Case Report – Investigative records that find their way into prosecutor’s brief not exempt as “prepared” for counsel

On March 6th, the Ontario Divisional Court held that the police investigation records are not exempt from public access as being “prepared” for Crown counsel merely because they are incorporated into a Crown brief.

The dispute involved the so-called “Branch 2” privilege created by section 19(b) of the Ontario Freedom of Information and Protection of Privacy Act. It exempts records from public access that were “prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.”

The Court held that preparing a record for the (policing) purpose of investigating a matter and deciding to lay charges is distinct from preparing a record for the purpose of prosecution. It also held that the detailed exemptions in the Act for “law enforcement records” were an indication that the legislature did not intend the Branch 2 privilege exemption to protect the Crown brief. The law enforcement exemption includes a subpart meant to preserve trial fairness, but this could not be relied upon in the circumstances because the Crown had withdrawn the charges at issue.

Ontario (Attorney General) v. Information and Privacy Commissioner, 2009 CanLII 9740 (CanLII).