Police disclosure of accused’s HIV status breaches s 7, stay denied

On July 7th, Justice Block of the Ontario Court of Justice held that the police breached MFIPPA and section 7 of the Canadian Charter of Rights and Freedoms by disclosing an accused person’s status as HIV-positive without a reasonable belief that the individual posed a significant risk of harm to others.

The accused  was a youth pastor who was charged with luring a person believed to be under the age of sixteen. Charges followed after the accused offered to give fellatio to a sex crimes detective who was posing as a fifteen year old. After his arrest, the accused volunteered his status as HIV-positive, and the police published a media release that described the accused’s status for the purpose of alerting individuals who had been in contact with the accused to they could seek testing or treatment services.

Justice Block was shocked at the assumptions that the police employed. He said:

Mr Gowdy was intensely private about his sexual interests. His family, church community and the bulk of his friends were unaware of his sexual orientation. His church regards homosexual practises as sinful. The evidence suggests that this deeply closeted pastor would have had furtive occasional sexual encounters with men he knew little or nothing about. Whether or not Mr Gowdy was evasive, there was no admission in his interview that these prior sexual contacts were unaware of his HIV status, other than contacts he had after his exposure to HIV but before his diagnosis. There was no admission that he engaged in activities that carried the risk of transmission after his exposure. No steps were taken to find out if the medical authorities treating Mr Gowdy had already traced his contacts.

Justice Block held the disclosure was not authorized by the Police Services Act and breached MFIPPA and the right to be free from “serious state-imposed psychological stress” that is guaranteed by section 7 of the Charter. He said that a police media release that names a person HIV-positive must be authorized by a police chief or properly authorized designate and must be based on a reasonable belief that the disclosure will ameliorate a significant risk of harm to the public. More questionably, reasoning that the Police Services Act is a “complete code,” he suggested that the police cannot release such information about a person who has only been charged with an offence.

Justice Block denied a stay, but chided the police for their “well-intentioned” demonstration of “profound ignorance.”

R v Gowdy, 2014 ONCJ 592 (CanLII).

Voluntary bank disclosure to police lawful

On August 7th, Justice Fuerst of the Ontario Superior Court of Justice held that the police did not breach an individual’s reasonable expectation of privacy by receiving information from two banks and using the information to obtain restraint orders.

The judgement is notable for the Court’s recognition of the banks’ legitimate interest in providing voluntary assistance to the police. Justice Fuerst said:

The bank was directly implicated in allegations of money-laundering. It had a legitimate interest in preventing the criminal misuse of its services, particularly in circumstances where accounts associated to the applicant were alleged to be offence-related property subject to forfeiture.

Disclosing personal information to the police (within certain parameters) is permitted by section sections 7(3)(c.1) and 7(3)(d) of the Personal Information Protection and Electronic Documents Act, which Justice Fuerst noted in her reasonable expectation of privacy analysis. Section 7(3)(d) authorizes disclosures initiated by commercial organizations. Notably, Justice Fuerst held that section 7(3)(d) allows for some two-way dialogue between the disclosing organization and the police: “It is unreasonable to interpret s. 7(3)(d) so narrowly that police officers to whom information is given by organizations like banks about possible criminal activity can do no more than passively receive it and are prevented from asking for specifics or details necessary to take steps in response.”

R v Kenneth James, 2013 ONSC 5085 (CanLII).