Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems

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Chapter 7 - Privacy

7.1 Challenges

The desire to improve information sharing between the criminal, family and child protection systems stems from the need for coordination and effectiveness when ensuring the safety and well-being of intimate partners, children and others. The objective is to compile information from among a range of sources, both criminal and civil, to ensure that the real risks are properly identified and assessed, and that appropriate measures are taken to promote the safety of victims and prevent the reoccurrence of future incidents of family violence.

Depending on the particular context (e.g. why the information was collected, what type of decision is being made and by whom) there are many pieces of information that may be relevant to share. For example:

• The fact that an offence has been alleged;
• The name of the victim or the accused;
• Alleged exposure of children to family violence;
• Breaches of orders;
• 911 or other emergency calls that have been made;
• Applications for emergency protection orders or peace bonds;
• An offender’s criminal records and history of violence;
• Assessment of the risk of an accused to family members or others;
• Court dates or sentencing hearings;
• Further offences committed by the accused;
• Alleged new threats against family members;
• Initiation of court proceedings (e.g. for divorce, orders related to children or support);
• Participation in and completion of programs such as partner abuse or substance abuse programs;
• Participation in family justice services such as parenting information, supervised access, mediation;
• The date of the release of an accused into the community (if they have been incarcerated);
• The victim’s contact information;
• Indicators of risk from other sectors (e.g. information gathered from police indicating alerts to escalating mental health status of the accused, indicators from mental health professionals, suicide attempts); and
• Other relevant risk factors.

Some of these pieces of information will be particularly relevant for the police to be aware of in terms of law enforcement and protecting victim safety. Police may want to know, for example about an upcoming family court application or date, as this may heighten risk to the victim. Some information will be particularly relevant for service providers in order to gain a full picture of the situation facing the family and to fulfill their respective mandates. It may be relevant for victim services in the criminal justice system to know about the services that family members are accessing on the family justice side, for example, supervised access or exchange, in order to help with safety planning. It could also be helpful for supervised access providers to know that the family member, whose access is being supervised, has been found to have breached protective orders.

However, efforts to improve information-sharing conflict with another important value – concern for privacy when intimate or confidential information is being held by local, provincial and federal public agencies, boards, commissions and corporations, victim services, police services, community programs, advocacy organizations, and health and other professionals. This value is supported by the Charter’s protection against undue interference with an individual’s reasonable expectation of privacy in section 8. According to the Privacy Commissioner of Canada, Jennifer Stoddart, privacy should be defined not merely as the passive right to be left alone, but rather as the broader “ability to control our personal information.”^{Footnote 304}

It goes without saying that people wish to maintain the privacy of information that constitutes the most intimate and personal details of their lives. This information includes for example: identification and contact information; psychological and medical assessments; genetic history, prescriptions and diagnoses; family background and social histories; encounters with police and correctional services; religious and political beliefs, associations and activities; information about sexual orientation and family status; children’s educational reports; and financial information such as employment records and income tax information.

There are important reasons for keeping certain information confidential.^{Footnote 305} In the case of health records, for example, fears of exposure of personal information could discourage people from seeking the very help which may in fact prevent violence from occurring. Revealing information may, perversely, further endanger someone whose safety depends on the ability to keep contact information and whereabouts secret. Moreover, the disclosure for collateral purposes of information gathered by the police could prohibit people from communicating freely in support of a criminal investigation.^{Footnote 306}

In Canada, there is a wide array of legislation, regulations, guidelines and codes of ethics across the federal provincial and territorial jurisdictions relating to privacy. In recognition of the importance of privacy to society, in 1995, the Canadian Standards Association adopted a voluntary national standard for the protection of personal information that addresses the way organizations collect, use, disclose, and protect personal information, and the right of individuals to have access to personal information about themselves.^{Footnote 307}

The key privacy issue relating to information sharing between the various sectors of the justice system relates to how protecting the disclosure of personal information is balanced against the use of this information to prevent risk and protect individual safety. At the court level, provincial and territorial statutes and Rules of Court govern the disclosure, discovery and production of private records. In addition, there is complex case law associated with the production of records from one proceeding to another. Discussion of these evidentiary issues is found in Chapter 6 of this report.

Many recognize, however, that privacy considerations can and should give way to a duty to share information when doing so would prevent harm to children and/or intimate partners. It should be noted that all provincial and territorial child protection legislation, without exception, requires anyone with information about a child in need of protection to report to the relevant agency.

