicitor
to client and to a specific request from the client for such advice. But it does not
follow that all other communications between them lack privilege. In most
solicitor and client relationships, especially where a transaction involves
protracted dealings, advice may be required or appropriate on matters great or
small at various stages. There will be a continuum of communications and
meetings between the solicitor and client … Where information is passed by the
solicitor or client to the other as part of the continuum aimed at keeping both
informed so that advice may be sought and given as required, privilege will
attach. A letter from the client containing information may end with such words
as “please advise me what I should do.” But, even if it does not, there will
usually be implied in the relationship an overall expectation that the solicitor will
at each stage, whether asked specifically or not, tender appropriate advice.
Moreover, legal advice is not confined to telling the client the law; it must include
advice as to what should prudently and sensibly be done in the relevant legal
context.
(Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order
P1409)
Solicitor-client communication privilege has been found to apply to the legal advisor’s working
papers directly related to seeking, formulating or giving legal advice (Susan Hosiery Ltd. v.
Minister of National Revenue, [1969] 2 Ex. C.R. 27, cited in Order M-729).
Internal correspondence between Crown counsel
Although the Ministry did not make any specific submissions with respect to solicitor-client
communication privilege, from my review of the records, I find that Records 5, 216, 223, 232, 244,
271, 272, B92, B99 and B100, meet the solicitor-client communication privilege test as set out
above. These records consist of internal communications between Crown counsel, made for the
purpose of seeking, formulating and/or giving legal advice with respect to the various stages of the
appellant’s husband’s prosecution. Based on the nature of these records and the context in which
they were created, I am satisfied that this information was treated as confidential as between the
Crowns. Accordingly, I find that Records 5, 216, 223, 232, 244, 271, 272, B92, B99 and B100
qualify for exemption under the solicitor-client communications privilege component of section 19
of the Act and are, therefore, exempt from disclosure under section 49(a).
In addition, I find that records 25, 26, 30 - 33, 215, 231, 238, 240, 246, 248, 250, 254, B87 and
B88, which also consist of internal communications between Crown counsel, as well as their
handwritten notes, are also subject to the solicitor-client communication privilege. These records
were created in the course of responding to various letters from the appellant to the Crown
Attorney’s office and were made for the purpose of seeking, formulating and/or giving legal advice
regarding certain issues and concerns which were raised by the appellant with respect to her
husband’s prosecution. I am satisfied that these records also qualify for exemption under the
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[IPC Order PO-1931 / July 27, 2001]
solicitor-client communication privilege component of section 19 of the Act and are, therefore,
exempt from disclosure under section 49(a).
Because I have found that records 5 and B92 are exempt under section 19, it is not necessary for
me to address section 13(1) of the Act, as these are the only two records for which the Ministry
claimed this exemption. It is also not necessary for me to address the late raising of this exemption
to record 5.
Correspondence between Crown counsel and the OPP
In Order PO-1779, Assistant Commissioner Mitchinson commented on the question of whether the
relationship between Crown Attorney and the OPP can be that of a solicitor and client. He stated:
... In Order P-613, section 19 was not applied on the basis that there is no
solicitor-client relationship between Crown counsel and the OPP. However, in
my view, this interpretation is no longer supportable as a result of the recent
Supreme Court of Canada decision in R. v. Campbell, [1999] 1 S.C.R. 565. In
that case, the Court concluded that a solicitor-client relationship did exist between
counsel with the federal Department of Justice and the R.C.M.P. The decision
sees the R.C.M.P. as a “client department” of the Department of Justice and,
therefore, it is difficult to see how the same conclusion could not apply vis à vis
the Ministry of the Attorney General and the OPP. In my view, a solicitor-client
relationship exists between the OPP and Crown counsel.
I adopt the approach articulated by Assistant Commissioner Mitchinson for the purposes of the
present appeal. It is clear on the face of Record 226 that this record represents confidential
communications passing between the OPP and Crown counsel involving the giving and seeking of
legal advice with respect to the prosecution of the appellant’s husband. I have not been provided
with any evidence to indicate that the privilege in this document has been waived. Accordingly, I
find that Record 5 qualifies for exemption under section 19 and is, therefore, exempt from
disclosure under section 49(a).
