Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 67 3. Could disclosure of the information deprive the person of a fair trial or impartial adjudication? Section 15 of FOIP uses the word could versus “could reasonably be expected to” as seen in other provisions of FOIP. The threshold for could is somewhat lower than a reasonable expectation. The requirement for could is simply that the release of the information could have the specified result. There would still have to be a basis for asserting the harm could occur. If it is fanciful or exceedingly remote, the exemption should not be invoked.247 For this provision to apply there must be objective grounds for believing that disclosing the information could result in the harm alleged. Deprive means to take away or prevent the happening of a certain event.248 Fair trial refers to a trial by an impartial tribunal in accordance with regular procedures; especially a criminal trial in which the defendant’s constitutional and legal rights are respected.249 It means a hearing by an impartial tribunal; a proceeding which hears before it condemns, which proceeds upon inquiry, and renders judgement only after consideration of evidence and facts as a whole.250 Impartial adjudication means a proceeding in which the parties’ legal rights are safeguarded and respected.251 Not favoring one side more than another; unbiased and disinterested; unswayed by personal interest.252 The right to a fair trial is fundamental and cannot be sacrificed.253 For guidance on determining the harm, the Dagenais v. Canadian Broadcasting Corp. (1994) decision may be of assistance. It concerned a publication ban to prevent the televised broadcast of a fictional account of the sexual abuse of boys in an orphanage until the completion of four criminal charges, where there was a similarity between the subject matter 247SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 248 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions. Accessed April 23, 2020. 249 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 743. Similar definition relied on in Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 153. 250 British Columbia Government Services, FOIPPA Policy Definitions at https://www2.gov.bc.ca/gov/content/governments/services-for-government/policiesprocedures/foippa-manual/policy-definitions. Accessed April 23, 2020. 251 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 153. 252 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 901. 253 Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) at p. 841.
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