Beverley McLachlin: ‘A democracy just can’t work without the people having information’

Beverley McLachlin became the chief justice of the Supreme Court of Canada in 2000 and served for a record 17 years. During her tenure, the court heard several pivotal cases concerning freedom of information-law in the country. Recently, Ms. McLachlin spoke with The Globe and Mail about Canadian access law and its place in democracy.

I want to start with access to information and its role in our democracy, which was the subject of an influential speech you gave back in 2009. In that speech you said: “...information itself – or the possibility of information coming to light – acts as a check on abuse of powers.” How important is freedom of information legislation?

Well, a democracy just can’t work without the people having information. That is key to making decisions around how you vote. It’s key to making informed decisions. We’re in this age of social media where people are substituting opinions for facts. Facts are absolutely basic to good democratic governance and accountability. 

In 1997 and 2002, the Supreme Court heard two important cases – Dagg v. Canada (Minister of Finance) and Lavigne v. Canada (Office of the Commissioner of Official Languages). The decisions established that the Access to Information and Privacy Acts were “quasi-constitutional” in nature. Can you explain what that means?

it just means, it’s not sort of unquestionably enforced under the Charter, for example, but courts will give it a lot of added weight. It will count more than other considerations, because it's one of the assumptions that is underlying our democracy – that has been worked into the fabric of how our government works – and built into it. 

So, if I’m understanding correctly, it’s not necessarily up there with a Charter right, but it has more weight than regular laws, because there is this understanding that it is foundational to our democracy and constitution?

Yes, that’s well said. 

One of the things that’s come up a lot in our reporting is that access laws build in a lot of discretion. There are many exemptions where the legislation says an institution “may refuse to disclose.” What are your thoughts on discretion within the law?

You have to have discretion to make things work in laws because there are always cases that can't be classified. But the exercise of discretion is not just putting your finger to the wind and seeing which way it's blowing. It is actually a kind of quasi-judicial function, where you look at the discretion that's been given. You look at the issue. You weigh the pros and cons. You take into consideration each side and you understand that the default should be access. Only for some very good reason do you exercise your discretion against that. That's how I would see the exercise of discretion. I don't think you can get rid of discretion, but you can promote responsible exercise of discretion.

Something else that we’re seeing in our reporting is that the appeals system is extremely backlogged. If a person is unhappy with an institution’s response to an FOI, and they get to the appeals commission, it takes years to receive a decision.

Accessing information can be a timely matter. If issues come up, you need to have that information, so the people can understand what's going on then, not five years later when nobody cares anymore. I can't speak to why there are delays or how we can remedy this, but I can say that these things should be adjudicated on a timely basis. Real time for real lives.

The last case I wanted to ask you about is from 2010, Ontario (Public Safety and Security) v. Criminal Lawyers' Association. The CLA lost their case, however, the decision seemed to suggest that in some circumstances, a party may be able to use the Charter’s right to freedom of expression in order to force access to information. This principle has yet to be tested, but I’m wondering if you can talk about how it is that access to information may be protected through freedom of expression.

I don’t usually comment on the details of cases. But I will say – and this has nothing to do with that case – there seems to me to be a logical link between freedom of expression and access to information. Because let's say there's an issue. You care about the issue. You would like to express yourself on it. If you cannot get the information, the facts that pertain to that issue, you cannot express yourself. You cannot make the argument, right? So that is the logical link. 

Any closing thoughts?

I think it's important that we keep the right to access critical information strong and that we keep the system working in a way that provides information that people have a right to see in a timely manner.

Beverley McLachlin served as Canada’s Chief Justice of the Supreme Court from 2000 to 2017. She is currently a non-permanent judge of the Hong Kong Court of Final Appeal.

This interview has been edited and condensed.

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