In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) 2018 ONCA 559 (18 June 2018), Benotto JA for the Court of Appeal for Ontario invokes the Convention on the Rights of the Child 1989 repeatedly (and in my view correctly) despite its supposedly unimplemented status in Canadian law. She frames her use of the Convention as part of the contextual approach to statutory interpretation without purporting to apply the presumption of conformity with international law. But the end result is the same: an interpretation of domestic law in line with our treaty obligations.

In a custody dispute between a mother and a father, the court appointed the Children’s Lawyer to investigate, report and make recommendations. The Children’s Lawyer decided to represent the children pursuant to s. 89(3.1) of the Courts of Justice Act RSO 1990 c C.43. The court eventually terminated the father’s access to the children and all forms of communication with them. The father later sought to vary that order, and the Children’s Lawyer represented the children in that proceeding, too. The father then applied to the Ministry of Attorney General (“MAG”) for the Children’s Lawyer’s litigation files, relying on provisions of the Freedom of Information and Protection of Privacy Act RSO 1990 c F.31 (“FIPPA”). The Assistant Information and Privacy Commissioner of Ontario, acting as adjudicator, granted the request. The Children’s Lawyer appealed to the Divisional Court, which upheld the adjudicator.

Madam Justice Benotto for the unanimous Court of Appeal for Ontario allowed the appeal. Whether the child-client’s litigation records with the Children’s Lawyer were subject to a freedom of information request turned on whether those records were “in the custody or under the control” of the Ministry of Attorney General for the purposes of FIPPA s. 10(1). Justice Benotto held that they were not, and that the adjudicator’s decision betrayed a fundamental misunderstanding of the role of the Children’s Lawyer, her relationship to the MAG, and her statutory duty to protect children.

A preliminary question for the court was what standard of review should be applied to the adjudicator’s decision. The Divisional Court had applied the more deferential standard of reasonableness, in keeping with recent Supreme Court of Canada decisions requiring deference to administrative decision-makers’ legal interpretations of their “home statutes”. There is an exception, however, for questions of general law that are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”: Dunsmuir v. New Brunswick 2008 SCC 9 at [60]. Justice Benotto determined that that exception applied here. In support of that conclusion she relied on a recent Supreme Court decision applying correctness review in the interpretation of freedom of information legislation where it might impact solicitor-client privilege: Alberta (Information and Privacy Commissioner) v. University of Calgary 2016 SCC 53. Notably for our purposes, however, Benotto JA also invoked Canada’s status as a party to the United Nations Convention on the Rights of the Child 1989 [1992] CanTS no 3.

The learned judge began by situating the legal issue in the following context (at [55]): “the best interests of the child; the voice of the child; the confidential role of the Children’s Lawyer; the child’s privacy interests; the fact that confidentiality is broader than solicitor-client privilege; and the fact that the records belong to the child”. She derived this statutory context directly from the Convention, begin with art. 3(1) (“In all actions concerning children…the best interests of the child shall be a primary consideration”) and approving an earlier Court of Appeal authority that the Convention “can help inform the contextual approach to statutory interpretation and judicial review” (reasons at [59], citing Bhajan v Bhajan2010 ONCA 714 at [12]-[14]). In her view, the FIPPA and other statutes at issue in the appeal “must be viewed through this lens and interpreted in a way that gives primacy to the best interests of the child” (reasons at [60]). The adjudicator and the Divisional Court had fallen into effort by failing to consider the best interests of the child.

Justice Benotto also relied on art. 12 of the Convention, requiring states parties to assure that children capable of forming their own views have the right to express them freely in all matters affecting them. The institution of the Children’s Lawyer is a model for addressing the challenge “to find a way for children to express their views without exposing them to further trauma or causing more damage to the family” in custody disputes or child protection proceedings (reasons at [65]). The learned judge continued:

[70]      The Children’s Lawyer not only represents the child’s interests; she provides a safe, effective way for the child’s voice to be heard. For her to do this, she must provide a promise of confidentiality. Children must be able to disclose feelings and facts to the Children’s Lawyer that cannot or will not be communicated to parents….