Although there are other records which represent communications between the OPP and Crown
counsel within the records at issue, I find that none of them were made for the purpose of seeking,
formulating and/or giving legal advice. Although these records document various requests by
Crown counsel for certain records and/or information relating to the OPP investigation, as well as
the OPP’s response, in my view, these communications were not made for the purpose of giving or
seeking of legal advice. Therefore these records do not qualify for solicitor-client communication
privilege.
The remaining records and parts of records to which the Ministry has applied the section 19
exemption do not represent confidential communications between a solicitor and his or her client
and these records do not qualify for exemption under the solicitor-client communications portion
of section 19.
- 13 -
[IPC Order PO-1931 / July 27, 2001]
Litigation privilege
Introduction
In Order PO-1855, Assistant Commissioner Mitchinson reviewed the current state of the law with
respect to the concept of litigation privilege. He found that:
As far as the litigation privilege component of section 19 is concerned, the
Ontario Court of Appeal recently issued a judgement interpreting the doctrine of
litigation privilege (General Accident Assurance Co. v. Chrusz (1999), 45 O.R.
(3d) 321). I considered this case in Order MO-1337-I, and its application to the
scope of the litigation privilege component of section 19. In that order, I stated:
In General Accident, the majority of the Court of Appeal
questioned the “zone of privacy” approach and adopted a test
which requires that the “dominant purpose” for the creation of a
record must have been reasonably contemplated litigation in order
for it to qualify for litigation privilege ...
...
In Solicitor-Client Privilege in Canadian Law by Ronald D.
Manes and Michael P. Silver, (Butterworth’s: Toronto, 1993),
pages 93-94, the authors offer some assistance in applying the
dominant purpose test, as follows:
The “dominant purpose” test was enunciated [in
Waugh v. British Railways Board, [1979] 2 All E.R.
1169] as follows:
A document which was produced or
brought into existence either with the
dominant purpose of its author, or of the
person or authority under whose direction,
whether particular or general, it was
produced or brought into existence, of
using it or its contents in order to obtain
legal advice or to conduct or aid in the
conduct of litigation, at the time of its
production in reasonable prospect, should
be privileged and excluded from
inspection.
It is crucial to note that the “dominant purpose” can exist in the
mind of either the author or the person ordering the document’s
production, but it does not have to be both.
- 14 -
[IPC Order PO-1931 / July 27, 2001]
The test really consists of three elements, each of which must be
met. First, it must have been produced with contemplated
litigation in mind. Second, the document must have been produced
for the dominant purpose of receiving legal advice or as an aid to
the conduct of litigation - in other words for the dominant purpose
of contemplated litigation. Third, the prospect of litigation must be
reasonable - meaning that there is a reasonable contemplation of
litigation.
Thus, there must be more than a vague or general apprehension of
litigation.
Applying the direction of the Courts and experts in the area of
litigation privilege, in my view, a record must satisfy each of the
following requirements in order to meet the “dominant purpose”
test:
1. The record must have been created with existing or
contemplated litigation in mind.
2. The record must have been created for the dominant
purpose of existing or contemplated litigation.
3. If litigation had not been commenced when the record was
created, there must have been a reasonable contemplation
of litigation at that time, i.e. more than a vague or general
apprehension of litigation.
In applying this test, it is necessary to bear in mind the time sensitive nature of
this type of privilege, and the fact that, even if the dominant purpose for creating a
record was contemplated litigation, privilege only lasts as long as there is
reasonably contemplated or actual litigation.
Having reviewed all of the records that remain at issue for which the section 19 exemption is
claimed, I am satisfied that each was prepared or obtained for the dominant purpose of existing or
reasonably contemplated litigation. I am also satisfied that the majority of the records were
prepared or obtained with an intention that they be confidential in the course of the litigation. In
view of my findings below, it is not necessary for me to undertake a detailed analysis in this
regard.
Termination of litigation
Litigation privilege may be lost through termination of litigation or the absence of reasonably
contemplated litigation. In Order P-1551, Adjudicator Big Canoe stated:
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[IPC Order PO-1931 / July 27, 2001]
Litigation privilege ends with termination of the litigation for which the
documents were prepared or obtained [Boulianne v. Flynn, [1970] 3 O.R. 84 at
90 (Co. Ct.); Meaney v. Busby (1977), 15 O.R. (2d) 71 (H.C)]. The exception to
this rule is where the policy reasons underlying the privilege remain, despite the
end of the litigation. For example, privilege may be sustained in related litigation
involving the same subject matter in which the party asserting the privilege has an
interest [Carleton Condominium Corp. v. Shenkman Corp. (1977), 3 C.P.C. 211
(Ont. H.C.)]. In other words, the law will only give effect to the privilege while
the purpose for its recognition continues to be served. Unlike solicitor-client
communication privilege, the purpose of which is to protect against disclosures
which could have a chilling effect on the solicitor-client relationship, the purpose
of litigation privilege is to protect against disclosures which could have a chilling
effect on the lawyer’s preparation for the particular litigation, or any related
litigation arising out of the same subject matter.
