Sean Kilpatrick
A stone's throw from Parliament, nine Supreme Court of Canada judges are locked in protracted debate over a case that could blow the veil of secrecy off the Afghan detainee affair, ex-MP Rahim Jaffer's curious plea bargain and any number of like controversies.
At stake is a right to obtain information from government, and 16 months after the judges retired to consider creating legal history, they are still thrashing out the implications of the case, in which a criminal lawyers' group seeking a report on a police investigation is arguing that citizens have a right to information held by governments.
The case has already gone through the longest gestation period for a judgment since a landmark aboriginal rights case in 1990, a fact that has caused Supreme Court watchers to believe that a dramatic ruling is in the offing.
"The length of time it is taking the Supreme Court to decide the case shows that the judges are well aware that it raises issues of paramount importance and critical timeliness," said Jamie Cameron, a law professor at York University's Osgoode Hall Law School. "There are issues that have deep implications for core democratic values - the openness, transparency and accountability of government in all its functions, especially and including those that are most sensitive, like law enforcement and national security."
"If I had to hazard a guess, we may be looking at a very split court," University of Alberta law professor Sanjeev Anand observed.
In theory, the existence of a right to know could have forced the Harper government to release legible copies of thousands of pages concerning Afghan detainees rather than the heavily censored copies that have frustrated opposition critics and the media. It might well have compelled Ontario police or prosecutors to divulge documents that explain why Mr. Jaffer received an unusually favourable plea bargain after being charged with speeding and possession of cocaine.
"A right to know and to gain access would radically affect the landscape," Prof. Anand said. "Certainly, one of the underpinnings of free expression is its value when it comes to participating in a democratic process."
The battle is being fought over a secret Ontario Provincial Police report that goes back to the murder of reputed Toronto mobster Domenic Racco, whose body was found 26 years ago on a Milton, Ont., railway line.
Two men charged in the slaying, Graham Court and Denis Monaghan, walked free in 1997 after a judge found police and prosecutors engaged in massive abuses, including suppressing almost every piece of evidence helpful to the defence.
After conducting its own investigation, the OPP exonerated the officials. Attempts by the Criminal Lawyers Association to get the OPP's 318-page report under Ontario's freedom of information laws failed.
CLA lawyers Brad Elberg and David Stratas (since appointed a judge of the Federal Court of Appeal) argued before the Supreme Court that freedom of expression gives citizens the right to obtain government-held information so they can form opinions on issues of the day.
"There was a tremendous problem in the justice system," Mr. Elberg said of the Racco case. "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."
He noted that many countries have constitutional provisions recognizing access to information, including Thailand, South Africa, Norway and Poland.
The CLA lost 3-0 in Ontario's Divisional Court. However, it won a 2-1 victory in the Ontario Court of Appeal, which said it was unconstitutional to prohibit Ontario's information commissioner from releasing the documents on public interest grounds.
"Access to this kind of information is at the core of democratic accountability," said Prof. Cameron of York University. "For that reason, the case raises key issues about the control of information and whether the public's right to know overrides the government's interest in non-disclosure."