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Submission to the Department of Justice Canada, Public Consultation on Modernizing Canada’s Privacy Act

 

Submitted by: Ms. Heidi Illingworth, Ombudsman
Office of the Federal Ombudsman for Victims of Crime
February 2021

 

The Federal Ombudsman for Victims of Crime

As Federal Ombudsman for Victims of Crime, my mandate is to help ensure that the rights of victims and survivors of crime are respected and upheld, and that the federal government meets its obligations to victims. This includes ensuring that victims and their families have access to the federal programs and services that were specifically designed for their support. In addition to assisting individual victims, I also have a responsibility to identify and bring forward emerging and systemic issues that negatively affect victims of crime at the federal level.

One such systemic issue is that neither the Privacy Act nor its implementing regulations provides a definitive legal framework to regulate how federal agencies share information about offenders across the justice system with victims and survivors of crime, despite the provisions of the Canadian Victims Bill of Rights (CVBR), which articulates a victim’s right to access to such information.

At OFOVC, we agree there is a need to modernize the Privacy Act to enhance Canadians’ trust in how federal public bodies treat, manage and protect their personal information. The Canadian public expects federal bodies to protect individuals’ personal information and make better use of their information to keep them safe, provide innovative solutions to challenges faced, and make their lives easier. The digital age does require increased adaptability by officials to ensure that rights and obligations are met, while also being agile stewards of the collection, use and sharing of personal information.

 

Context

The Canadian Victims Bill of Rights (CVBR) provides rights for victims of crime at the federal level, which include the right to information, protection, participation, and to seek restitution. Unfortunately, victims and survivors of crime have shared with my Office on many occasions, that the Privacy Act has been cited as the reason they were unable to access information they needed, and they have felt it has interfered with their ability to exercise their rights under the CVBR.

Frequently, when seeking information about the offender who harmed them, victims are told by government officials that the offender’s privacy rights prevent disclosure. In the absence of clear guidelines, officials may misinterpret a law and regulations, which lack precision, and deny victims their right to information.

I am pleased that the Government of Canada is reviewing the Privacy Act. I would like to take this opportunity to bring forward the concerns victims and survivors of crime have shared with my Office in relation to the Privacy Act, and provide my recommendations on ways to address these issues.

While I understand that the focus of the exercise is on protecting privacy and restricting unauthorized sharing of personal information, the law also needs to recognize that there are circumstances under which disclosure of certain information is necessary due to the connection between offender and victim that the crime and the implications created.

I see the review as an opportunity to make a determination of when and how information about criminal cases and offenders may be shared with victims and survivors of crime, and to lay out clear regulations governing such disclosure.

 

Position

Having heard from victims about their concerns related to the Privacy Act, I believe it is time to revise its provisions to create a legal framework to regulate and give clear direction to the disclosure of information about criminal investigations and offenders by officials of all relevant federal departments to victims and survivors of crime.

Victims and survivors have frequently reported to my Office that the inability to access certain information to help understand and cope with the crime they have endured, contributes to their distress in the aftermath of a crime. It is my belief that Privacy Act must be amended to better respond to the needs of victims.

 

ISSUES FOR CONSIDERATION

Proactive registration of victims in federal corrections

As it now stands, victims of crime are not automatically registered or provided information about the offender who harmed them, upon a federal conviction (a sentence of more than two years).  The provincial criminal court system does not automatically share victim information with federal corrections authorities and privacy is used as the reason. Save for British Columbia where officials can ask for consent from victims on a form to share personal information with federal authorities, victims across Canada, who are generally unfamiliar with the criminal justice system and its complexities, must take the initiative to self-register with either the Correctional Services Canada (CSC) or the Parole Board of Canada (PBC). Many simply do not know that they must take this step. Further, the lack of information sharing between systems means many victims never get informed about their rights to access information about the offender as they serve their sentence or to contribute to conditional release decision-making. Despite having a quasi-constitutional right to information at every stage of the criminal justice process, victims of crime are expected to know their rights, ask for information and self-register with agencies who hold information about the offender who harmed them.   

