Censors must not arbitrarily black out public documents, panel rules


From Friday's Globe and Mail
Censors can’t just black out portions of public documents, casually deciding disclosure might bedevil foreign relations, a three-judge panel of the Federal Court of Appeals has ruled in a shot across the bow of a government accused of being too secretive.

The case dates back to 2007 when Stephen Harper’s government blacked out all references to torture, extrajudicial killing and other violent mistreatment of detainees in Afghan hands, even as ministers were telling the House of Commons they were unaware of any nastiness.

Even after The Globe and Mail published the “blacked out” portions of the documents, the government refused to make them public under the Access to Information Act, saying that disclosure would undermine national security and wreck relations with the Karzai government in Kabul.

“It’s symbolic but it’s important,” said Michel Drapeau, a University of Ottawa law professor and Canada’s foremost expert in the Access to Information Act. Prof. Drapeau, a retired colonel and author of the primary university textbooks on Access to Information, called the judgment a “shot across the bow” of government and “a most welcome victory.”

The ruling against the Minister of Foreign Affairs concludes there was a “failure to exercise the discretion” required under the Act. In effect, the appeals court judges made no finding as to whether the censored passages should have been disclosed, only that there was no evidence of proper consideration by the minister and that the censorship was arbitrary.

“It means an end to willy-nilly censorship by invoking national security like pixie dust,” said Amir Attaran, who had filed the original Access to Information request for the reports on Afghan governance and human-rights written annually by Canadian diplomats.

“The government was just slapping the national security excuse on anything it didn’t want released,” said Prof. Attaran, an associate law professor at the University of Ottawa. He expects the ruling will force government censors to be less cavalier with the blackout pens.

But the ruling stops short of saying ministers must explain why deletions were made. Rather it only requires that there be evidence that discretion was exercised; that there was a careful and appropriate consideration rather than arbitrary refusals to release information or the blacking out of embarrassing sections.

“The government has to exercise its discretion, but it doesn’t have to explain,” Prof. Drapeau said. However, he said, “the right of access is horrifying threadbare.”

In recent years, ministries have increasingly handled access to information requests with blacked-out documents, often turning thousands of pages into black blocks, especially on politically sensitive issues like detainee abuse.

It matters, Prof. Drapeau said, “mainly because the court opted to hear the case and has now clearly established the burden is on the government” to show that it has exercised discretion if it decides to withhold material.



Commentary by the Ottawa Mens  Centre


Canadian Governments habitually abuse their powers by making it next to impossible for the average person to find out any information that might be prejudicial to the government.

The most obvious and critical are those abuses by the Courts who fail to report every decision made and generally, any decision that might expose criminal actions by the judiciary, is NOT reported.

Most cases where the judge has a conflict, the hearing is held in an obscure court room, to avoid any witnesses. The courts make it difficult to obtain transcripts and when transcripts are obtained, at great expense, judges frequently order that portions be removed or changed to suit their intent which can include changing completely what really happened.

The fact is, it technologically possible for every court room in the country to be wired so that anyone at home can listen in, and the audio of every case should be recorded and available for the public to listen to by simply downloading it.

That raises another issue, of video live feeds of court rooms. Most of the time, most people do not have time to go to court and watch but could do so from home in their own time. It is also extremely easy to have all court cases video recorded.

Then there are all the court documents and most courts in Canada do not have any form of E-Filing, and the court documents are NOT available to the public.

All that needs to change.

Most police forces in fact any establishment makes it impossible to gain reports, police reports especially are blacked out, and every excuse imaginable is used to prevent any disclosure.

Then you have the Children's Aid Societies who play god by FAILING to comply with court orders for disclosure and using "solicitor client privilege" to prevent any prejudicial information getting out.

Canada is a third world when it comes to a justice system, we have those in establishments habitually abusing their powers and worst of all, an underbelly of the Judiciary who are famous for their corruption , that makes decisions for their friends against those they don't like. The classic example and perhaps the most famous worst of the worst example is Justice Allan Sheffield of Ottawa.