Disclosure of an Accused’s HIV Status by the Police
In R. v. Gowdy, 2016 ONCA 989, the Court of Appeal for Ontario
considered, in obiter, whether two
provincial statutes authorized or permitted the police to release the accused’s
private medical information (namely, his HIV status):
·
Municipal Freedom of Information and
Protection of Privacy Act (MFIPPA),
·
Police Services Act,
(PSA) and
Regulations passed under it.
The day after the arrest
of Gowdy, Durham Regional Police had issued a media release announcing the arrest
and disclosing the fact that the Gowdy was HIV positive.
Was
Disclosure of the Accused’s HIV Status Authorized under the PSA?
The PSA contains no
express prohibition against disclosure of personal information. However, such a
prohibition would seem to arise by necessary implication from s. 41(1.1), which
authorizes the chief of police or anyone the chief designates for the purpose
of the subsection to disclose personal information about an individual,
provided the disclosure is in accordance with regulations passed under the PSA. The exception or
exemption in s. 41(1.1) applies despite any other Act and is deemed to be
compliant with s. 32(e) of MFIPPA
and s. 42(1)(e) of the Freedom
of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
Disclosure under s.
41(1.1) of the PSA may
be made for the purpose of protecting the public or victims of crime, amongst
other purposes, when it is reasonably believed an individual poses a
significant risk of harm to other persons: PSA,
s. 41(1.2); O. Reg. 265/98, s. 2.
The
Court of Appeal was of the view that the PSA
did not authorize disclosure of the accused’s HIV positive status in the
circumstances.
The exemption in s.
41(1.1) of the PSA
authorizes a chief of police, or his or her designate, to disclose personal
information about an individual in accordance with regulations passed under the
PSA. Section
41(1.2) adds a requirement that disclosure of personal information be for one
or more of several listed purposes, including protection of the public and law
enforcement. Sections 2 and 3 of O. Reg. 265/98 describe the substance of the
personal information that a chief of police or designate may disclose. Nothing
authorized the disclosure of the personal medical information in the Gowdy’s case.
·
There was no evidence that the chief of
police or a designate authorized the release,
·
It had not been established that the
police reasonably believed Gowdy posed a significant risk of harm to others and
that the disclosure would reduce the risk posed [notwithstanding evidence establishing
that Gowdy was sexually active and was not disclosing his HIV status],
·
The accused was not yet convicted of an
offence and the information released went beyond what could be authorized in
relation to a person charged: O.Reg. 265/98, s. 3.
However, the Court took
the position that the disclosure of the Accused’s HIV Status may have been authorized
under the MFIPPA (namely, under an exception to the general prohibition against
disclosure of personal information).
Again, it should be noted that the Court’s analysis
of the whether these two statutes authorized or prohibited disclosure was
subsidiary to the main issues on which the appeal was decided. Thus, while the court’s analysis may offer us
useful guidance, it does not constitute binding law.
See R. v. Gowdy, at para 112.
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