Unlike the rights of accused persons, victims’ rights are not entrenched in the Constitution. Therefore, victims must rely on the goodwill of criminal justice and corrections officials to give effect to, or to implement, their statutory rights under the CVBR. Reality is that it falls to individual officials to deliver this information, with inconsistent results. The data shows us that many victims do not receive the information they may need to address their safety, security and other concerns in relation to the rehabilitation and eventual reintegration of the offender who harmed them. For example, if we look at corrections and conditional release data from 2018-19, we know there were some 23,000 offenders under federal responsibility. But, only about 8,500 victims were registered to receive information about their case[1].  

My Office believes that victims of crime must be proactively registered with the CSC and the PBC; recommending that victims be automatically registered with “opt in” and “opt out” choices, so victims and survivors can decide whether (and to what extent) registration is in their best interests and at what time. The response has been that proactive registration would violate victims’ privacy. I do not agree; nor do countless victims.[2] The fact that victims are not proactively informed about the need to register robs many victims and survivors of their right to choose whether or not to register to receive information about the offender who harmed them. In my view, this is not a victim-centered nor a trauma-informed practice.

It is my position that the issue of privacy in the context of proactive registration should be brought to the Privacy Commissioner for review and that the results of that review should be incorporated in relevant legislation, such as the Privacy Act and the Corrections and Conditional Release Act (CCRA) given that the CCRA informs CSC and PBC policies. The current federal policy is that it would violate a victim’s privacy to contact them about the offender who harmed them or about their rights, such as the right to participate in hearings or express concerns about their protection. It is my view that this interpretation violates the spirit of the CVBR and reinforces barriers to the implementation of victims’ rights.

Access to information by registered victims when an offender is transferred to CBSA custody awaiting removal proceedings

When an offender serving a federal sentence is transferred from the custody of the Correctional Service of Canada (CSC) to that of the Canadian Border Services Agency (CBSA), registered victims are no longer provided information about the offender who harmed them. Victims report being told that privacy legislation prevents CSC officials from sharing victims’ information with CBSA, while at the same time preventing CBSA officials from disclosing information about the offender to the victim.

In the past, the CBSA has released offenders from custody while awaiting a removal hearing. As it stands currently, victims are not informed when this occurs. This can be highly problematic for victims, who may fear for their safety. Ensuring victims are informed about the offender’s release is critical in order for them to be able to take any necessary precautions. Failing to inform victims renders them even more vulnerable. The Privacy Act can be strengthened to allow agencies such as CBSA to share information with registered victims about the offender who harmed them, ensuring that their right to information under the CVBR can be respected. This is an example of how the Privacy Act, as it is currently, appears to be in conflict with the intent of the CVBR.

This type of transfer of custody can also be a problem for particular victim groups, such as victims of fraud. The justice system provides scant assistance to victims seeking the legally ordered restitution they are owed, and offenders can be released without having fulfilled the restitution order that is part of their sentence. In fact, a victim’s interest will not always be in having an offender removed, as it may be in a victim’s best interest to have an offender remain in Canada, in order to fulfil a restitution order[3]. As it stands currently, victims are not informed of removal proceedings as doing so would violate the Privacy Act. Therefore, victims are unable to exercise their rights to information and participation under the CVBR by receiving information about the offender who harmed them, and providing a victim statement to be considered during removal hearings.

An important first step in addressing this problem could simply be to add a clause to the victim registration form acknowledging that the victim gives their consent for information to be shared with other agencies for specific purposes.

My Office recently made recommendations[4] noting the need for amendments the Corrections and Conditional Release Act and the Immigration and Refugee Protection Act to:

  1. Provide victims with information (notification of hearings given it is a public process);
  2. Consider victim safety concerns when making decisions; and
  3. Inform victims if an offender is released on an immigration release into the community.