In the same order, Adjudicator Big Canoe also commented on the distinction between “ordinary”
work product and “opinion” work product and the impact of this distinction in circumstances
where the litigation has ended:
Under the litigation privilege or work product rule, a distinction has been drawn
between “ordinary” work product (documents gathered from third parties, the
document itself or factual information) and “opinion” work product (counsel’s
mental impressions, conclusions, opinions or legal theories), with the latter
enjoying a heightened protection [R.J. Sharpe, “Claiming Privilege in the
Discovery Process,” Law Society of Upper Canada Special Lectures, 1984
(Richard De Boo publishers, 1984), pp. 175-177; In re Sealed Case, 676 F.2d 793
at 809-810 (U.S.C.A., Dist. Col., 1982); C.A.); Mancao v. Casino (1977), 17 O.R.
(2d) 458 (H.C.)].
As stated earlier, all litigation involving the Crown is now at an end regarding this matter.
Therefore, the rationale for litigation privilege is no longer present. Accordingly, sections 19 and
49(a) do not apply to exempt the records from disclosure. Also, having reviewed the records at
issue, I am satisfied that they do not contain any information that would qualify as “opinion” work
product, as defined above, and thus it is not necessary for me to consider whether some of the
information in the records is entitled to a “heightened” degree of protection.
As outlined above, the Ministry argues that the records deal with very sensitive matters, and that
their disclosure would inhibit future witnesses from coming forward and cooperating with the
Police and the Crown Attorney’s office. In Order P-1840, Adjudicator Laurel Cropley considered
similar submissions made by the Ministry, wherein she stated:
I do not accept the Ministry's concern about the disclosure of personal
information as a basis for finding that section 19 should apply to records
notwithstanding the termination of litigation. The protection of personal privacy
is clearly addressed in sections 21(1) and 49(b) of the Act. While this may be a
policy consideration in the dissemination of information as part of the Crown
- 16 -
[IPC Order PO-1931 / July 27, 2001]
disclosure process, it would be redundant to apply the same considerations under
both sections 19 and 21(1)/49(b) of the Act, particularly when the latter two
sections are specifically designed to address the very concerns raised by the
Ministry.
I agree with Adjudicator Cropley’s comments and adopt them for the purposes of this appeal. I will
address the protection of personal privacy of individuals other than the appellant as part of my
discussion of sections 21 and 49(b) below.
INFORMATION PUBLISHED OR AVAILABLE
The only records that remain at issue in this appeal, which were withheld by the Ministry pursuant
to section 22(a) of the Act, are the transcript of the pre-trial of September 20, 1996 (record 113,
consisting of 13 pages) and an Information (record pages 213-214). In her representations, the
appellant confirmed that she has in fact already obtained copies of both of these records from the
court reporter and the court respectively. The appellant questions, however, whether the transcript
that was provided to her by the court reporter is identical to the one obtained by the Crown
Attorney’s office from the court reporter. Similarly, the appellant believes that the copy of the
Information that exists within the Ministry’s records is different from the certified copy that she
received from the court.
I note, however, that the appellant is also already in possession of copies of both the pre-trial
transcript and the Information that exist within the Ministry’s records as a result of an access
request to the Ministry of the Solicitor General (Appeal PA-990402-1, Order P0-1882). In Order
PO-1882, Adjudicator Hale found that section 22(a) did not apply to the pre-trial transcript and
ordered that it be disclosed, given the difficulties that the appellant was encountering in obtaining
copies of this document from the court reporter. The appellant has also provided this office with a
copy of the Information that she is seeking from the Ministry. I have compared these two records
with the ones at issue in the current appeal and find that they are identical in content.
