Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 67 3. Could disclosure of the information deprive the person of a fair trial or impartial adjudication? Section 14 of LA FOIP uses the word could versus “could reasonably be expected to” as seen in other provisions of LA 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.256 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 withhold something that one needs.257 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.258 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.259 Impartial adjudication means a proceeding in which the parties’ legal rights are safeguarded and respected.260 Not favoring one side more than another; unbiased and disinterested; unswayed by personal interest.261 The right to a fair trial is fundamental and cannot be sacrificed.262 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 of the television program and the charges faced by the accused individuals. The main issue addressed was whether the infringement of the Charter right to freedom of expression was justified in order to ensure that the accused individuals received a fair and impartial 256SK OIPC Review Reports LA-2007-001 at [117], LA-2013-001 at [35], F-2014-001 at [149]. 257 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 556. 258 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, p. 153. 259 260 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4, p. 153. 261 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 901. 262 Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) at pp. 841.
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