Access to information pertaining to criminal investigations

Some relatives of homicide victims have expressed frustration at being denied access to information about their deceased loved ones that is contained in police files (i.e. details of their loved one’s passing), as having the entirety of information is very important for their healing.

Currently, according to the Royal Canadian Mounted Police (RCMP) website, “Personal information can be released if an individual has been deceased for 20 years or more. You must provide reasonable proof of death. In cases where a person has been dead for less than 20 years, only the executor or administrator of the estate, or liquidator of the succession may request the personal information.”[5] This is consistent with the Privacy Act. However, the Act does not provide an explanation for why this information should not be accessible and fails to take into account the special circumstances of victims and survivors of crime; in particular, those who have lost immediate loved ones to murder or manslaughter.

While it is understandable why certain information may not be released, such as information which may jeopardize the conduct of an ongoing police investigation or the criminal justice process, or may put someone at risk of harm, files that have been closed because a conviction has been entered should be accessible before twenty years has passed. It is important to note the CVBR states, “Every victim has the right, on request, to information about the status and outcome of the investigation into the offence...”[6]

I believe that the policy cited above and, consequently, the Privacy Act, is in conflict with the provisions of the CVBR, and can cause grieving family members additional trauma.

In my view, in cases where a person is deceased there is a strong argument to be made for a surviving family member to have access to information relative to the manner of death of the deceased person—before twenty years have passed, especially where the police investigation is completed.

Information sharing between federal and provincial/territorial agencies

Victims and survivors have shared concerns with my Office regarding the lack of information available to them once the offender who harmed them is released or transferred out of federal custody. 

When an offender is transferred from federal to provincial custody, information about the offender is shared between the agencies at both levels of government; however, information about victims is not. Victims must self-register again with the provincial authority to receive information. This means they may miss receiving important information about the offender’s whereabouts, and must revisit the traumatic circumstances and navigate another system in order to re-register. I truly believe that this is an unnecessary burden on victims.

Victims and survivors have shared with my Office the need for a more proactive approach to managing the transfer and sharing of victims’ files, when offenders are released or transferred out of federal custody. Also of note, victims have expressed that when federal level victim services are no longer available to them, they are forced to navigate a new system at the provincial level, establishing new contacts, often re-telling their stories, and re-building relationships. This can be incredibly re-victimizing, not to mention confusing and frustrating. My Office has previously recommended that victims be connected (with consent) with a contact at the provincial/territorial level and work to ensure a seamless transition between the federal and provincial jurisdictions to help alleviate any victim anxieties.

In my view, just as victim registration should be proactive (i.e. automatic) when an offender is transferred from the federal to the provincial system, information about the victim should be transferred automatically as well, and provincial officials should be prepared to provide victims with information. This would require a collaborative approach between federal, provincial, and territorial levels of government.

As noted above, a victim can be asked at the time of reporting a criminal offence to the police to give their consent for their information to be shared with other criminal justice authorities for specific purposes, including to receive information about the offender who harmed them. A collaborative approach that spans across jurisdictions is necessary to ensure victims of crime can access the information they need for their safety and security.

Information sharing between federal and community-based agencies working in the interest of survivors of sexual violence

The issue of sexual violence is serious, and I believe external reviews of sexual assault cases are an important step in improving outcomes of cases, while recognizing that there is a need to make our criminal justice system more victim-centered and compassionate. The 2014 General Social Survey revealed that, compared to physical assaults, sexual assaults were far more likely to drop out of the justice system between police and court: 75% of physical assaults proceeded to court after being charged by police in Canada, while only half (or 49%) of sexual assaults did. And, only about 1 in 10 (or 12%) of sexual assaults reported to police led to a criminal conviction, and only 7% resulted in a custody sentence.