Previous orders of this office have commented on the usefulness of continuing an appeal in
circumstances where the appellant had obtained a copy of the record at issue through other
legitimate means. In Order M-271, the former Assistant Commissioner Irwin Glasberg made the
following general comments regarding this issue:
In the ordinary course of events, I would be extremely reluctant to apply the
resources of the Commissioner's office to decide an appeal where the appellant is
already in possession of the records at issue through legitimate means. In my
view, such an exercise would serve no useful purpose. In addition, appeals of this
nature consume the scarce resources of institutions and impede the ability of the
Commissioner's office to deal with the files of other appellants.
I agree with these comments. Given that the appellant is already in possession of both the pre-trial
transcript and the Information that she is seeking, in the circumstances of this case, I find that no
useful purpose would be served by proceeding to determine the issue of access to these records.
- 17 -
[IPC Order PO-1931 / July 27, 2001]
INVASION OF PRIVACY/DISCRETION TO REFUSE REQUESTER’S OWN
INFORMATION - SECTIONS 21/49(b)
The following records/portions of records remaining at issue contain the personal information of
the appellant and/or her husband only: 28, 38, 44, 45, 81, 84, 85, 91, 94, 98, 99, 114, 117-120, 140,
141, 144, 146, 148, 151-153, 159, 160, 172, 173, 192-194, 203, 217-225, 227-230, 239, 241-243,
245, 247, 249, 251-253, 255, 266, 300, 302, 309, 318, 319, 321, 323, 326-397, B18, B27, B75,
B89, B90, B91, B93-B98, B101, B102 and B103-B169. Accordingly, sections 21 and 49(b) which
are intended to protect the personal information of other individuals cannot apply to these records.
As the Ministry has not claimed any other exemptions for these records, I will order that they be
disclosed to the appellant.
The records remaining at issue, in whole or in part, contain the personal information of the
appellant and/or her husband, along with a number of other identifiable individuals.
Under section 49(b) of the Act, where a record contains the personal information of both the
appellant and other individuals and the Ministry determines that disclosure of the information
would constitute an unjustified invasion of another individual’s personal privacy, the Ministry has
the discretion to deny the requester access to that information.
Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal
information would result in an unjustified invasion of the personal privacy of the individual to
whom the information relates. Section 21(2) provides some criteria for the head to consider in
making this determination. Section 21(3) lists the types of information whose disclosure is
presumed to constitute an unjustified invasion of personal privacy. Once a presumption against
disclosure has been established, it cannot be rebutted by either one or a combination of the factors
set out in 21(2).
The only way in which a section 21(3) presumption can be overcome is if the personal information
at issue falls under section 21(4) of the Act or where a finding is made under section 23 of the Act
that there is a compelling public interest in disclosure of the information which clearly outweighs
the purpose of the section 23 exemption.
In this case the Ministry has cited the presumption in section 21(3)(b) and the consideration in
section 21(2)(f), in conjunction with section 49(b). These section read:
49. A head may refuse to disclose to the individual to whom the information
relates personal information,
(b) where the disclosure would constitute an unjustified invasion of
another individual's personal privacy;
21. (2) A head, in determining whether a disclosure of personal information
constitutes an unjustified invasion of personal privacy, shall consider all the
relevant circumstances, including whether,
- 18 -
[IPC Order PO-1931 / July 27, 2001]
(f) the personal information is highly sensitive;
(3) A disclosure of personal information is presumed to constitute an
unjustified invasion of personal privacy where the personal information,
(b) was compiled and is identifiable as part of an investigation into a
possible violation of law, except to the extent that disclosure is
necessary to prosecute the violation or to continue the investigation;
The Ministry submits that the section 21(3)(b) presumption applies to certain records, as they were
compiled and are identifiable as part of the police investigation of the appellant’s husband. This
investigation ultimately resulted in the appellant’s husband being charged with Mischief, pursuant
to section 430(1)(d) of the Criminal Code. These records include witness lists, interview reports,
incident reports, witness statements, police notes, occurrence reports, synopses and
correspondence.
With respect to the records to which section 21(3) presumption does not apply, the Ministry’s
position is that the release of these records would still constitute an unjustified invasion of the
personal privacy of other individuals, as they concern the involvement of these individuals in a
criminal case and as such contain sensitive information within the meaning of section 21(2)(f).
