Taking One Step Forward, Preventing Two Steps Back: Applying Criminal Lawyers’ Association to Invalidate Extreme Legislative Restrictions on Access to Government Information

Abstract

In 2015, the Harper federal government used an omnibus budget bill to retroactively restrict the rights of Canadians to access information concerning the federal Long-gun Registry and potentially illegal actions taken to destroy Registry records contrary to the provisions of the federal Access to Information Act. This retroactive legislative restriction of access to information rights is just the most recent example of a disturbing trend of democratic governments attempting to claw back existing access rights and thereby take 'two steps back' after having taken important steps forward along the road to greater transparency. This trend is an important reminder of the importance of constitutional protection of the right to access government information.

This article revisits the Supreme Court's 2010 decision in the Criminal Lawyers' Association (CLA) case in order to explore how the constitutional protection of access to information may be applied to prevent legislatures from taking 'two steps back' along the road to transparency by protecting against extreme limitations of access rights. Part II provides a brief discussion of several examples of regressive legislative action by a number of governments seeking to restrict existing rights of access to information and an outline of the retroactive elimination of access rights imposed through the amendments to the Ending the Long-gun Registry Act (ELRA) that were passed as part of the Harper government's omnibus budget implementation legislation in 2015. Part III provides a detailed discussion of the CLA case, including a critique of the approach adopted by the Court. Finally, in Part IV, I demonstrate how the decision in CLA may be applied to invalidate the Harper government's amendments to the ELRA on constitutional grounds.

Keywords: access to information; freedom of information; constitution; charter of rights and freedoms; freedom of expression; freedom of speech; Canada