Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused on whether the Information and Privacy Commissioner could require in camera production of a charge assessment memorandum despite a prosecutorial discretion claim.

• The core evidentiary dispute concerned a single 14-page Charge Assessment Memorandum said to be entirely comprised of information “relating to or used in the exercise of prosecutorial discretion” under s. 15(1)(g) of FIPPA.

• A prematurity challenge was raised, but the court exercised its discretion to intervene mid-process, given potential irreversible prejudice to prosecutorial independence if the memorandum were disclosed to the Commissioner.

• The parties disagreed on the standard of review, with the court holding that reasonableness, not correctness, applied to the Commissioner’s interlocutory decision about refusing the s. 56.1 application and insisting on record production.

• The court found the Commissioner’s delegate gave no meaningful reasons addressing the Torani affidavit or the nature of the memorandum, rendering the decision unreasonable under the Vavilov reasonableness framework.

• As a remedy, the court remitted the matter to the Commissioner for reconsideration with proper reasons, declined declaratory relief shielding production outright, and made no order as to costs, resulting in no monetary award.

Facts and outcome of the case

Background of the parties and statutory framework
The petitioner is the Attorney General of British Columbia, a “public body” under the Freedom of Information and Protection of Privacy Act (FIPPA). Within the Attorney General’s portfolio, the British Columbia Prosecution Service (BCPS) and its Criminal Justice Branch are responsible for approving and conducting criminal prosecutions under the Crown Counsel Act. The respondent is the Information and Privacy Commissioner for British Columbia, an independent Officer of the Legislature charged with administering and enforcing FIPPA. The matter arises under the Judicial Review Procedure Act, which allows the Attorney General to seek review of decisions made by the Commissioner in the course of an access-to-information proceeding.

Access request and the charge assessment memorandum
An access applicant submitted a FIPPA request to the Attorney General on April 21, 2023, seeking essentially the complete police investigative file held by the BCPS in relation to Surrey Police Investigative file #2016-184216. The request included reports to Crown counsel, information-to-obtain materials, witness statements, wiretap transcripts, vehicle tracking data, and surveillance results. By May 16, 2023, the Attorney General responded that the records in the BCPS’s possession were fully excepted from disclosure under FIPPA provisions dealing with harm to law enforcement, confidential inter-governmental information, and third-party personal privacy. Later, on June 26, 2023, the Attorney General clarified that the police investigative file had been returned to the Surrey RCMP when charge assessment was concluded, leaving only internal confidential Crown memoranda. The sole remaining record was a 14-page Charge Assessment Memorandum documenting Crown counsel’s analysis and decision on whether to approve charges. The Attorney General then relied specifically on solicitor-client privilege, prosecutorial discretion (s. 15(1)(g)), confidential information from another government, and third-party privacy to justify withholding that memorandum, and pointed the applicant to the Surrey RCMP as the source of the underlying investigative materials.

The inquiry before the Commissioner
The applicant asked the Commissioner to review the Attorney General’s refusal. On September 16, 2024, the Commissioner issued a Notice of Inquiry indicating that an adjudicator would consider: (1) whether the Attorney General was required to refuse disclosure under the mandatory third-party privacy exception in s. 22; and (2) whether the Attorney General was authorized to refuse disclosure under ss. 14, 15(1)(g), and 16(1)(b). Before the inquiry proceeded, the Attorney General brought a written application under s. 56 of FIPPA, asking the Commissioner to exercise discretion not to conduct an inquiry at all. The Attorney General argued it was “plain and obvious” that the single Charge Assessment Memorandum was exempt under s. 15(1)(g) because it was entirely comprised of information relating to or used in the exercise of prosecutorial discretion. To support that position, the Attorney General filed an affidavit from BCPS Information and Privacy Counsel, Sally Torani. Drawing on her experience as Crown counsel, she deposed that the record was wholly made up of prosecutorial discretion content and that she could not describe it more specifically without infringing Crown independence.

The Commissioner’s interlocutory decision
On October 16, 2024, the Commissioner’s delegate, acting as adjudicator, issued a brief decision. The adjudicator declined to consider the Attorney General’s application to cancel the inquiry and stated that it was necessary for the Commissioner to review the records in order to make an informed and independent determination on the application of s. 15(1)(g). The decision indicated the ministry could instead make its full submissions during the inquiry itself. In effect, the adjudicator determined that the Charge Assessment Memorandum must be produced in camera to the Commissioner before any final ruling on disclosure to the access applicant. The Attorney General treated this as a binding interlocutory decision compelling production to the Commissioner notwithstanding the prosecutorial discretion claim and commenced judicial review on December 6, 2024, seeking to quash the decision and obtain a declaration that it need not produce the memorandum.

Prematurity, standard of review, and reasonableness analysis
The Commissioner argued that the judicial review was premature because no final disclosure order had yet been made, and that courts should generally avoid fragmenting administrative proceedings by intervening before a tribunal’s final decision. The court reviewed the governing Court of Appeal authorities on prematurity and concluded this was an exceptional case warranting early intervention. If production of the memorandum to the Commissioner would itself irreparably intrude upon prosecutorial independence, that harm could not be undone later, and it was therefore appropriate to consider the petition before the inquiry concluded. On the standard of review, both sides accepted that the Administrative Tribunals Act did not apply and that the Vavilov framework governed. The Attorney General urged correctness review on the basis that the case engaged questions of central importance to the legal system concerning prosecutorial discretion, by analogy to decisions involving solicitor-client and Cabinet privilege. The Commissioner contended that the decision was an exercise of discretion in managing an inquiry and should be reviewed for reasonableness. The court held that the narrow “central importance” category was not engaged. The question was not a sweeping determination of the legal status of all charge assessment memoranda but rather an interlocutory ruling about whether this specific document must be produced in camera so the Commissioner could decide the FIPPA issues. Reasonableness therefore remained the applicable standard. Applying that standard, the court focused on whether the decision was justified in light of the facts and law and whether it contained a coherent, rational chain of analysis. The adjudicator’s brief reasons asserted that reviewing the record was “necessary” but provided no real explanation or engagement with the Torani affidavit or the uncontested description of the record as a pure prosecutorial discretion instrument. The court emphasized that, even in preliminary or procedural rulings, an administrative decision-maker must grapple with central evidence and explain why production is required. Because the reasons did not show that the adjudicator had considered the nature of the single document at issue or the prosecutorial discretion concerns in any meaningful way, the court found the decision unreasonable.

Outcome and next steps in the proceedings
In the result, the court allowed the petition in part. It declined to grant a sweeping declaration that the Attorney General was never required to produce the Charge Assessment Memorandum to the Commissioner. Instead, the court ordered that the matter be remitted to the Commissioner for reconsideration of the Attorney General’s s. 56(1) application. On reconsideration, the Commissioner must expressly address the Torani affidavit, recognize that the only record in dispute is the Charge Assessment Memorandum, and provide a transparent rationale for any conclusion reached about whether an in camera review of that memorandum is necessary. The Attorney General, as petitioner, thus succeeded in having the existing interlocutory decision set aside and the Commissioner directed to provide fuller, reasoned consideration of the prosecutorial discretion concerns, but it did not obtain the categorical protection from production that it had requested. No damages were sought or awarded, and the court directed that there be no order as to costs between the parties, meaning there was no monetary amount granted in favour of any party.