The appellant submits that the disclosure of the records at issue is relevant to a fair determination
of her rights in proceedings which she is contemplating before the OCCPS and the Ontario Court
of Appeal concerning the “‘unusual circumstances’ of the investigation and prosecution”. This
submission refers to the consideration listed in section 21(2)(d) of the Act, which reads as follows:
A head, in determining whether a disclosure of personal information constitutes
an unjustified invasion of personal privacy, shall consider all the relevant
circumstances, including whether,
the personal information is relevant to a fair determination of rights
affecting the person who made the request;
Based on my review of the records remaining at issue, I am satisfied that the information in
Records 82, 83, 116 (pages 5, 6, 16-23), 121-139, 142, 143, 145, 147, 149, 150, 154-158, 162-164,
174-191, 195-202, 204-212, 233 and B62 was compiled and is identifiable as part of an
investigation into a possible violation of law, namely the Criminal Code. Therefore, the section
21(3)(b) presumption of an unjustified invasion of personal privacy applies to these records and/or
portions of records containing the personal information of the appellant and/or her husband
combined with the personal information of other individuals. I also find that section 14(4) is not
applicable in the circumstances of this appeal. Accordingly, I find that disclosure of this
information would be an unjustified invasion of personal privacy and it is exempt under section
49(b). I have highlighted in yellow those records and portions of the records which are subject to
the presumption in section 21(3)(b) and which are exempt from disclosure under section 49(b).
- 19 -
[IPC Order PO-1931 / July 27, 2001]
Records 115, 116 (pages 1-4, 7-15), 161, 234, 256-265, 267-270, 273-299, 301, 303-308, 310-317,
320, 322, 324 and 325, however, were compiled by the OPP or the Crown Attorney’s office
following the completion of the investigation. It cannot be said that these records were compiled
or form part of the investigation and as such, cannot be subject to the presumption in section
21(3)(b). However, given the nature of the information in these records, in my view, the factor
favouring privacy protection in section 21(2)(f) (the information is highly sensitive) is relevant.
In Order PO-1882, wherein some of the records dealt with the same subject matter as the records at
issue in the current appeal, Adjudicator Hale considered the events described in the records and the
relationships between the appellant, her husband and the other identifiable individuals.
Adjudicator Hale concluded that the disclosure of the information contained in the records which
were created following the conclusion of the OPP investigations could reasonably be expected to
cause the identifiable individuals excessive personal distress. Similar to the findings made by
Adjudicator Hale, I find that the factor favoring privacy protection weighs heavily in favour of
non-disclosure of the records at issue in the current appeal.
As indicated above, the appellant submits that the disclosure of the records at issue is relevant to a
fair determination of her rights in proceedings which she is contemplating before the OCCPS and
the Ontario Court of Appeal. I am not persuaded, however, that there is a sufficient link between
these contemplated proceedings and the contents of the records which remain at issue to establish
the application of section 21(2)(d). In my view, the disclosure of the information contained in
these post-investigation records would be of little or no assistance to the appellant in pursuing her
remedies in the forum described above as these records relate primarily to the nature of the
complaints made by various individuals against the appellant and her husband. Therefore, I find
that section 21(2)(d) does not apply in the circumstances of this appeal.
I find, therefore, that the only relevant consideration in the balancing of the appellant’s access
rights against the privacy interests of the other identifiable individuals contained in these records
favour the protection of privacy. Accordingly, records and/or portions of Records115, 116 (pages
1-4, 7-15), 161, 234, 256-265, 267-270, 273-299, 301, 303-308, 310-317, 320, 322, 324 and 325,
are also exempt from disclosure under section 49(b). I have highlighted in blue those portions of
the records which are exempt from disclosure.
A number of previous orders (Orders M-384, M-444, M-1093, M-1109, P-1457 and P-1618, for
example) have held that the withholding of personal information relating to an individual other
than the requester, in circumstances where the person requesting the information originally
supplied the information, would lead to an absurd result, and disclosure of this information would
not result in an unjustified invasion of personal privacy. I find that the rationale for this conclusion
is applicable to certain portions of the withheld information in the records which describe
information received by the OPP and the Crown Attorney’s office directly from the appellant.
Accordingly, I find that this information is not exempt under section 49(b).
PUBLIC INTEREST IN DISCLOSURE
Section 23 of the Act reads:
- 20 -
[IPC Order PO-1931 / July 27, 2001]
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 20.1
and 21 does not apply where a compelling public interest in the disclosure of the
record clearly outweighs the purpose of the exemption [emphasis added].
