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Document
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M-634
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Institution/HIC
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York Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: The York Regional Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request sought access to information relating to an investigation which led to alleged sexual assault charges being laid against the requesters. The Police identified numerous records and granted partial access. The requesters appealed the decision to deny access to the remaining records. The records relate to a police investigation of the appellants who were charged with the sexual assault of their autistic son. The son is now of the age of majority. These charges were subsequently withdrawn and the parties are now involved in civil litigation proceedings. The civil suit is undertaken by the appellants, both on their own behalf and on behalf of the son, against various parties including the Police. During mediation, the request was narrowed to include only those records which relate directly to the investigation. The Police rely on the following exemptions to deny access to the records: solicitor-client privilege - section 12 invasion of privacy - sections 14(1) and 38(b) A Notice of Inquiry was provided to the appellants and the Police. In their representations, the Police raised the possible application of section 54(b) of the Act which deals with the right of access by committee. A supplementary Notice of Inquiry inviting representations on this issue was sent to the parties. Additional representations were received from the parties. A Notice of Inquiry was also provided to individuals referred to in the records and the Ministry of the Attorney General (the Ministry). Representations were received from the Ministry and some of the individuals notified. In his representations, counsel for the appellants indicated that access has been obtained to an assessment report withheld by the Police. The report, being pages FIO 437-448 in the index provided by the Police, is no longer at issue. The records that remain at issue in this appeal are listed in Appendix "A" to this order. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE The Police have withheld access to Records 1, 2, 5, 6, 7 and 8 on the basis of section 12 of the Act . Before I begin my discussion, I wish to address several matters raised by the Police in their representations. In their representations, the Police submit that the confidentiality provision found in section 67(1) of the provincial Freedom of Information and Protection of Privacy Act (the provincial Act ) "interfaces" with the confidentiality of the solicitor-client privilege in section 19 in that same statute. The Police state that similarly, section 12 of the Act "must be examined in conjunction with section 53(1) of the Act ". The Ministry has made no similar argument, and makes its representations on the basis that section 12 of the Act applies. There is nothing in the legislation that provides for sections 19 and 67(1) in the provincial Act to be read together and similarly, nothing in the Act vis-a-vis sections 12 and 53(1). I fail to see the connection between the confidentiality provisions in sections 53(1) of the Act and 67(1) of the provincial Act and the solicitor-client privilege exemptions in these two statutes (sections 12 and 19 respectively). Section 19 of the provincial Act is not one of the confidentiality provisions referred to in section 53 of the Act . The confidentiality provisions in both the Act and the provincial Act clearly refer to confidentiality provisions in legislation other than the Act and the provincial Act . In my view, this appeal falls to be decided under section 12 of the Act . The Police then submit that it is unfair that the appellants could receive access to a record under the Act when the same record may be properly exempt under the equivalent section of the provincial Act . Section 19 of the provincial Act is worded differently from section 12 of the Act in that the provincial Act refers to "Crown counsel" whereas the Act refers to "counsel employed or retained by an institution". Because the solicitor-client exemption is worded differently and necessitates a different interpretation, the Police suggest that the relevant sections under the provincial and the municipal legislation should be read in tandem. The provincial and municipal Acts are two separate pieces of legislation. It is worth noting that the provincial Act was not amended to extend coverage to municipal institutions, but rather a separate statute was enacted to bring municipal institutions within the ambit of freedom of information and privacy legislation. While the majority of the sections are in concordance and it is helpful to refer to the Act when interpreting the provincial Act and vice-versa, there are some distinct differences in wording between the two pieces of legislation, as is clearly illustrated by sections 12 and 19 in the present case. Therefore, in considering the application of section 12 of the Act to the records, I am bound by the wording in the legislation and I interpret it on the basis of a plain reading of the Act . The Police claim that Records 1, 2, 5, 6, 7 and 8 are exempt from disclosure on the basis of the solicitor-client privilege provided by the discretionary exemption in section 12 of the Act . The Ministry supports the Police's application of the exemption to these records. Records 1 and 2 are memoranda from a Crown attorney to the investigating police officer. Records 5, 6, 7 and 8 are notes and a report by a Crown attorney. All of the records relate to the police investigation and resulting charges of alleged sexual assault against the appellants. The position of this office with respect to the relationship between the Police and a Crown attorney is clearly set out in Order M-52. In that order, Commissioner Tom Wright determined that the relationship between the Police and a Crown attorney is not that of solicitor and client as the Police are not the clients of the Crown attorney. The Ministry's representations do not include any evidence on this point. The Police concede that there is no solicitor-client relationship between the Police and a Crown attorney. I agree. Section 12 consists of two branches, which provide the Police with the
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Legislation
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MFIPPA
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14(2)(d)
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14(3)(a)
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54(b)
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Section 12
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Subject Index
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Published
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Oct 30, 1995
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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