J.R. of P-352
[1993] O.J. No. 998
Court File No: 642/92
Date: 1993/05/06
Court of Appeal for Ontario

(Morden A.C.J.O., Lacourcière and Houlden JJ.A.)


IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J-1;


AND IN THE MATTER OF Order P-351 of the Assistant Information and Privacy commisioner of Ontario ordering disclosure of certain records pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31

  BETWEEN:

IAN WILSON, the Archivist of Ontario		 )
)
)
)
)		 Michael code and John Terry
for the Archivist of Ontario and the Attorney General of Ontario		  
  Applicants )
)		 John Norris
for the undisclosed affected party		  
  and -
TOM MITCHINSON, the Assistant Information and Privacy commisioner of Ontario, CATHERINE THOMPSON, PETER EDWARDS and an UNDISCLOSED AFFECTED PARTY		 )
)
)
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)
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)
Paul Schabas and Andrew Diamond for Peter Edwards

Hilde English for Catherine Thompson
  
  Repondents )
)		 Dennis O'Connor, Q.C. and Christopher Bredt for Tom Mitchinson  
 
AND BETWEEN:

PETER EDWARDS		 )
)
)
)		  
  Applicant )    
 
and -
THE SOLICITOR GENERAL OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, THE ONTARIO PROVINCIAL POLICE, THE WATERLOO POLICE SERVICES, TOM MITCHINSON, The Assistant Information and Privacy Commissioner, IAN WILSON, the Archivist of Ontario, CATHERINE THOMPSON, and an UNDISCLOSED AFFECTED PARTY		 )
)
)
)
)
)
)
)
)
)
)		 Heard: October 18, 19 and 20, 1993  
  Respondents )    

The following judgment was delivered

BY THE COURT:—

This is an appeal and a cross-appeal from a judgment of the Divisional Court reported as Ontario (Solicitor General) v. Mitchinson (1993), 64 O.A.C. 60.Of the many issues submitted to this Court, the one which we believe is determinative of the appeal is whether certain considerations relating to depriving a person of the right to a fair trial set out in s. 14(1)(f) of the Freedom of Information and Protection of Privacy Act (the Act), were properly taken into account by the Assistant Information and Privacy Commissioner (the "Commissioner").

The appellant Edwards, a newspaper reporter, requested access to a 1976 report prepared by the Inspection and Standards Branch of the Ministry of Correctional Services which dealt with allegations of wrongdoing by the staff at the Grandview Training School for Girls in Waterloo, Ontario. The archivist, who had possession of the report, denied access to it on the basis of ss. 14 and 21 of the Act.An appeal was taken from this decision to the Commissioner.The Commissioner rejected the archivist's position and ordered disclosure of the report as edited by the deletion of portions of it and the names of certain individuals.The edited report has not been released as the order of the Divisional Court was stayed pending the disposition of the motion for leave to appeal.When leave to appeal was granted the stay was further extended.

No charges against anyone were pending when the archivist ruled on the matter.On the appeal to the Commissioner he took account of the possibility that charges would be laid.The Commissioner had been informed that a search warrant had been issued under s. 489 of the Criminal Code and that the original report had been seized by the police but he made no reference to these facts.The Commissioner held that there was insufficient evidence to establish that the disclosure of the report, as edited, could reasonably be expected to lead to the harms identified in s. 14(1)(a), (b), (d) or (f).The imminence of charges had been elevated to a higher degree than the mere possibility by reasons of the search warrant and the seizure.

Before the matter came on for hearing before the Divisional Court, criminal charges had been laid.The Divisional Court made no reference to that fact or to the fact that the report had been seized pursuant to the search warrant.

Section 14(1)(f) of the Act provides:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

...

(f)

deprive a person of the right to a fair trial or impartial adjudication.

The Divisional Court referred only to s. 14(2)(a), i.e. exemption from disclosure of a report prepared in the course of law enforcement but failed to consider the application of the exemption afforded by s. 14(1)(f).The Divisional Court did not consider the effect on the Commissioner's jurisdiction of the failure to take into account the imminence of the criminal proceedings in their hearing on the exemption conferred by s. 14(1)(f).

Regardless of the standard of review adopted, it is abundantly clear and counsel for the Attorney General and counsel for the undisclosed affected party agree, that certain parts of the report which were not deleted could reasonably be expected to deprive accused persons of the right to a fair trial.Disclosure of the report, even in its edited form, should not, therefore, be ordered.

When the criminal proceedings are concluded, if the disclosure has not occurred by then, the applicants will be at liberty to renew their application because the section 14(1)(f) concern will no longer exist.

Before concluding, we note that at the outset of the hearing before us, following submissions from counsel, we made the following ruling:

The hearing should be in open court.We are in essential agreement with the procedure followed by the Divisional Court.This is subject to the court's considering and ruling upon the submission of counsel that a particular point cannot be argued effectively except in camera.

Following this ruling it was necessary to hear only a small part of the argument in camera.

Accordingly, the appeal is allowed without costs, the judgment of the Divisional Court is set aside and in place thereof, the application for judicial review will be dismissed without costs, thereby restoring the archivist's disposition.

MORDEN A.C.J.O.
LACOURCIÈRE J.A.
HOULDEN J.A.