Thursday, May 10, 2007

CALL Conference 2007 - Press Bans, Privacy and Access to Information

The Tuesday plenary session at this year's annual conference of the Canadian Association of Law Libraries in Ottawa was a panel discussion entitled "Are We Becoming a Secret Society? Press Bans, Privacy and Access to Information".

The speakers were Barbara McIsaac, senior counsel, McCarthy Tétrault LLP, Ottawa; John Reid, former Information Commissioner of Canada; and Rick Dearden, of Gowlings Lafleur Henderson LLP Ottawa.

McIsaac is co-author of The Law of Privacy in Canada, one of the major Canadian privacy law texts. She served as Senior Counsel to the Somalia Inquiry and Senior Counsel for the Government of Canada to the Arar Inquiry. She has also represented the Canadian Broadcasting Corporation in front of the Cornwall Inquiry on the investigation of an alleged pedophile ring in Eastern Ontario.

McIsaac, who has been on both sides of the fence when it comes to access to official government information, made one essential point throughout her presentation that touched on the many dimensions of the conflict between the public's right to know, legitimate state interests to protect government sources in national security affairs, and the strong interest of private individuals to protect their reputations when they have never been charged or have had criminal charges dropped against them. That point was the natural tendency of bureaucracies to "overclaim" state interests in withholding information.

Dearden also made that same point. And he feels that things have been getting worse since the September 11 terrorist attacks.

Over the years, Dearden has argued media law cases before every level of court in Ontario, the Federal Court of Canada, the Federal Court of Appeal and the Supreme Court of Canada. He also acted for the Office of the Auditor General throughout the hearings of the Commission of Inquiry Into The Sponsorship Program and Advertising Activities (Gomery Inquiry).

He most recently represented Ottawa Citizen reporter Juliet O'Neill, whose home and office were raided by the Royal Canadian Mounted Police in 2004 as part of an investigation into leaks of classified information about Maher Arar, the Syrian-born Canadian who was deported to Syria by the United States, suspected of ties to al Qaeda. Arar, of course, was tortured in Syria before being returned to Canada. A judicial commission, the Arar Inquiry under Justice O'Connor, cleared Arar of any taint of association with terrorism.

The sealed search warrants against Ms. O'Neill were executed under the Security of Information Act, which is normally intended to protect sensitive state or defence information from spies and traitors. Lawyers representing Ms. O'Neill and the newspaper launched a legal action to have the search warrants declared unconstitutional and quashed, and for police to return all items seized during the raids, including Ms. O'Neill's notebooks and computer files. The sections of the legislation under which the warrants were executed were struck down for arbitrariness and their unconstitutional vagueness. O'Neill could have faced up to 14 years in prison under the section of the Act that was declared to be in violation of the Charter of Rights and Freedoms.

Like McIsaac, Dearden described what he sees as a government pattern to "overclaim" national security or secrecy interests. Often, officials made the broadest possible claims about the need to protect as much information as possible as an opening negotiating position and then unseal documents only if ordered to do so by a court of law. He argues that this belittles genuine national security interests that truly protect the public, as opposed to protecting the government from embarrassing leaks and revelations.

Former Information Commissioner John Reid, whose job for 8 years was to see to the application of the federal Access to Information Act, explained some of his powers under that legislation. For instance, he could take government departments to court on behalf of freedom of information requestors. Of course, he was also often sued back by officials seeking to prevent the release of information felt to be sensitive or injurious to government interests under various exceptions defined under the Act.

He explained that his record in front of the courts was excellent: according to Reid, he won 100% of the cases he initiated, and 94% of the cases when he was being sued by the federal government. His conclusion: the government obviously knew this. Which leads him to believe the government was using the court system to delay release of information to the point that any timeliness for the requestor practically disappeared.

Again, in the case of access to federal government information, the same pattern referred to by McIsaac and Dearden applied: overclaiming the need to protect.

Nonetheless, Reid stressed to the audience that the importance of the Access to Information Act could not be underestimated.

It is after all through the use of the legislation that the public discovered recently how Taliban fighters captured by Canadian troops in Afghanistan were being turned over to Afghan security officials despite reports from Canadian diplomats about the risk of mistreatment and possibly torture. As well, Maher Arar was able, through the Act, to get bits and pieces of information that ultimately, along with other information, helped show that he was a man innocent of any wrongdoing or connection to terrorist activity.

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posted by Michel-Adrien at 5:25 pm

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