ACCESS TO JUSTICE
TheStar.com - News - Mixed signals from
courts on openness
Mixed signals from courts on openness
2007 04:30 AM
LEGAL AFFAIRS REPORTER
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
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
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
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
"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
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
"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
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.