Is Discretion the Last Refuge of Scoundrels? A Comment on Criminal Lawyers' Assn v. Ontario (Ministry of Public Safety and Security)
Bibliographic record
Abstract
Is access to information best left to a set of clearly expressed statutory rules, the well-reasoned discretion of information and privacy decision-makers or the court's interpretation of overarching constitutional principles? This article explores the desirability of each of these possibilities in the context of Criminal Lawyers' Assn. v. Ontario (Ministry of Public Safety and Security) and argues that many of the constitutional arguments presented both at trial and at the Court of Appeal misunderstand the proper significance of the fact that both s. 14 and s. 19 are discretionary exemptions. There are several implications to this argument. First, it suggests that, contrary to the Ontario Court of Appeal holding, constitutional argument is not required to compel the consideration of the public interest. Second, even if one can successfully make the argument that the failure to extend the public interest override to these exemptions is a constitutional failure, the s.1 argument is much more difficult than the Ontario Court of Appeal suggests. Third, although this argument seems to undercut the radical potential of finding a constitutionally entrenched right of access to information, we suggest that judicial review of discretion has the potential to guide and, where appropriate, constrain government action under FIPPA, and related access statutes, with greater consistency and effectiveness than constitutional review would permit. Finally, this discussion of discretion points to a different law reform agenda regarding the design of administrative procedures vis-a-vis access to information that will properly discipline its exercise outside of the review process.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.007 | 0.011 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.021 | 0.029 |
| Scholarly communication | 0.010 | 0.005 |
| Open science | 0.005 | 0.003 |
| Research integrity | 0.029 | 0.021 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".