External reviews help address very high rates of unfounded sexual assaults, which the Globe and Mail ‘Unfounded’ investigation in 2017 revealed that the police across Canada dismiss 1 in 5 complaints. External reviews engage advocates with expertise on violence against women, frontline survivor support workers and legal experts to review police decisions on violence against women cases and work in partnership with police to address investigative gaps and systemic barriers to justice.

External reviews also help increase public trust in our justice system. Sexual assault is the most underreported crime in Canada, often because of the barriers that make victims and survivors disinclined to report the assault.

Some of these barriers include societal attitudes, dismissal of the crime, or personal and potentially dangerous repercussions, like the fear for personal safety if the perpetrator is not convicted or punished (which is what happens in most cases).

This risk is heightened for those who experience intersectional inequalities and discrimination. For example, the rate of sexual assault of Indigenous women is more than three times the rate for their non-Indigenous counterparts. Immigrant and refugee women, women of colour, and the 2SLGBTQQIA community are also particularly vulnerable to sexual violence.

External reviews are a tool to help us become more responsive to victims’ needs, by contributing to strengthening policing, and by helping to improve our overall response to sexual violence, which in turn can help reduce some of the barriers that victims face in coming forward. 

As the RCMP creates Sexual Assault Investigation Review Committees across Canada, it is imperative that they are based on the Canadian Framework for a Collaborative Response to Sexual Violence. The federal Privacy Commissioner, Daniel Therrien, has said that framework does not violate the federal Privacy Act.  Our Office has received complaints that the RCMP SAIRC process is too secretive. Advocates feel it is more of an internal process, a closed system that has very little transparency, if at all.

According to a recent CBC report[7], in March 2020, the RCMP Headquarters ordered Yukon RCMP to shut down the Yukon Advocate Case Review, which had been set up in 2018 to examine sexual assault cases that police labelled unfounded. Officials cited privacy concerns as the reason for this decision. Victim advocates and those involved with the case review process have expressed that they feel the privacy concerns are baseless, and are concerned that such a decision prevents transparency. Members of the Yukon review process signed non-disclosure agreements that allowed them to speak about issues raised by the review, without violating the privacy of victims. Women's groups and the Yukon RCMP reviewed around 80 cases before the RCMP pulled the plug.

The above example is consistent with the types of concerns my Office hears from frontline antiviolence advocates, victim service workers and survivors – that the Privacy Act is often cited by federal officials to prevent transparency and accountability. Given that the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls also calls for increased public oversight of police handling of sexual assault cases, the Privacy Act must not be used as an excuse to prevent transparency within federal agencies such as the RCMP.

Recommendations

  1. Establish a framework within the Privacy Act to regulate the disclosure of information about criminal investigations and offenders by officials to victims and survivors of crime.
  2. Establish a framework within the Privacy Act to regulate the sharing and disclosure of victim information between criminal justice authorities at the F/P/T levels.
  3. Ask the Privacy Commissioner to study the issue of proactive registration of victims of crime and provide guidelines to federal agencies on how best to serve the needs of victims without violating their privacy. One part of the study should consist of stakeholder consultations, where the views of a broad selection of experts, including victims/survivors, are sought.
  4. Develop a set of guidelines and policies to inform public servants, including officials at CSC, PBC, CBSA, and RCMP on what and how information may be disclosed under the privacy legislation and to whom, and ensure proper training is provided to all employees on how the privacy legislation is to be applied in the context of victims’ rights to information

 

Considerations

I would like to highlight the importance of federal/provincial/territorial open communication and collaboration. This is particularly important in the context of the administration of justice, as there is a great deal of overlap between federal and provincial agencies. Breaking down the silos means providing better service to Canadians.

 

Conclusion

It is my fervent hope that the government of Canada will take advantage of this opportunity to amend the Privacy Act to consider the needs of victims and survivors of crime. It is of the utmost importance this review is done with consideration as to how it relates to the CVBR, and victims’ rights to access information regarding crimes committed against them and their loved ones.