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Document
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P-948
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File #
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P-9400750
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Institution/HIC
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Ministry of the Solicitor General and Correctional Services
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant, a newspaper reporter, submitted a request to the Ministry of the Solicitor General and Correctional Services (the Ministry) for access to records pertaining to the overall cost of a police "joint-forces" team to investigate child pornography and exploitation in Ontario, as well as information pertaining to the province's financial contribution towards this project. Specifically, the request was for access to the following: (1) the overall figure for the estimated cost of the one year, joint forces investigation, including associated personnel costs; (2) the overall figure for the provincial government's contribution to the project, and a breakdown of its constituent amounts for equipment and other forms of assistance to investigators; (3) all Ministry documents relating to the approval of the project, and a copy of the proposal for the joint forces investigation submitted by the Chief of the London Police. The Ministry located some of the financial information referred to in items 1 and 2, above, which was summarized in an administrative memorandum sent to the Ministry's Freedom of Information and Privacy office. The Ministry decided to deny access to this information. The Ministry relies on the following exemptions in the Act as the basis for this denial of access: law enforcement - section 14(1)(a) right to fair trial - section 14(1)(f). The appellant filed an appeal from the Ministry's denial of access. During the appeal, the issue of whether the Ministry had conducted an adequate search for records also arose. A Notice of Inquiry was sent to the appellant and the Ministry. Representations were received from both parties. In its representations, which are dated May 24, 1995, the Ministry indicates that it has located additional records and that it will make an access decision regarding them within two weeks. To date, I have not been advised that any such decision has been issued. Given that additional records have been located, I will not deal with the issue of the adequacy of the Ministry's search in this order. However, if, once the appellant receives the Ministry's decision regarding the additional records, the appellant still believes that additional records exist, the appellant will be able to appeal from the new decision on that basis (as well as any other ground permitted by the Act ). Accordingly, the issues to be decided in this appeal are: (1) whether the exemptions provided by sections 14(1)(a) and 14(1)(f) apply, and (2) how to deal with the additional records discovered by the Ministry. DISCUSSION: LAW ENFORCEMENT/RIGHT TO FAIR TRIAL Sections 14(1)(a) and (f) of the Act state as follows: A head may refuse to disclose a record where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; (f) deprive a person of the right to a fair trial or impartial adjudication. The Ministry's arguments under both section 14(1)(a) and 14(1)(f) relate to concerns about individuals charged as a result of this investigation being able to have fair and impartial trials. With respect to section 14(1)(a), the Ministry submits that "... prejudice to the fairness of a trial clearly constitutes interference with a law enforcement matter". Although this appears to relate primarily to section 14(1)(f), I will also consider whether the Ministry has established the application of section 14(1)(a). The Meaning of "Could Reasonably Be Expected To" The Ministry has made extensive submissions on the meaning of the phrase "could reasonably be expected to" in the preamble to this section. The Ministry disagrees with several previous interpretations of this phrase, as set out in past orders of this agency. This phrase modifies both exemptions at issue here, namely sections 14(1)(a) and (f). For instance, rather than interpreting "could reasonably be expected to" as requiring a reasonable expectation of probable harm, the Ministry argues that a reasonable expectation of possible harm will be sufficient. The Ministry also submits that the common law "sub judice" rule means that courts are concerned to avoid the premature disclosure of information which could affect the fairness of a trial. However, the Ministry also refers me to a passage in Order 188, where then Assistant Commissioner Tom Wright interpreted "could reasonably be expected to" as requiring that the expectation of harm not be "... fanciful, imaginary or contrived, but one that is based on reason". In stating its disagreement with several other interpretations of this phrase, the Ministry states that this passage in Order 188 is "... a more faithful interpretation of `could reasonably be expected to'". As in this appeal, Order 188 considered the meaning of these words in the context of the preamble to section 14(1). Without accepting the Ministry's submissions concerning other interpretations of the phrase "could reasonably be expected to", I am prepared to decide this case based upon the interpretation just cited from Order 188. In my view, the requirement in Order 188 that the expectation of harm must be "based on reason" means that there must be some logical connection between disclosure and the potential harm which the Ministry seeks to avoid by applying the exemption. The Canadian Charter of Rights and Freedoms The Ministry's representations state that [t]he overriding factor supporting the Ministry's decision to exercise its discretion to refuse access to the responsive records is its determination to safeguard the Charter right to a fair trial of individuals who may have been charged as a result of this investigation, as well as society's interest in conducting a fair trial. The Ministry submits that, with respect to section 14(1)(f), the right to a fair trial under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms ought to be considered. The Ministry states that "... s. 14(1)(f) must be interpreted so as to ensure that the accused's Charter right is protected from any reasonable possibility of harm".
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Legislation
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Subject Index
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Signed by
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John Higgins
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Published
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Jun 30, 1995
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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