Ontario Criminal


Criminal Law

Charter of Rights and Freedoms

Life, liberty and security of person [s. 7]

Trial judge erred in holding that s. 7 of Charter was infringed

Detective pretending to be 15 arranged to meet accused after replying to accused’s Craig’s List ad seeking men under 35 wanting fellatio. At lead investigator’s request, documents from accused’s vehicle indicating he was HIV positive were used to prepare media release (release) with accused’s name, address, occupation, church affiliation and HIV status. At trial, accused admitted luring but sought stay under s. 24(1) of Canadian Charter of Rights and Freedoms on basis of, among other things, breach of rights under s. 7. Trial judge found accused guilty of luring and held, among other things, that release violated s. 7 because disclosure of medical information was not authorized or permitted by Municipal Freedom of Information and Protection of Privacy Act or Police Services Act (PSA). Trial judge dismissed application for stay, finding no evidence release aggravated consequences of accused being charged with luring, no evidence to support conclusion that indiscriminate and unlawful disclosure was ongoing institutional problem, and that prejudice suffered by accused could be addressed by stern rebuke and reduction of sentence. Accused appealed dismissal of stay application; Crown appealed sentence. Appeal from conviction dismissed; appeal from sentence allowed. Trial judge erred in holding that disclosure of HIV status in release engaged and infringed s. 7. Section 7 protection against deprivations of or intrusions upon personal security was not absolute. State conduct had to have serious and profound effect on psychological integrity. Trial judge’s holding that s. 7 was engaged and infringed anytime police violated individual’s reasonable expectation of privacy by unlawfully circulating individual’s private medical data did not reflect controlling standard. Finding was at odds with factual conclusion that release would have no effect on accused’s career independent of effect of luring charge. Real issue was not whether actions of police were authorized or prohibited by statute but whether release met threshold of serious and profound effect on accused’s psychological integrity. There was no evidence chief or designate authorized disclosure or reasonably believed accused posed risk of harm to others and that disclosure would reduce risk. Disclosure of HIV status in release about arrest was not so disconnected from law enforcement concerns over existence of potential victims as to render disclosure unreasonable violation of accused’s security of person or informational privacy.

R. v. Gowdy (2016), 2016 CarswellOnt 20589, 2016 ONCA 989, David Watt J.A., G.J. Epstein J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2014), 2014 CarswellOnt 15706, 2014 ONCJ 592, M.S. Block J. (Ont. C.J.). (Ont. C.A.); varied (2014), 2014 CarswellOnt 18004, 2014 ONCJ 696, M.S. Block J. (Ont. C.J.).

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