Is Discretion the Last Refuge of Scoundrels? A Comment on Criminal Lawyers’ Assn v. Ontario (Ministry of Public Safety and Security)
Criminal Law Quarterly, Vol. 55, p. 323, 2009
22 Pages Posted: 20 Aug 2011
Date Written: 2009
Is access to information best left to a set of clearly expressed statutory rules, the well-reasoned discretion of information and privacy decision-makers or the court's interpretation of overarching constitutional principles? This article explores the desirability of each of these possibilities in the context of Criminal Lawyers' Assn. v. Ontario (Ministry of Public Safety and Security) and argues that many of the constitutional arguments presented both at trial and at the Court of Appeal misunderstand the proper significance of the fact that both s. 14 and s. 19 are discretionary exemptions.
There are several implications to this argument. First, it suggests that, contrary to the Ontario Court of Appeal holding, constitutional argument is not required to compel the consideration of the public interest. Second, even if one can successfully make the argument that the failure to extend the public interest override to these exemptions is a constitutional failure, the s.1 argument is much more difficult than the Ontario Court of Appeal suggests. Third, although this argument seems to undercut the radical potential of finding a constitutionally entrenched right of access to information, we suggest that judicial review of discretion has the potential to guide and, where appropriate, constrain government action under FIPPA, and related access statutes, with greater consistency and effectiveness than constitutional review would permit. Finally, this discussion of discretion points to a different law reform agenda regarding the design of administrative procedures vis-à-vis access to information that will properly discipline its exercise outside of the review process.
Keywords: Access to Information, Criminal Laywers Assn. v. Ontario, Ministry of Public Safety and Security, Constitutional Argument and Public Interest, FIPPA, Administrative Law and Access to Information
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