Confidentiality and the Ontario Sex Offender Registry: CSCS v IPC

In Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31 [CSCS v IPC], the Supreme Court of Canada (“SCC”) was asked to interpret the interaction between the Freedom of Information and Protection of Privacy Act, RSO 1990, c F31 [FIPPA] and Christopher’s Law (Sex Offender Registry), 2000, SO 2000, c 1 [Christopher’s Law]. This post will discuss two issues from the decision:

• Whether information contained in Ontario’s Sex Offender Registry (“Registry”), created by Christopher’s Law, can be accessed through the FIPPA; and
• The test that must be satisfied to trigger the law enforcement exemptions within the FIPPA.

In its decision, the SCC held that the Registry’s confidentiality will not be strictly protected.

Facts

The case involved a FIPPA request, to the Ministry of Community Safety and Correctional Services (“Ministry”), for “the number of offenders registered under [the] Registry residing within the areas designated by the first three digits of Ontario postal codes” (para 1). The Ministry denied access and refused to disclose the information, “citing [FIPPA’s] law enforcement and personal privacy exemptions” (para 13).

Previous Decisions

The Ministry’s decision was appealed to an Information and Privacy Commissioner (“Commissioner”). The Commissioner determined that the FIPPA applied to the Registry, and that “[t]he information sought was not exempted personal information because it was not reasonable to expect that an individual might be identified if the information were disclosed” (para 2). The Commissioner also decided that the “the … law enforcement exemptions … did not apply because … the evidence did not establish a reasonable expectation of harm or a reasonable basis for believing that any danger would result from the disclosure” (para 2).

The Ontario Divisional Court and Ontario Court of Appeal upheld the Commissioner’s decision.

The Supreme Court of Canada: Was the request inconsistent with Christopher’s Law or the FIPPA?

The Ministry argued that the Registry was immune from this inquiry for three main reasons:

1. Christopher’s Law contained a confidentiality provision that excluded the FIPPA;
2. Permitting disclosure is a matter of discretion, and in these circumstances disclosure is not warranted given the purposes of the FIPPA; and
3. The law enforcement exemption of the FIPPA applied to bar an inquiry in these circumstances.

Argument 1

This argument centered on whether Christopher’s Law excluded the Registry from the application of the FIPPA’s provisions. FIPPA’s provisions generally supersede the operation of confidentiality clauses in other provincial statutes. The Ministry, in this case, argued that a combination of statutory provisions displaced that supremacy.

The SCC rejected this claim. It found that “[t]he legislature [had] turned its mind to the interaction between the FIPPA and Christopher’s Law” because the FIPPA was explicitly referred to in the other statute (para 32). This fact, combined with the absence of an express exclusion, showed that the legislature intended the FIPPA to have supremacy and that the information gathered under Christopher’s Law was not entirely protected from a FIPPA request. This implication was reinforced by the way other provincial statutes explicitly subordinate the FIPPA.

Argument 2

Section 14 of the FIPPA permits the denial of an information request “where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; … (e) endanger the life or physical safety of a law enforcement officer or any other person; … [or] (l) facilitate the commission of an unlawful act or hamper the control of crime” (para 47). The Ministry claimed that an application of this law enforcement exemption necessarily involves a balancing between an informed citizenry and democracy (the purposes of the FIPPA) and effective policing and public safety (the purposes of the exemption).

According to the Ministry, this request promoted “neither democracy nor effective policing and public safety” (para 44). Instead, the Minister implied that this disclosure actually worked against policing since a violation of the Registry’s confidentiality would undermine its effectiveness. As a result, this exemption could, and should, have been used to bar the request.

The SCC also rejected this argument. “The Ministry in fact had no discretion to exercise s. 14 of the FIPPA … because … the exemption did not apply” (para 45). The information requested could not interfere with effective policing because it was unlikely that it could be used to identify any particular person. Thus, s. 14 was not engaged in the first place.

Argument 3

The Ministry also argued that the Commissioner interpreted s. 14’s purpose too narrowly. From its perspective, the Registry’s confidentiality was partly instituted to prevent general community unease and vigilantism. In other words, for the protection of the community and those who were registered. On that view, it was irrelevant that the requested information did not enable the identification of any individual. Releasing the general location of offenders would still increase unease and vigilantism, which in turn qualified this request for the exemption.

The SCC disregarded this claim. “[I]t was unsupported by the evidence and arguments placed before the Commissioner” (para 40).

The SCC also rejected a distinction the Ministry made in this specific argument; namely, that there was a difference between public identification, identification of the location of the sex offender’s residence, and location itself as an identifier. The SCC determined that

[t]o the extent that the Ministry [was] also arguing that the Commissioner erred by focusing only on whether the disclosure could reveal the sex offender’s personal identity, as opposed to also revealing his or her physical location, we are of the view that no such distinction can logically be sustained: locating a sex offender’s residence is intimately related to the sex offender being identifiable (para 42).

Thus, the FIPPA’s law enforcement exemption did not apply under this argument.

Decision

The SCC found the Commissioner’s decision to be reasonable and rejected all the Ministry’s arguments.

The Supreme Court of Canada: Under what circumstances can s. 14 be utilized?

The Standard

On this point, “the Commissioner held that the Ministry must provide ‘detailed and convincing’ evidence to establish a ‘reasonable expectation of harm’  [in order to engage s. 14] …  [E]vidence amounting to speculation of possible harm would not be sufficient” (para 48).

The Ministry argued that the Commissioner improperly applied too high a threshold, and that the correct test was “evidence to establish a reasonable basis for believing that endangerment will result from disclosure” (para 48).

This argument was firmly rejected. The SCC held that there was no practical difference “between ‘a reasonable expectation of probable harm’ and a ‘reasonable basis for believing’ that harm will occur” (para 51). While the former standard is used in an analogous exemption to the federal freedom of information legislation, both tests encapsulate the same idea: the statute is trying “to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence ‘well beyond’ or ‘considerably above’ a mere possibility of harm in order to reach that middle ground” (para 54).

As a result, the Commissioner’s determination of the standard was reasonable. Either formulation could be used since they are, in essence, identical.

Application

On the evidence offered, there was no such reasonable risk of harm. There was no reasonable way in which the information being requested could lead to an identification of a potential sex offender. Thus, there was no reason to apply the exemption.

Conclusion

This case provides clarity in two key ways. First, it shows that the confidentiality provisions in Christopher’s Law will not be applied strictly. The Sex Offender’s Registry falls within FIPPA’s scope. 

More specifically, this decision also holds that the test under the law enforcement exception of the FIPPA is the same as the equivalent test under the federal freedom of information statute. This provides clarity within the law of Ontario, and elsewhere. It shows that a court will likely read different language across comparable statutes in separate jurisdictions the same way. Thus, absent clear language to the contrary, a court will likely interpret “similar” provisions in provincial, territorial and federal freedom of information statutes in a uniform manner.