All jurisdictions have access to information and privacy statutes that govern the collection, use and disclosure of personal information held by government agencies. In all cases, legislation permits information to be shared when the person it concerns provides their consent. When there is no consent, the release of personal information may be permitted when the public interest outweighs privacy concerns or when disclosure is necessary to protect health and safety, but often only in specified circumstances and sometimes with qualifications.^{Footnote 308} Access to information and privacy statutes also allow for the release of personal information when its use is consistent with the purpose for which it was obtained and this may offer some flexibility for community and public agencies to coordinate their efforts and share information under the overarching purpose of protecting their clients.^{Footnote 309} There is also the possibility for personal information to be obtained by way of a court order in the absence of consent.^{Footnote 310}

Professional groups – including medical professionals, social workers and lawyers – are guided on the disclosure of personal information by provincial or territorial statutes, by-laws or codes of ethics. For lawyers, codes of professional conduct govern the maintenance of confidential information and most authorize revealing confidential information in the face of imminent risk of harm to identifiable persons.^{Footnote 311} However, there remains confusion surrounding the circumstances in which information on risk can be disclosed in the absence of consent. While most codes of professional conductauthorize lawyers to reveal confidential information in the face of imminent risk of harm to identifiable persons, the advice in the commentary associated with the rules can suggest that such disclosures be limited to “very exceptional circumstances” and may make it difficult, in responding to imminent risk, to do so in a timely fashion.^{Footnote 312} Similarly, other professional groups, including medical professionals and social workers, are generally permitted by codes of ethics to reveal information if a client is in danger of harm (by oneself or others) or in danger of committing harm to an identified person or group.

It is worth noting that the various legislation, regulations, guidelines and codes of ethics related to privacy across Canada, allow but do not require personnel to share information even when there is an imminent threat of danger. Some have argued that there is room for governments to create a presumption in favour of the exercise of this discretion, a prima facie obligation to share^{Footnote 313} rather than withhold critical and relevant information in circumstances where health and safety may be at risk.

Unfortunately, however, without clear legislation, ministerial directives, memoranda of understanding or protocols about when personal information may be appropriately shared, cautious record holders may hesitate to disclose relevant, potentially lifesaving information, even when doing so would likely override privacy obligations. Indeed, in some cases, agency or department policies may direct personnel to refrain from sharing information although the legislation provides them the discretion to do so. This may be due, in part, to concerns about penalties for breaches of privacy rules.

7.2 Promising practices

This section provides examples of important information-sharing opportunities which have been hindered by privacy considerations, and the various initiatives that have sought to facilitate and enable disclosure when lives and safety are at risk.

7.2.1 Police providing information directly to victims or potential victims of family violence

Some information regarding an offenders’ incarceration and release may be provided to victims in efforts to ensure safety planning. For example, New Brunswick’s Victim Services Act allows for victims of provincially incarcerated offenders, or of those found not criminally responsible due to a mental disorder, to register for access to limited release information.^{Footnote 314} However, preventive information sharing from police to the public has been more restrictive. Current interpretations of privacy requirements and limited delegation of decision making can make it difficult for police and correctional services to release information about someone’s criminal record quickly in high-risk domestic violence situations. Limiting victims’ access to criminal records has been considered a barrier to constructing realistic safety plans or requesting appropriate custody and access orders, especially given the evidence that past criminality may be a risk factor for family violence.^{Footnote 315}

While basic information about pending charges and past convictions may sometimes be accessed by the public from criminal court databases or clerks, if someone reports threatening behaviour or actual assaults to the police, officers may not automatically disclose the records in their possession. Rather, an officer must make an assessment about whether to use the discretionary exception available under federal or provincial privacy legislation. Under the federal Privacy Act, the RCMP must ask whether the public interest in disclosure outweighs the harm associated with the invasion of the offender’s privacy.^{Footnote 316} Under most provincial acts and regulations, municipal or sometimes provincial police officers must ask themselves whether there are imminent health and safety concerns that require them to disclose past criminal records.^{Footnote 317} Furthermore, the information provided must be limited only to what is deemed necessary to avert potential harm.

It has been suggested that the disclosure of information about an individual’s past violent criminal record to potential victims of family violence may be seen as consistent with the purpose for which it was obtained, namely for police to assess risk and to protect the public from future harm from that person. From this perspective, it could be argued that officers would be able to release private information without overstepping their privacy duties. However, the release of information on such untested interpretive waters might leave police services hesitant.^{Footnote 318}

A 12-month United Kingdom pilot project that began in July 2012 and runs to September 2013 addresses this very issue. “Clare’s Law” gives police in select jurisdictions the direction to disclose to victims or potential victims of domestic violence information about their partner’s violent past. The initiative was launched in the name of Clare Wood, who was killed in 2009 by a violent ex-partner she met through Facebook. Despite several police complaints, Ms. Wood was never informed of her boyfriend’s history of domestic violence, which included repeated harassment, threats and even kidnapping at knifepoint. The project enables an individual to ask the police to determine whether their partner has a violent past. If the person has such a past, police will consider whether to disclose the information. The pilot will also examine how the police can proactively disclose information to prevent harm to an individual from family violence, in defined circumstances. Police will collaborate with the United Kingdom’s Multi-Agency Risk Assessment Conferences (MARAC) a cross-sectoral information-sharing forum for high-risk domestic violence cases. MARAC will advise police on the risk levels associated with a particular offender and will use its expertise to ensure that appropriate safety and risk-assessment procedures are followed when disclosing the information.^{Footnote 319}

