Disclosure to victims can outstrip an offender’s right to privacy

The recent coverage regarding the penitentiary transfer of Paul Bernardo has been extremely troubling on so many fronts. First and foremost, I can only begin to imagine the pain and grief that the families of Kristen French and Leslie Mahaffy go through every time his name is mentioned in the press. No family that has ever lost a loved one as a result of a heinous, callous act of murder should ever have to relive the pain and anguish they have suffered. To each of the families: your loved ones will always be in our memories and forever in our hearts. What is equally troubling about the coverage is the discussion about what information can or cannot be disclosed to the families and the public. Based on my firsthand experience as the former commissioner of the Correctional Service of Canada, there are several provisions that allow for the disclosure of information, both under the Privacy Act and the Corrections and Conditional Release Act. This discretion allows the commissioner of corrections to share information with the families and with the general public. Section 8(2)(m) of the Privacy Act permits for the disclosure of personal information where, “in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or disclosure would clearly benefit the individual to whom the information relates. It is up to the head of the institution to determine whether the public interest outweighs the right to privacy.” Furthermore, Section 26 of the Corrections and Conditional Release Act, gives the commissioner discretion in disclosing information to victims about any significant information about the offender, where in the commissioner’s opinion the interest of the victim in such disclosure clearly outweighs any invasion of the offender’s privacy that could result from the disclosure. Don Head had a 40-year career in the public service, beginning in 1978. From 2008 until he retired in 2018, Head was the commissioner of the Correctional Service Canada. Photograph courtesy of Don Head There exists a significant onus on the bureaucracy to understand how it can fully use the existing laws to better ease the pain of the families and inform the public at the same time. Sharing information with victims is a cornerstone of the Canadian correctional system. As indicated, there are specific provisions in Canadian statutes that provide opportunities for victims to receive information about an offender including the status of the offender who harmed them, the offender’s progress on their correctional plan, and the offender’s release date, destination, and conditions unless that information would negatively impact public safety. Exercising these provisions of the two statutes requires both a delicate balancing act and strong leadership. However, for a government agency to claim that they cannot disclose information for privacy reasons is not an excuse that is acceptable or defensible today. While each case needs to be weighed on its own merit, when it comes to sharing information with victims under the Corrections and Conditional Release Act, there is ample opportunity to address most questions and concerns they have about the majority of decisions made in a correctional setting regarding an offender. As a matter of fact, if an offender is transferred, a summary of the reasons for the transfer, and the name and location of the penitentiary in which the sentence is being served can be shared. In addition, victims can be informed of the programs that were designed to address the needs of the offender, the serious disciplinary offences that the offender has committed, and information pertaining to the offender’s correctional plan, including information regarding the offender’s progress towards meeting the objectives of their plan. There is no question that a legislative debate should occur as to how to broaden the scope of information that could be provided to victims in relation to correctional decision-making. However, until that time, there is a framework in place for sharing more information in relation to the current case in the media, but it requires fearless leadership on the part of the bureaucracy to make it happen. It is time for the public safety minister and the commissioner of corrections to put the needs of the families of Kristen French and Leslie Mahaffy ahead of the privacy needs of this particular offender. Don Head had a 40-year career in the public service, beginning in 1978. From 2008 until he retired in 2018, Head was the commissioner of the Correctional Service Canada and served on various deputy minister-level committees that were actively involved in various aspects of public service delivery. Head currently assists the Aleph Institute, which is a non-profit Jewish organization dedicated to assisting and caring for the well-being of members of specific populations that are isolated from the regular community. The Hill Times

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Disclosure to victims can outstrip an offender’s right to privacy

For a government agency to claim that they cannot disclose information for privacy reasons is not an excuse that is either acceptable or defensible today.

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