The solicitor-client privilege exemption provided by section 19 of the Act is not one of the sections
mentioned in section 23. Accordingly, section 23 cannot apply to override this exemption. Section
23 can, however, apply to override section 49(b) in conjunction with section 21 [Order P-541] and
I will consider this below.
In order for the section 23 "public interest override" to apply, two requirements must be met: (i)
there must be a compelling public interest in disclosure; and (ii) this compelling public interest
must clearly outweigh the purpose of the exemption (Order P-1398, upheld on judicial review in
Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner), [1999] O.J.
No. 484 (C.A.), leave to appeal refused [1999] S.C.C.A. No. 134 (note).
If a compelling public interest is established, it must then be balanced against the purpose of any
exemptions which have been found to apply. Section 23 recognizes that each of the exemptions
listed, while serving to protect valid interests, must yield on occasion to the public interest in
access to information which has been requested. An important consideration in this balance is the
extent to which denying access to the information is consistent with the purpose of the exemption
[Order P-1398, cited above].
The two requirements contained in section 23 must be satisfied in order to invoke the application
of the so-called "public interest override": there must be a compelling public interest in disclosure;
and this compelling public interest must clearly outweigh the purpose of the exemption, as distinct
from the value of disclosure of the particular record in question [Order 24].
The appellant indicates that she believes that a compelling public interest exists in the disclosure of
the records at issue in this appeal. The appellant's representations with respect to section 23,
however, do not relate specifically to the records at issue in this appeal, but rather deal with the
public’s “ongoing and compelling concern with [the] criminal justice system”. With her
submissions, the appellant included various news articles to show that there is “an ongoing and
compelling interest in problems in the criminal justice system” and “in identifying and correcting
these problems”.
Although in my view, there clearly is a public interest in issues relating to criminal justice, I am
not persuaded that there is a compelling public interest in disclosure of the records/portions of
records which I have found to qualify for exemption under section 49(b) in conjunction with
section 21. Nor am I satisfied that any public interest that may exist would clearly outweigh the
purpose of this exemption. Therefore, I find that section 23 does not apply in the circumstances of
this appeal.
REASONABLENESS OF SEARCH
In appeals involving a claim that further responsive records exist, as is the case in this appeal, the
issue to be decided is whether the Ministry has conducted a reasonable search for the records as
- 21 -
[IPC Order PO-1931 / July 27, 2001]
required by section 24 of the Act. The Act does not require the Ministry to prove with absolute
certainty that further records do not exist. In order to properly discharge its obligations under the
Act, the Ministry must establish that it has made a reasonable effort to identify and locate records
responsive to the request (Order PO-1837). Although an appellant will rarely be in a position to
indicate precisely which records have not been identified in the Ministry’s response to a request,
the appellant must, nevertheless, provide a reasonable basis for concluding that such records exist.
The appellant believes that records exist, in addition to those identified by the Ministry as
responsive to her request. The appellant has also identified a number of records/parts of records as
either missing or containing illegible information. The appellant also requested that the Ministry
identify and/or confirm the existence of certain records within the records that remain at issue in
this appeal.
The Ministry provided detailed representations concerning the searches that were undertaken in
response to the appellant’s request. The Ministry explained that the senior administrative secretary
of the Crown Attorney’s office, as well as a case management officer conducted a search for
responsive records, which included searching the office of the Crown Attorney as well as the
courthouse vault, as the file had been “closed” by the time the appellant had filed her request. The
Ministry also searched the file storage area for the Crown Law Office - Criminal in Toronto
relating to the appellant’s husband’s appeal.
The Ministry also provided detailed explanations in response to the appellant’s various concerns,
which I will outline below.
Missing 1998 records
The appellant believes that certain records relating to a charge that was relaid against her husband
on June 7, 1988 are missing, and questions whether the Ministry has undertaken a search for these
records. With her representations the appellant attached an Information that was sworn on June 7,
1998. The appellant also attached a letter from her lawyer in which he documents various
conversations with the Crown’s office. Finally, the appellant believes that the Ministry should
have records that document a communication from the OPP to the Crown concerning the
appellants selling their home.
In response to the appellant’s submissions on this issue, the Ministry states that the “missing 1998
records”, described by the appellant are not missing, but rather the Ministry is claiming exemptions
in respect of these records.
Having reviewed the records at issue in this appeal, I am satisfied that the Ministry has in fact
identified a number of records relating to the June 7, 1988 charge against the appellant’s husband,
as described by the appellant. Based on the information provided by the Ministry, I am also
satisfied that it has conducted a reasonable search for these records.