[71]      It is difficult enough for children to be the subject of litigation. For their voices to be heard, they must be guaranteed confidentiality when they say, “please, don’t tell my mom”, or “please, don’t tell my dad”.

[72]      To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties.…

Justice Benotto invoked the Convention again in considering the threat that disclosure of the Children’s Lawyer’s documents would represent to children’s privacy interests ([73]-[81]). Relying on both the Convention’s preamble and art. 40(2)(b)(vii) (requiring respect for children’s privacy at all stages of proceedings), she noted that the Children’s Lawyer gathers information from and about her child clients in numerous ways, including the assistance of social workers, therapists and teachers, to ensure the child’s voice is heard. Not all of these records will be subject to solicitor-client privilege, but the Children’s Lawyer’s duty of confidentiality will apply to all of them. Furthermore, children enjoy heightened privacy rights “as mandated by the Convention” (reasons at [88]).

Having established the context in which the interpretive exercise must occur, Benotto JA turned to the question of whether MAG had custody or control of the Children’s Lawyer’s records. She rejected the adjudicator’s conclusion that the Children’s Lawyer is a branch of MAG, finding (at [99]) that while the Children’s Lawyer is “administratively structured under and has a funding relationship with MAG, they are not connected with respect to her core functions: there is no statutory relationship between the two entities; she does not receive direction from MAG; she does not report to MAG; and her fiduciary duties are to her child clients, not to MAG”. Nor were the records of the Children’s Lawyer within MAG’s custody or control. These records did not contain government information or any information that would advance the goals of government accountability and transparency ([127]). Notably, Benotto JA rejected the Privacy Commissioner’s reliance on the past practice of MAG forwarding certain FIPPA requests to the Children’s Lawyer for response, calling past practice not determinative and adding (at [125]) that “the evolving nature of the functions of the Children’s Lawyer with respect to advancing children’s interests and the voice of the child, particularly in light of the Convention, requires new scrutiny”.

Scholars of the Convention as a purely international legal instrument may not learn much from this decision. The court’s engagement with the Convention is not (and did not need to be) interpretively profound. The importance of this decision lies in the court’s reliance on the Convention to enable judicial review of an administrative decision and to inform the interpretation of domestic law. In Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, the Supreme Court of Canada declared—wrongly, in my view and others’—that the Convention is unimplemented in Canadian law.* But the court allowed that Canada’s treaty obligations can be a contextual consideration in scrutinizing executive decisions on judicial review. Justice Benotto’s reasoning here rightly ignores Baker’s depiction of the Convention as unimplemented and rightly follows (without citing) Baker’s resort to the Convention as a relevant (perhaps even a mandatory) consideration in judicial review.

The court of appeal’s resort to the Convention here is framed entirely as a contextual analysis and not as an application of the interpretive presumption that statutes conform with Canada’s international obligations. The presumption of conformity is nowhere mentioned in Benotto JA’s reasons. In my view, however, the court’s strong application of the Convention as a contextual factor in statutory interpretation is, in effect, an application of the presumption. The two ideas are closely related. Courts apply the presumption of conformity with international law at the contextual stage of statutory interpretation “in keeping with the international context in which Canadian legislation is enacted”: B010 v. Canada (Citizenship and Immigration) 2015 SCC 58 at [48]; see also [47], [49]. Even without expressly invoking the presumption, Benotto JA’s Convention-informed approach to the FIPPA in this case achieves the presumption’s objective, namely to promote domestic performance of Canada’s obligations under the Convention.

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* It is unsafe, particularly in the human rights context, to conclude that a treaty is unimplemented in domestic law merely from the absence of express implementing legislation. As Canada has explained to the UN human rights system:  “It is not the practice in Canada for one single piece of legislation to be enacted incorporating an entire convention on human rights into domestic law, primarily due to the division of jurisdiction between federal and provincial/territorial levels. Rather, many different federal, provincial and territorial laws and policies together serve to implement Canada’s international human rights obligations.” Canada, Core document forming part of the reports of States parties, HRI/CORE/CAN/2013 (28 January 2013). A much superior account of the Convention’s implementation status in Canada can be found in Martinson J’s reasons in BJG v DLG2010 YKSC 44 at paras. 34-6.