Supreme Court of Canada. (ANDRE FORGET/QMI AGENCY Files)
Ontarians have the right to know if a sex offender lives nearby, the Supreme Court ruled Thursday.
In a 7-0 decision, the Supreme Court upheld a lower court’s ruling that gave citizens the right to know how many sex offenders live in an area defined by the first three digits of its postal code.
The court said releasing this information doesn’t violate the province’s privacy laws, nor does it endanger the security of registered sex offenders.
The ruling doesn’t give citizens the right to know names, addresses, or other personal information of people convicted of sex crimes.
The case began when Ontario’s Ministry of Community Safety and Correctional Services denied an access to information request seeking the number of sex offenders living in certain areas in the province.
The Ontario government argued that releasing information in its registry would lead to the identification of sex offenders, who could become victims of vigilantism.
Ontario also argued that a confidential sex registry provides a stronger incentive for sex criminals to give up-to-date personal information.
Michael Petrunik, a retired University of Ottawa professor who specializes in dangerous offenders and social policy, said Ontario’s registry was created to be less public than other Canadian sex offender databases.
“The feeling was that (to make the registry public) wasn’t a wise thing to encourage citizens taking action into their own hands,” he said.
Despite Thursday’s Supreme Court ruling, Canadians could soon get their hands on the personal information of sex offenders if Conservative legislation passes.
Bill C-26 seeks to amend the Criminal Code and create a national, public database of “high risk offenders” that would include names and pictures of sex offenders and details of their crimes.
Release of sex offender data hailed as victory for transparency
Ann Cavoukian hopes Supreme Court decision will lead Ontario to ‘more open-government mindset’
The Ottawa Citizen
24 April 2014
Photograph by: Tyler Anderson , National Post
OTTAWA — Thursday’s decision by the Supreme Court of Canada requiring the release of information about the distribution of sex offenders in the province is a victory for openness and transparency, says Ontario’s information and privacy commissioner.
“I’m hoping this will lead the government, perhaps kicking and screaming, to a more open-government mindset,” Ann Cavoukian said in an interview. “We have a right of access to this information.”
In a 7-0 decision, the Supreme Court ruled that Ontario residents should be allowed to know how many of the province’s 7,400 registered sex offenders live near them.
The decision ended a lengthy legal battle between Cavoukian and Ontario’s Ministry of Community Safety and Correctional Services.
In 2009, Cavoukian’s office ordered the ministry to disclose a 14-page document showing the first three characters of Ontario postal codes (known as FSAs) in one column and the number of registered sex offenders living in each FSA in another column.
The information was requested by an unidentified journalist, who planned to publish an interactive map online.
According to material filed with the Supreme Court, an average of 24,843 people live in each FSA, ranging from a low of 396 to a high of about 114,000. There are 40 FSAs in the city of Ottawa.
The ministry argued that disclosure could reasonably be expected to identify the home addresses of sex offenders, prompting some, out of fear of harassment and vigilantism, to ignore their legal duty to register their addresses with the Ontario Sex Offender Registry.
That, in turn, could lead to new crimes, endanger life and safety and hamper the control of crime, the ministry warned.
But in the interview, Cavoukian dismissed those arguments as “nonsense. They had nothing to base that on, yet they continued all the way to the Supreme Court.
“This wasn’t a privacy issue,” she insisted. “It was an issue of government transparency. This should be made available to the public. That’s what freedom of information is all about.
“Think of the expense that’s been incurred fighting this all the way to the Supreme Court,” said Cavoukian. “As a taxpayer, I object.”
The ministry appealed the commissioner’s decision to disclose the information but lost at the Divisional Court in 2011 and the Ontario Court of Appeal in 2012. The Supreme Court heard the ministry’s appeal last December.
The ministry argued that public access to information about the whereabouts of convicted sex offenders carries multiple risks, including social unease in the community, harm to people misidentified as sex offenders and harm to offenders and their families.
Though a partial postal code may not be enough to identify a registered sex offender by itself, the ministry contended, if connected with other publicly available information, members of the public could “build up data” that could allow them to locate registered sex offenders in some communities.
But Cavoukian’s lawyers told the court that “apart from its bald assertions,” the ministry offered no evidence supporting its claims.
The ministry also argued that the information commissioner’s order was inconsistent with Christopher’s Law, the 2001 statute that established the sex offender registry. That law, the first of its type in Canada, says information in the registry can only be disclosed to the ministry or the police.
In its decision, the Supreme Court flatly rejected the ministry’s arguments and concluded the Cavoukian “reasonably concluded” that Christopher’s Law does not contain a confidentiality provision that prevails over the province’s freedom of information law.
“The commissioner took into account the fact that the registry’s efficiency is based on its confidentially,” the court said. “However, she had to balance this concern with the public’s interest in having transparent and open governmental institutions.”
In striking that balance, the justices concluded, Cavoukian “decided that the risks suggested by the ministry were too remote and not supported by the evidence to ground a reasonable expectation of probable harm. This finding was reasonable.”
In her interview with the Citizen, Cavoukian said the Supreme Court’s finding that her office deserved judicial deference in the case was “huge,” because the ministry had also asked the court for deference and lost.
Following the court’s decision, Cavoukian’s office contacted a lawyer for Ontario Attorney General Madeleine Meilleur to encourage the release of the disputed record “as soon as possible.”
While the decision directly affects Ontario’s sex offender registry, it will not necessarily apply to registries in other jurisdictions, which may contain different provisions.
Link to the decision:
24 April 2014: (Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner) Supreme Court of Canada ruling on disclosure of numbers of sex offenders in given areas in the Province of Ontario