Durham Regional Police Denounced in New ONCA Ruling on Breaching Confidentiality

No Good Deed Goes Unpunished

Just when you thought you’ve done the right thing in reporting serious crime to the police, you find yourself thrown into a matrix of fear, threats, and potentially physical reprisal.

That is exactly what happened to Margaret Stack in Nissen v Durham Regional Police Services Board, 2017 ONCA 10, when she discovered that her former babysitter and neighbour had stolen guns in a home robbery and was threatening people with the weapons. Like any responsible member of a community, Ms. Stack—aware of the seriousness of gun violence—reported this information to the police. Ms. Stack gave a statement to police on the condition of anonymity and it was a finding of fact that the Durham Police Officer she spoke with did in fact promise that her name would not be revealed.

Unbeknownst to Ms. Stack, the statement was not only videotaped but was later included in the Crown disclosure package sent to the defendant when he was subsequently arrested and charged with weapons offenses.

The saga of the Good Samaritan took an ugly turn once the disclosure package was handed over. From that point onward, Ms. Stack was subjected to threats and intimidation by the now accused former babysitter, his brother, and his parents who lived directly across the street.

To put it lightly, the accused and his parents did not appreciate the police becoming involved in the investigation of criminal acts based on information from Ms. Stack. In one harrowing incident, the father of the accused drove his truck toward Ms. Stack in a possible attempt to run her over, but she was able to narrowly escape injury. Following numerous incidents of threats and intimidation, Ms. Stack sold her home and moved away from her neighbourhood in Ajax, Ontario.

Breach of Confidence and Damages

In short order, a civil claim was commenced against the Durham Regional Police for a breach of a promise of confidentiality. The videotaped evidence showed assurances from the Durham Police Officer who interviewed Ms. Stack that her identity would not be revealed. Ms. Stack claimed her damages as a result of this incident were due to the constant feelings of hopelessness, depression, and fear. She was later diagnosed with post-traumatic stress disorder (PTSD). The lower court found in favour of Ms. Stack, and awarded her and her family substantial damages of over $450,000.

In its appeal to the Court of Appeal for Ontario (“ONCA”), the Durham Regional Police Services Board made several key arguments. For instance, they stated that even if there was a breach, Ms. Stack’s claim for damages was inadequate and should be rejected. Specifically, the Durham Police made the outlandish argument that Ms. Stack’s psychological trauma was not due to the frightening events that occurred after her identity was revealed. Instead, they argued that it was due to a pre-existing condition of anxiety resulting from the breakdown in her relationship with the accused once he stopped babysitting her child, as well as her finding out that the accused had stolen guns and was threatening people. In essence, the Durham Police suggested that her legitimate fears for her personal safety and that of her family were not directly tied to the actions of the police.

Not surprisingly, the ONCA dismissed the appeal.

Setting the Tone

Some troubling aspects of this case stand out. First, it appears clear from the evidence such as the videotaped statement, that the police did promise Ms. Stack that her identity would be kept a secret. Not only was her identity revealed to the very people from whom she feared reprisal, but the police then turned around and denied that they had ever given her such a promise.

The unwillingness of the Durham Police to take accountability for their errors and, instead, outright deny that they ever promised Ms. Stack to protect her identity seriously undermines the integrity that we would expect of those called to serve and protect the community.

Is it any wonder that the relationship between police forces and certain communities is so strained? The very entity that Ms. Stack turned to in addressing crime in her neighbourhood was the one that turned its back on her when it came time to address a wrong against her.

What might have been an administrative oversight for the police officers—with the sharing of Ms. Stack’s identity via the disclosure—had life-changing ramifications for Ms. Stack and members of her family.

The ONCA was right to uphold the significant damage award in this case. Police departments should bear responsibility when they drop the ball like what took place in this case. The “snitches get stitches” code within criminal culture is allowed to flourish when you have a police department that effectively assists criminals in identifying and potentially silencing witnesses.

In the end, police set the tone for the type of relationship they hope to cultivate within communities. However, the starting point must always be transparency on the part of officers, especially when it comes to meeting the safety and confidentiality expectations of citizens. One obvious implication is that cases such as this diminish the motivation to help police in investigating and bringing to justice those that are committed to undermining established laws.

Ms. Stack’s faith in law enforcement has likely been irreparably damaged. Unfortunately, her story serves as a warning to the rest of us that helping police can be risky and come with unanticipated costs.