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Prisons - Privacy. Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party AITA statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court.
In these quotes the court addresses prisoner's privacy rights, both from a corrections and a public perspective:[46] It is apparent that the contents of those records will contain practically only personal information. The Court can take notice that offenders, in their relations with Corrections Canada, have very little expectation of privacy. They are under constant supervision and assessment, for security purposes and for program purposes. As a result, the records maintained by Corrections Canada, taken together, contain an exceptional amount of personal information compared to other government institutions, with the possible exception of the police.
[47] The Families’ memorandum of fact and law argues that the Offenders have lost any privacy rights they might otherwise have had relating to their crimes and their sentences. A few examples follow:By virtue of seeking a public remedy, at a public parole hearing, arising from a public crime, following a public trial, public sentencing and public appeals, there can be no reasonable expectation of privacy and certainly no greater expectation of privacy than that which they experienced heretofore. If these offenders enjoyed any privacy right during the prosecution stage related to the offence, they were waived or must give way to the public interest when seeking release from the full consequences of their life sentences. There is nothing private about parole.
Para. 3
If the privacy rights of Canada’s most dangerous offenders who have committed the most serious of criminal offences, with a complete disregard for human life and the dignity of their victims trump the public interest when these offenders seek a public remedy, then facts do not matter and the public interest is rendered meaningless.
Para. 5
The overwhelming public nature of the types of crimes sought to be caught by the ATIP requests herein has been reaffirmed repeatedly by some of the most distinguished and experienced judges in Canada. … there is nothing private about these crimes. These judges made it clear in their respective decisions that the crimes these offenders had committed were very public crimes against society and humanity itself.
Para. 6
Everything about these murders were public – from the investigations, arrests, trials, convictions, to the sentencing and the appeals. The parole hearings for Munro, Bernardo and Gayle were also public. In the case of Paul Bernardo, there was a massive media presence at his parole hearing. To somehow impress these cases with an offender’s privacy interest for the purpose of parole hearings and to keep secret, facts highly relevant to the issue of public safety which could never have been kept secret at trial and on sentencing, simply strains the boundaries of credulity.
Para. 64
Justice McVeigh did not give any weight to these factors in reviewing how [Corrections Canada]/[the Parole Board] balanced the interests of those who committed the act of murder, with the public interest, as aligned with the families, whose loved ones had their privacy rights ripped apart by unspeakable acts of violence committed by the very people who assert that their privacy rights must prevail.
Para. 65
When the herein offenders ask for a benefit by seeking parole, they are instituting a legal proceeding, whilst asserting a privacy interest in the very materials they rely upon for the purpose of obtaining parole, including the recording and/or transcript of the public hearing itself. In these circumstances, any privacy rights are necessarily waived. The offender cannot have it both ways.
Para. 82
The notion that protecting the “human dignity” of offenders convicted of first-degree murder who are seeking parole after committing unspeakable public crimes, rising to the level of “public importance” to displace the open justice principle, is untenable. The purported “private” information is not private at all, as it is vitally important in determining whether parole should be granted or not.
Para. 83
(emphasis in original) [48] These passages vividly demonstrate how strongly the Families feel about the Offenders’ privacy rights. But the law is not on their side on this issue. Paragraph 4(d) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Corrections Act) provides that:4 The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
4 Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants :
...
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
d) le délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux dont la suppression ou la restriction légitime est une conséquence nécessaire de la peine qui lui est infligée; [49] The Offenders’ privacy rights are protected by section 3 of the AIA, which is incorporated by reference into the Privacy Act, as well as by sections 19 of the AIA and 8 of the Privacy Act:“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
...
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;
...
(g) the views or opinions of another individual about the individual,
(g) les idées ou opinions d’autrui sur lui;
19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information.
19 (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant des renseignements personnels.
(2) The head of a government institution may disclose any record requested under this Part that contains personal information if
(2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
(a) the individual to whom it relates consents to the disclosure;
(a) l’individu qu’ils concernent y consent;
(b) the information is publicly available; or
(b) le public y a accès;
(c) the disclosure is in accordance with section 8 of the Privacy Act.
(c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
8 (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
8 (1) Les renseignements personnels qui relèvent d’une institution fédérale ne peuvent être communiqués, à défaut du consentement de l’individu qu’ils concernent, que conformément au présent article.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
...
(m) for any purpose where, in the opinion of the head of the institution,
(m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
... [50] The Families seek to avoid the application of the relevant statutory provisions to this information by arguing that there is no distinction between the trial and sentencing of these Offenders and the administration of their period of incarceration. Nothing in the Criminal Code, R.S.C. 1985, c. C-46 or the Corrections Act compels that conclusion. The Offenders’ trial and sentencing took place in open court and were covered by the open court principle. The Offenders’ incarceration is administered by Corrections Canada and the Parole Board, neither of whom, as we shall see, is covered by the open court principle and both of whom are subject to the AIA and the Privacy Act.
[51] The Families’ insistence upon the fact that applicants for parole are seeking a public remedy that is inconsistent with privacy rights is not conclusive. It is true that parole hearings are open to the public, subject to the screening criteria set out in paragraphs 140(4)(a) to (d) of the Corrections Act, but the information disclosed in those proceedings is deemed not to be publicly available by subsection 140(14) of that Act:140 (14) If an observer has been present during a hearing or a victim or a person has exercised their right under subsection (13), any information or documents discussed or referred to during the hearing shall not for that reason alone be considered to be publicly available for purposes of the Access to Information Act or the Privacy Act.
140 (14) Si un observateur est présent lors d’une audience ou si la victime ou la personne visée au paragraphe 142(3) a exercé ses droits au titre du paragraphe (13), les renseignements et documents qui y sont étudiés ou communiqués ne sont pas réputés être des documents accessibles au public aux fins de la Loi sur la protection des renseignements personnels et de la Loi sur l’accès à l’information. [52] The Families shake their heads at the inanity of declaring that something disclosed in a public forum is not publicly available. But this inanity is irrelevant to their classification of parole as a “public” remedy, by which they suggest that there are no privacy issues associated with parole. Privacy issues arise because paragraph 4(d) of the Corrections Act preserves offenders’ rights to privacy and their sentences and parole applications are administered by agencies who are subject to the AIA and the Privacy Act.
[53] It follows from this that, until the contrary is shown, offenders have the same privacy rights as all members of society except insofar as they are necessarily and lawfully removed or restricted. The Federal Court and the heads of Corrections Canada and the Parole Board did not fall into error in concluding that the information that the Families sought was personal information and protected by the AIA and the Privacy Act.
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