Tracy Tyler
A battle for a secret OPP report into a botched murder case reaches the Supreme Court of Canada today and the result will determine, perhaps forever, whether Canadians have a constitutional right to government-held information.
The case goes back to the murder of reputed
The two men charged in the slaying, Hamilton's
Court and Monaghan were connected to the Hamilton-based Musitano crime family and were convicted of various offences for planning and facilitating the slaying. It's believed Racco, a cocaine addict, was murdered because he owed the Musitanos a large chunk of cash for drugs.
The OPP, which conducted its own investigation, later contradicted the court ruling, issuing a terse news release exonerating Halton and Hamilton police. But its 318-page report has remained secret for more than 10 years.And it did not in any way change the finding of police misconduct.
Attempts to get the report under
Now, a saga that began in the gritty world of two alleged hit men has shifted to a crucial constitutional question: How far does freedom of expression go?
Does it simply mean Canadians have a right to speak out? Or does it encompass much more, including giving Canadians the right to obtain information held by governments so they can form opinions on issues of the day?
Freedom of expression, as guaranteed by the Charter of Rights and Freedoms, "is not about allowing vocal chords to vibrate and make noise," association lawyer David Stratas and a team of constitutional experts say in their written argument.
"It is about protecting and promoting the free and vibrant circulation of communications that is necessary to sustain and enhance democracy," argues the association, which is supported by the Canadian Newspaper Association (a group that includes the Star) and other media groups intervening in the appeal.
Under attack in the case is a provision in Ontario's Freedom of Information and Protection of Privacy Act that allows otherwise confidential documents to be disclosed when there's a compelling public interest.
The provision doesn't apply to law enforcement documents, which prevented the association from getting the report, even though the province's assistant privacy commissioner said he would be hard-pressed to find a document of greater interest to citizens.
The association lost 3-0 in the
The association said it was the first time a secrecy provision in a North American freedom of information law had been successfully challenged.
Now governments across the country are fighting back, leaning heavily on the dissenting judgment of appeal court Justice Russell Juriansz, who said the Charter's freedom of expression guarantee doesn't oblige governments to disclose information.
Picking up on his dissent, Dan Guttman and Sophie Nunnelley, lawyers for
But Stratas argues that resorting to what the constitution's framers intended runs counter to "the most basic principles" of Canadian constitutional interpretation – that the Charter is a "living tree" that grows and adapts to realities of modern life.
Politicians rejected other Charter protections that have since been recognized by the courts, including sexual orientation as a ground of discrimination, he said.
Lawyers Paul Schabas and Ryder Gilliland, representing media groups, note that many countries already have constitutional provisions recognizing access to information as a component of freedom of expression, including
"It is time