7.2.2 Police and victim services

The police and victim services have an interest in cooperating in order to ensure that victims are made aware of and can access available services. These services can provide appropriate support to victim witnesses to strengthen prosecution efforts, and can also potentially assist them with family matters as well. Challenges, however, have arisen in providing victim information to victim services in order to ensure that victims receive appropriate services while also respecting federal privacy law. The RCMP and provinces continue to work towards resolving the issue of ensuring that referrals to victim services are made while respecting obligations under the Privacy Act. Prince Edward Island and New Brunswick have reported considerable progress in this regard over the past year. In 2011, the Saskatchewan legislature passed The Victims of Crime Amendment Act, 2011,^{Footnote 320} which now requires police to provide information about certain victims to victim services, even though consent was not obtained. This information is used to contact the victim for the purpose of providing or facilitating the delivery of victim services. In Alberta, police services (other than the RCMP) share information with the victim service unit without issue.^{Footnote 321} Manitoba is currently reviewing its Police Services Act^{Footnote 322} in order to ensure that privacy concerns do not impede the sharing of information by police with victim services.

7.2.3 Legislative changes

As mentioned above, legislation operates at every jurisdictional level and across various sectors to create and frame privacy requirements for government agencies, public institutions and, in some cases, for professionals. Privacy legislation generally permits the disclosure of personal information under appropriate conditions, as outlined above. However, British Columbia has recently gone one step further, by amending its Freedom of Information and Protection of Privacy Act (FOIPP Act) to clarify that it is appropriate to collect, use and disclose information for the specific purpose of reducing the risk that an individual will be a victim of domestic violence, if such violence is reasonably likely to occur.^{Footnote 323} Furthermore, new authorities in the Act enable public bodies to share personal information for delivering or evaluating a common or integrated program or activity.^{Footnote 324} In the years leading up to these changes in British Columbia, a number of reports from across various sectors strongly recommended improving coordination in domestic violence cases by amending the FOIPP Act to enable public bodies to disclose personal information proactively in appropriate circumstances.^{Footnote 325}

In Ontario, the Police Services Act^{Footnote 326} confers power for police officers to disclose personal information to protect the public or victims of crime, despite any other act. This exceptional power aims to reduce the reasonable risk posed by an individual who has been charged, convicted or found guilty of a criminal offence.^{Footnote 327} Further, personal information can be shared with “any person or agency engaged in the protection of the public, the administration of justice or the enforcement of or compliance with any federal or provincial Act, regulation or government program” once an individual is simply under investigation.^{Footnote 328}

With regards to children at risk of family violence, Alberta has introduced amendments to the Freedom of Information and Protection of Privacy Act which clarify that a public body has discretion to share information regarding a minor when disclosure is reasonably believed to be in the best interests of that minor.^{Footnote 329} Moreover, the Personal Health Information Act in Newfoundland and Labrador requires health care professionals to share information with police related to the safety of a child.^{Footnote 330}

7.2.4 Multidisciplinary collaborations

Increasingly, multidisciplinary collaborations are being formed which prioritize information sharing between agencies and programs in order to enhance their protective and supervisory role, even when the cases are not designated as “high-risk”. In the United States, for example, jurisdictions are encouraged to bring together individuals from a range of backgrounds to share information and coordinate for improved responses to violence against women. These structured collaborations, referred to as “coordinated community responses” (CCR), are required under the Violence Against Women Act in order to access grants and funding from the Office on Violence Against Women.^{Footnote 331}

New Brunswick has introduced two information coordination protocols in association with its Provincial Domestic Violence Court – Moncton. One protocol has been established between the Department of Social Development responsible for child protection and the Domestic Violence Court. These partners will jointly intervene in addressing incidents of family violence. In cases of domestic violence, key partners of the Court, including Police, Crown prosecutors, legal aid, probation officers, the victim service coordinator and the Department of Social Development, share information on the status of existing court orders and intervention plans, thereby fostering a coordinated response in cases of domestic violence. The goal is to promote more informed decisions, and to eliminate conflicting orders and the duplication of intervention programs. A second protocol involves the Department of Public Safety Probation Services, the Department of Health and Community Mental Health and Addiction services. By describing privacy obligations as paramount and setting out privacy safeguards, the protocol provides for an accelerated flow of information sharing to the probation officers on the status of services offered, recommendations for interventions and services being delivered to the offender.

