Case Report – FC doesn’t bite on broad arguments in access dispute

On April 2nd, the Federal Court upheld a Department of Foreign Affairs and International Trade decision to deny public access to information that was critical of the Afghanistan government because its disclosure could reasonably be expected to be injurious to international affairs.

Though the outcome turns on the evidence adduced by the department in support of its exemption claim, the decision is nonetheless notable for the Court’s rejection of several broader arguments brought by the applicant and intervenor. It held:

  • that a department is not precluded from shielding information about torture under the international affairs exemption because of the status of torture in international human rights norms
  • that a right of public access to government information is not protected under section 2(b) of the Charter
  • that a department does not need to consider section 2(b) Charter values in deciding whether to apply a discretionary exemption in the ATIA

Issues about the scope section 2(b) as it relates to public access to government information were argued last December before Supreme Court of Canada. In this decision, the Federal Court seemed content to wait for the Supreme Court to have its say in the Criminal Lawyers’ Association case and simply deferred to prior Federal Court jurisprudence.

Attaran v. Minister of Foreign Affairs, 2009 FC 339.

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