ACCESS TO JUSTICE - News - Mixed signals from courts on openness

Mixed signals from courts on openness

May 26, 2007 04:30 AM


Access to the justice system is fundamentally important, but Canadians have no general right to a lawyer when bringing cases before courts or tribunals, the Supreme Court of Canada says.

Access to government records is an integral part of a democracy, but governments have no duty to provide that access under the Charter of Rights and Freedoms, a judge said in a dissenting opinion in another case.

Canadians could be forgiven for being confused by those findings contained in two major court rulings yesterday, in cases testing their right to access government information and public institutions.

Despite pledges to improve access to justice, judges sometimes have trouble putting the ideal into practice, one legal expert says.

It leaves "some folks, including myself, asking what we've got here," apart from "a bunch of homilies and pieties about the noble quality of access to justice," said Bill Bogart, a University of Windsor law professor.

Despite the dissent on the records case, the ruling ultimately struck a blow for "government accountability." In what civil libertarians are calling a "bold" unmasking of secrecy laws, the Ontario Court of Appeal said a provision in provincial privacy legislation that gave the government an absolute right to withhold information by saying its release would compromise law enforcement activities violates guarantees of freedom of expression under the Charter.

Failing to allow Ontario's information and privacy commissioner to at least determine whether releasing the information may be in the public interest puts the "administration of justice into disrepute," said Justice Harry LaForme in a 2-1 ruling written on behalf of himself and Justice Jean MacFarland.

The ruling means a 318-page Ontario Provincial Police report into the botched investigation of the murder of alleged mobster Domenic Racco near Milton in 1983 might be made public.

Frank Addario, vice-president of the Criminal Lawyers' Association, which went to court to get the report, says it's the first time a "secrecy provision" in freedom of information legislation has been successfully attacked in North America.

"This was a good day for government accountability," he said. "There's always been a big gap between the promise of freedom of information laws and their delivery and the gap is nursed by governments that think they own the information."

"It's not their information, it's ours," he said.

But not all members of the court agreed that access to government information is a Charter right. In a dissenting judgment, Justice Russell Juriansz said the Charter does not impose a positive obligation on governments to open up their files, as the Criminal Lawyers' Association, supported by the Canadian Newspaper Association, argued in the case.

The OPP was asked to investigate the work of the Hamilton-Wentworth and Halton Region Police forces after an Ontario Superior Court judge stayed first-degree murder charges against Graham Court and Denis Monaghan, the two men brought to trial for Racco's murder. Seven years after being arrested, they were freed.

Justice Stephen Glithero cited repeated abuses by police and prosecutors, including the destruction and suppression of useful evidence. Despite his harsh findings, the OPP issued only a terse press release reporting no evidence of deliberate wrongdoing.

The Criminal Lawyers' Association said the provincial government's refusal to disclose the OPP report left it unable to comment on the discrepancies between the force's findings and Glithero's ruling, which violates its Charter guarantee of freedom of expression.

But Juriansz said the association's freedom of expression hadn't yet become an issue because merely having the "desire to make comments" doesn't count as "expressive activity."

When the Charter was being written, the Senate and House of Commons rejected calls to include a clause giving people the right to access information under government control and it would be a "very big step" for courts today, more than 25 years later, to interpret the Charter as providing such a right, he said.

In the second case yesterday, the Supreme Court was also unwilling to take what it called the very big step of declaring that Canadians have a broad constitutional right to a lawyer.

In rejecting that notion and upholding the B.C. government's right to impose a 7 per cent tax on legal services the court is delivering a message strangely at odds with Chief Justice Beverley McLachlin's sharp warning just weeks ago about how the high cost of justice is leaving Canadians struggling before the courts, said Bogart.

"Some of us are left wondering what her position is on all of this," he said yesterday. "What concerns me is that `access to justice' seems very appealing in the abstract and, indeed, it's hard to be against it, but when it comes down to actually doing something about it, you have to make hard decisions."

The case grew out of a crusade by Vancouver lawyer Dugald Christie to have the B.C. tax declared unconstitutional.

A former high-earning litigator, Christie had an awakening after his marriage broke up and a mudslide destroyed his house. He moved into a shelter and began offering legal services to the poor. His income dropped to under $30,000 a year. He was killed last summer in a traffic accident in Sault Ste. Marie, while riding across Canada to raise awareness for his cause.

Christie argued the tax made it impossible for some clients to retain him to pursue their claims; many couldn't afford it and administering the tax ate into his time.

After he died, his friend Darrell Roberts took over the case and, to succeed, he had to establish the Charter guarantees Canadians the right to access courts with the help of a lawyer.

But a broad right to counsel has never been considered part of the rule of law historically and doing so today would saddle governments across the country with a constitutional obligation to provide legal aid for all types of cases, the court said in its 9-0 decision.

"It is a huge change that would alter the legal landscape and impose a not inconsiderable burden on taxpayers."

Bogart said the ruling is the latest in a line of decisions taking a restrictive view of what access to justice means and failing to offer concrete measures to improve it.