- 22 -
[IPC Order PO-1931 / July 27, 2001]
Other Missing Records
The appellant believes that certain pictures and an OPP public complaints file were used in
connection with the appellant’s husband’s prosecution, but were never disclosed to him during
those proceedings. The appellant feels that such records may have been “removed from the file
and returned to the supplier”. The appellant requests that the Ministry question the Crown
Attorneys involved in this case to determine if such items were used by the Crown, but not retained
in the file.
In response to the appellant’s representations, the Ministry submits that the appellant is seeking
answers to questions that would require the creation of a record, rather than seeking access to
records, and that it is under no obligation under the Act to create records. As far as the OPP Public
Complaint File is concerned, the Ministry explains that these records were addressed as part of a
previous request filed by the appellant, wherein her request was redirected to the OPP.
It is evident from the appellant’s submissions, that she has a number of concerns regarding her
husband’s prosecution and feels that the Crown did not provide her husband with complete
disclosure during those proceedings. In my view, however, the appellant is clearly seeking
answers from the Ministry in this regard, which may require the creation of a record. I agree that
the Ministry is under no obligation, pursuant to the Act, to create records in these circumstances.
Based on the information provided by the Ministry, I am also satisfied that, in the circumstances of
this appeal, the Ministry’s search for records responsive to this part of the appellant’s request was
reasonable.
Additional matters
Record 109
The appellant indicated that Record 109 has not been released and is not listed by the Ministry as
an unreleased record. The Ministry explained that it understands that this record has been
previously disclosed, but is agreeable to providing the appellant with another copy. Since it does
not appear that the Ministry has done this yet, I will include an order provision requiring the
Ministry to provide the appellant with a copy of this record.
Records 42 and 61; B31 and B80
The appellant indicated that the information contained in records 42 and 61, as well as B31 and
B80, is either incomplete or illegible. The Ministry confirms that some illegible information
appears in Record 42. With its representations, the Ministry produced another photocopy of this
record on 8 ½" by 14" paper, as requested by the appellant. The Ministry explains that this is the
best possible copy. The Ministry also produced a more legible copy of Records 61, B31 and B80
and advised that the handwritten notation at the top of record B31 reads “R v. [name of appellant’s
husband] and that the handwritten notation contained inside two rectangular boxes on Record B80
appears to read “Apr 15/98” and “deadline” respectively. Once again, I will order the Ministry to
disclose these copies of the records to the appellant.
- 23 -
[IPC Order PO-1931 / July 27, 2001]
Records 3 - 13
The appellant submits that the Ministry has not provided certain fax information located at the top
of pages 3-13. The Ministry explained that it is agreeable to releasing further copies of Records 3
- 4 and 6-13 that include the severed information relating to the fax transmittal. Accordingly, I will
order the Ministry to do so. Record 5, however, was withheld by the Ministry pursuant to sections
49(a) and (b), in conjunction with sections 13, 19 and 21, and was addressed above.
Fingerprints or “mug shots”
In her representations, the appellant requested that if her husband’s fingerprints or “mug shots” are
present in the records maintained by the Ministry that she be so informed so that she can take
action to have them destroyed. In its reply submissions, the Ministry confirmed that no records
respecting the appellant’s fingerprints or “mug shots” are present in the records.
Probation records
Also in her representations, the appellant asked that if any probation records relating to her
husband exist within the records remaining at issue in this appeal, that such records be identified,
so that the appellant may notify Probation Services. In response, the Ministry confirmed that
records relating to the appellant’s husband’s probation order are located in the records (Records
B63 - B65) and advised these records were disclosed to the appellant with the Ministry’s original
decision letter.
Police investigation and witness interviews after August 1996
Finally, the appellant requested that if there are records relating to a police investigation and
witness interviews conducted after August 1996 that these be identified. The appellant explained
that she is not requesting that the contents of these records be disclosed, but that “the existence of
investigation records collected after August 1996 be confirmed or denied”. The appellant further
states that she has “long believed that witness statements were taken by OPP [named senior
constable] and not disclosed to us”. The Ministry provided the following response:
The appellant claims that the Crown did not provide full disclosure and asks for the
identification of records relating to a police investigation and witness interviews
conducted after August, 1996. The Ministry confirms that such records exist. This
information can be found in the records disclosed to the Appellant in the Ministry’s
original decision letter dated September 10, 1999. The records that identify this
information are as follows:
> Records 76 to 77
A letter written by [a named Crown Attorney] to [appellant’s husband],
dated January 8, 1997, referring to further enclosed disclosure. In paragraph
8 of that letter [a named Crown Attorney] states that [a named individual’s]
statement was prepared on October 7, 1996 [original emphasis].
