• Graham James and the Privacy Act

    by Tyler Dellow • April 4, 2010 • Uncategorized • 6 Comments

    Leaving aside the issue of whether or not Graham James should have been granted a pardon, there’s another interesting question that comes out of this weekend’s news: why were the police discussing this with a victim of an alleged crime? And did they violate the Privacy Act in doing so?

    The Privacy Act defines “personal information” as follows:

    …information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved

    Generally speaking, you can’t disclose personal information:

    8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

    In this case, if you take the story at face value, this fellow was talking back and forth with the police about his abuse at the hands of Graham James and, somehow, it came up that James had been pardoned for his offence. (For those who don’t know what pardons are: basically it makes it so that your record won’t show up during certain searches. If you’re a sexual offender, your record will apparently show up if you’re getting the sort of search necessary to work with vulnerable people such as children.)

    On it’s face, this is a pretty straightforward breach of the privacy legislation and one that should be pretty easy for the Winnipeg Police Service to unravel – whoever was dealing with the alleged victim is probably the one who told him about the pardon. I’m no fan of Graham James but he’s entitled to the benefit of the law just like anyone else and, in this case, it appears that his privacy rights have been violated by the Winnipeg Police Service. It doesn’t really matter who he is, or what he’s done in the past – it’s not up to the WPS whether that information gets released.

    There’s a lot that’s really weird about this story. I’m sort of surprised at how specific the government’s response to this was. The story is right in the present government’s wheelhouse – they love looking tough on crime, particularly when it doesn’t cost money, something that could be done by tightening pardon rules so that people like Graham James aren’t eligible for pardons in the future. Then there’s this:

    The Canadian Press subsequently discovered that James was pardoned on Jan. 8, 2007. The pardon was signed off by Pierre Dion, a full-time member of the Appeal Division of the National Parole Board who also has a clinical psychology practice in Ottawa with court experience in child protection cases.

    From the Parole Board’s website:

    10. Who can divulge a criminal record?

    Under the [Criminal Records Act], only the Minister of Public Safety Canada has the authority to disclose information from a pardoned record.

    He would only do so in very exceptional circumstances if he is satisfied that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.

    I’m guessing that The Canadian Press didn’t “discover” the date of James’ pardon and who signed off on it in the sense that Fleming “discovered” penicillin – somebody told them in response to a question. That’s some pretty specific information – particularly the identity of the person signing off on it. I’d be very interested to know where that information came from – whoever provided it to CP seems to me (I don’t practice in this area and have not read any of the relevant authorities, if any exist) to potentially be in breach of the Act. Unless, of course, they happen to be the Minister of Public Safety.

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    6 Responses to Graham James and the Privacy Act

    1. April 5, 2010 at

      “only the Minister of Public Safety Canada has the authority to disclose information from a pardoned record.”

      The distinction being the existence of the record is not private, the information within it is. James might argue that if the parties knew the nature of the crimes he was convicted for, admitting the existence of the pardon would be a breach in itself.

    2. Aniz
      April 5, 2010 at

      I’m not sure the Privacy Act applies to the WPS, although the Personal Information Protection and Electronic Documents Act likely does. Either way, this certainly sounds like a breach of the Criminal Records Act if nothing else.

      I suppose it’s also possible that:
      a) the Minister has delegated the disclosure approval function;
      b) someone other than the NPB and James knew about James’ pardon (e.g., friends and family to whom James may have mentioned it) and blabbed to the WPS; or
      c) James was subsequently convicted of an offence, thus undoing the earlier pardon (though, if that were the case, you’d think the CP or PMO would have mentioned that.)

    3. Santiago
      April 5, 2010 at

      I think there is to much play with symantics. this is someone who clearly, not framed, created the most dispeciables crimes..sex crime against minors.

      Pardons are the issue here and we all SHOULD KNOW who has what record and WHY they are begin pardoned EVER.

      This is an outrage to all parents and anyone with any sense of justice, compassion and humanity. How dare the governemnt pardon. These acts merit total public disclosure ALWAYS.

      I ‘d hate you tell you how I would settle these OFFENDERS

    4. Chris
      April 5, 2010 at

      Sketchy’s got it right: the record of pardons issued is public knowledge, so there is no breach if the police told the person about it. They didn’t have to divulge the contents of Graham’s file because the individual already knew it (as most of us do).

    5. April 6, 2010 at

      The public should have the right to know when a convicted diddler is among us.
      F*ck the Privacy Act.

    6. Santiago
      April 6, 2010 at

      Correct Art V we both seem to be the ones who have any sense here so far.

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