Social Policy in Ontario

OTTAWA — The Supreme Court of Canada refused on Thursday to elevate public access to government information to a constitutional right.

In a unanimous 7-0 decision, the court concluded that the freedom of expression protection in the Charter of Rights does not guarantee “access to all documents in government hands.”

The ruling overturns a decision in the Ontario Court of Appeal.

“Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society,” wrote Chief Justice Beverley McLachlin and Justice Rosalie Abella.

“Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.”

The ruling is a defeat for the Criminal Lawyers Association, which unsuccessfully argued that access-to-information laws, which permit the public to see documents that the state seeks to keep secret, are so restrictive that they violate freedom of expression.

The massive legal challenge drew more than one dozen interveners and the court had been considering its decision for 18 months, making it the longest-running Supreme Court Appeal in many years. The hearing was held in December 2008.

The Ontario government succeeded in keeping the constitutional door closed.

In a court submission, it urged the court to consider that restricted access to government information “is part of our history and our constitutional tradition”and “the Canadian charter was not intended to turn this state of affairs on its head.”

The ruling comes at a time when governments face growing criticism for their inner workings being shrouded in secrecy amid toothless access laws, which are under fire for containing so many exemptions that they effectively block the release of information.

The federal government and six provinces sided with Ontario, urging the judges to show restraint when deciding whether the public has a constitutional entitlement to open government as part of the Charter of Rights guarantee to freedom of expression.

Civil libertarians, journalists and access-to-information commissioners intervened on behalf of the lawyers association, arguing that the “right to know” is now recognized in the constitutions of dozens of countries and that siding with the government would put Canada out of sync with international norms.

The appeal court had ordered the release of a police report on a botched murder investigation into the 1983 death of reputed underworld gangster Dominic Racco.

First-degree murder charges against Mr. Racco’s alleged assailants were stayed in 1997 by a judge who chastised police and prosecutors for their abusive conduct.

The Ontario Provincial Police, which was asked to review the conduct of investigators, issued a terse news release nine months later clearing the officers in question of obstruction of justice.

The Criminal Lawyers Association sought access to the police records in the conduct probe, but it was denied under Ontario’s access-to-information law, which contains an exemption on law enforcement information.

Canwest News Service