In another example from New Brunswick, in 2011, a pilot therapeutic court was implemented in that province’s Elsipogtog First Nation. The mandate of the Provincial Healing to Wellness Court (HWC) is to address criminal behaviour associated with mental health or substance abuse issues. Family violence related offences which do not involve serious bodily harm or carry minimum mandatory sentences can be considered for eligibility into the program, subject to Crown prosecutor discretion. At the onset, a privacy protocol was established to guide information sharing between court personnel, case managers and project partners, including social service providers, provincial and federal prosecutions, law enforcement, victim services and counsel. The protocol informs personnel of their privacy obligations, clarifies the types of information that are considered private, indicates with whom it is appropriate to share information and for which purpose, provides a model consent form and a list of issues that should be addressed when seeking consent and specifies protocols for safely transmitting information.

7.2.5 High-risk case coordination

Coordination models also exist for especially high-risk domestic violence cases. Multi-Agency Risk Assessment Conferences (MARACs) are an example of a recently developed model in the United Kingdom. MARACs are regular meetings where information about high-risk domestic abuse victims (those at risk of murder or serious harm) is shared between local agencies, often including police, probation, independent domestic violence advisers, child services, health and housing. By bringing all agencies together at a MARAC, a risk focused, coordinated safety plan can be drawn up to support the victim. Over 250 MARACs are operating across England and Wales and Northern Ireland, managing over 45,000 cases a year.^{Footnote 332}

Canadian examples of high-risk case coordination involve protocols which facilitate and encourage the sharing of information among justice, child welfare and community agencies. By providing specific protocols between identified officials and agencies, and by determining desired outcomes, these protocols supplement the discretion which exists in provincial and other privacy legislation to share information in high-risk situations.

In Nova Scotia, a high-risk case coordination protocol was developed in response to a call for more proactive approach to family violence. Under the protocol, partners will share critical, high-risk developments, such as the release of the accused into the community, further offences, the breach of orders, emergency calls, applications for emergency protection orders or peace bonds, the approach of court dates or sentencing hearings and the initiation of legal proceedings related to children. Certain challenges are being addressed, such as the continued reluctance among certain agencies or community services to share information,^{Footnote 333} the inconsistent application of risk assessment tools across the province, and the need to tailor information appropriately for different partners. Also, in British Columbia,^{Footnote 334} there is a protocol for the highest risk domestic violence cases, which forms part of the Violence Against Women in Relationships (VAWIR) policy. The protocol directs agencies who have discretion toshare information under provincial privacy legislation to do so as a matter of practice, subject of course to legal and constitutional obligations.^{Footnote 335} The case update form designed to facilitate this sharing includes a notice about the strict confidentiality of the information being exchanged, directions regarding its safe storage and retention, and the appropriate use of the information, namely to protect health and safety.^{Footnote 336} Both of these protocols are also referenced in Chapter 2 at subsection 2.7.1.

In Ontario, justice-based domestic violence high-risk committees bring together justice sector personnel as well as community agencies, when appropriate, in an effort to manage cases identified as high-risk. The focus is on victim safety and offender management and permits the sharing of personal information permitted under the Freedom of Information and Protection of Privacy Act^{Footnote 337} when the information is shared by a justice participant with a community agency for a purpose consistent with the purpose for which it was collected.

In Québec, since 2001, following a high profile domestic murder-suicide case in which privacy considerations were seen as a deterrent to effective prevention, amendments were brought to laws, including the Act respecting access to documents held by public bodies and the Protection of personal information.^{Footnote 338}

7.2.6 Other practice models

Professionals such as non-government lawyers and social workers or medical professionals may have important information relevant to family violence which is often considered confidential. Without including them explicitly in information protocols or creating a duty for these private parties to report the abuse, efforts are being made to encourage such disclosure. For example, in Saskatchewan, child abuse protocols provide guidelines to different professionals, including child protection workers, school personnel, doctors and other health care providers, about what information can be legally shared with others in a position to help.

Especially when they have entered into an information-sharing agreement, agencies and their staff must continue to respect their privacy obligations. As such, certain best practices have been recommended for agencies working to support victims of family violence – even those bound by a memorandum of understanding or information-sharing agreement with other jurisdictions – in order to protect the privacy interests of those involved. These include:

• Developing sound record-keeping policies;
• Clearly identifying confidentiality obligations in relation to other members of the agreement and presenting a statement that the mere fact of collaboration does not alter those obligations;
• Maintaining a closed office and spatial boundaries so that clients are reassured that their information will remain protected; and
• Sharing private information in non high-risk situations only with clients’ consent and only after informing them about every agency that is part of the team, their role and purpose, any protections for information that is shared, the risks and benefits of sharing the information with the team, and about how team members coordinate their work.^{Footnote 339}

As evidenced in numerous death reviews and coroners’ reports or inquiries, timely information sharing between various sectors can be critical to averting tragedy. The models above demonstrate that safety can be prioritized without compromising privacy concerns.

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