- 24 -
[IPC Order PO-1931 / July 27, 2001]
> Records 78 to 80
A letter written by [a named Crown Attorney] to [appellant’s husband],
dated February 21, 1997, addressing disclosure concerns and referring to
further enclosed disclosure. In paragraph 14 of that letter [a named Crown
Attorney] states “I am providing you with a copy of the interview with [a
named individual], dated September 19th, 1996" [original emphasis]. In
paragraph 16 of that letter, [a named Crown Attorney] states “Also please
find attached the incident report of September 23rd, 1996 [original
emphasis]. [A named Crown Attorney] further advises, in paragraph 19 of
the letter, that “There is no further additional material in the possession of
the Crown that is being held back. You have complete disclosure of the
Crown witnesses and their statements”.
> Records 110 to 111
A letter written by [a named Crown Attorney] to [appellant’s husband],
dated April 28, 1997. In paragraph 3 of that letter, [a named Crown
Attorney] reiterates that all relevant information in the possession of the
Crown has been disclosed.
> Records 95 to 96
A letter written by [a named Crown Attorney] to [appellant’s husband] and
the Appellant, dated July 4, 1997. In paragraph 1 of that letter, [a named
Crown Attorney] states that “... I am assured and have in fact instructed the
prosecution attorney to disclose all relevant information to you. [A named
Crown Attorney] assures me that this has been done”.
Based on the Ministry’s submissions and the detailed responses to the appellant’s various concerns,
I am satisfied that the Ministry has made a reasonable effort to identify and locate the records
responsive to the request and I dismiss this portion of the appellant’s appeal.
ORDER:
1. I uphold the Ministry’s decision to deny access to Records 5, 25, 26, 30-33, 82, 83, 113,
121-139, 156, 174-187, 213-216, 223, 226, 231, 232, 238, 240, 244, 246, 248, 250, 254,
256-259, 261-265, 267-269, 271, 272, 286-298, 303-308, 310-317, 322, 324, B87, B88,
B92, B99, B100, in total, as well as the highlighted portions of the Records 115, 116, 142,
143, 145, 147, 149, 150, 154, 155, 157-158, 161-164, 188-191, 195-202, 204-212, 233,
234, 260, 270, 273-285, 299, 301, 320, 325 and B62, which I have provided to the
Ministry’s Freedom of Information and Protection of Privacy Co-ordinator with a copy of
this order.
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[IPC Order PO-1931 / July 27, 2001]
2. I order the Ministry to disclose to the appellant Records 3, 4, 16-13, 28, 38, 42, 44, 45, 61,
81, 84, 85, 91, 94, 98, 99, 109, 114, 117-120, 140, 141, 144, 146, 148, 151-153, 159, 160,
172, 173, 192-194, 203, 217-222, 224, 225, 227-230, 239, 241-245, 247, 249, 251-253,
255, 266, 300, 302, 309, 318, 319, 321, 323, 326-397, B18, B27, B31, B75, B80, B89, B90,
B91, B93-B98, B101-B169, as well as those portions of Records 115, 116, 142-143, 145,
147, 149-150, 154-155, 157-158, 161-164, 188-191, 195-202, 204-212, 233, 234, 260, 270,
273-285, 299, 301, 320, 325 and B62, which are not highlighted by delivering a copy to her
by August 28, 2001 but no later than September 5, 2001.
3. The search for responsive records conducted by the Ministry was reasonable and I dismiss
this part of the appeal.
4. In order to verify compliance with this order, I reserve the right to require the Ministry to
provide me with a copy of the records disclosed to the appellant pursuant to Provision 2.
Original Signed By: _________________________
Irena Pascoe July 27, 2001
Adjudicator
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Legislation
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Signed by
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Irena Pascoe
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Published
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Jul 27, 2001
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Type
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Order
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Judicial Review
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Institution's application abandoned October 30, 2003
Attorney General of Ontario v. Irena Pascoe, Adjudicator and Jane Doe, Requester, Tor. Doc. 560/2001 (Div. Ct.)
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