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Governments would be fully justified if they were to eliminate all freedom of information provisions in one fell swoop, an Ontario government lawyer told the Supreme Court of Canada yesterday.

In a forceful submission at a landmark appeal involving the right of citizens to obtain information from government, Ontario lawyer Daniel Guttman maintained that, far from being a constitutional right, access to information is a privilege bestowed on the citizenry.

He urged the judges not to impose any obligation on governments to provide information upon request, since to do so would set a precedent that "runs roughshod" over the court's gradual, careful approach to developing the Charter right to free expression.

However, lawyers for the Criminal Lawyers Association said the province has adopted a cavalier approach to information assembled by public servants at public expense.

"My friend submits that access to information in this country is nothing more than a revocable gift," said David Stratas, a lawyer spearheading the CLA's quest to obtain a suppressed police report on the botched prosecution of two men for the 1998 murder of Toronto gangster Dominic Racco.

"My friend kept saying the sky is falling, and presented images of documents flying out of government files," Mr. Stratas continued. But in reality, he said, the CLA is seeking only the right for provincial and federal information commissioners to release any document with a "compelling public interest" component that clearly outweighs government arguments in favour of confidentiality.

He warned that, taken to its logical conclusion, the Ontario government's approach could be twisted by a future government to justify imposing absolute secrecy over its activities. "History has shown that one of the first things that anti-democratic leaderships do is to pull a curtain of secrecy around their activities," Mr. Stratas said.

Mr. Guttman and lawyers for virtually every province strenuously opposed the CLA's attempt to have the court recognize that, within the right to free expression there is necessarily a right to receive information in government files that would inform public debate.

They cautioned that opening confidential files to the public could chill debate within government institutions and cause police investigators to pull their punches when they report on cases or decide whether to lay criminal charges.

Lawyers for the Federation of Law Societies of Canada and the Canadian Bar Association also warned the court not to compromise the free flow of advice between solicitor and client.

Mr. Justice Ian Binnie interjected at one point during yesterday's argument that both sides of the case have resorted to "apocalyptic" visions of what would happen if their advice is not taken.

"These generalities do not really assist us in determining this appeal," he said.

The Court's decision is not expected for several months.

Periodically, several other judges expressed reservations about hampering the institutions of government by making the confidentiality within which they operate open to prying by individuals seeking documents.

Judge Binnie noted that Supreme Court judges create private notes and hold case conferences, and that the court would be unable to function if these things could be made public. "The problem is that there are many deep-rooted confidentiality interests in order to make government work," Judge Binnie said.

Playing directly to their concerns, Mr. Guttman said: "Everybody will be in here, arguing that they need their document for reasons of compelling public interest.

"It is not the fact that people pay for government that gives them a right to information," Mr. Guttman added. "People pay for judges, too, but that doesn't give them the right to their notes."

Mr. Guttman also argued that police would become wary of committing their thoughts and observations to paper, and that civilians could become reluctant to speak to police in case their statements would later become public.

A Canadian Bar Association lawyer - Mahmud Jamal - predicted that the same chill could affect government figures who need to consult lawyers about policy issues. "We want governments, in assessing whether waterboarding is torture, to have the assistance of counsel," Mr. Jamal said.

However, Brad Elberg - another lawyer for the CLA - emphasized that few documents would make it through the filter of the need to establish a compelling public interest that outweighs claims of confidentiality based on solicitor-client privilege or the needs of law enforcement.

Of the botched Racco murder case, Mr. Elberg said: "There was a tremendous problem in the justice system. Something went wrong. We don't know why. We don't know what happened. There is a tremendous interest in having this information come out to animate discussion of it."