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 MFIPPAand 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 PSAdid not authorize disclosure of the accused’s HIV positive status in the circumstances.
The exemption in s. 41(1.1) of the PSAauthorizes 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.