By Canadian Press

Privacy Act allows disclosure for inmate transfers, Mendicino said it restricts them

Jul 17, 2023 | 2:03 AM

OTTAWA — Soon after Canadians were told privacy law was preventing them from learning why notorious serial killer Paul Bernardo was moved to a medium-security prison, the federal privacy watchdog was reminded behind the scenes that there are ways around it.

Bernardo had spent nearly 30 years in a maximum-security prison — most recently the Millhaven Institution near Kingston, Ont. — before news broke that he had been transferred to La Macaza Institution in Quebec, a medium-security prison offering treatment for sex offenders, at the end of May.

Public Safety Minister Marco Mendicino, whose handling of the prison transfer has dogged him for weeks, has said that the Correctional Service of Canada, which was responsible for the decision, owes Canadians an explanation given the severity of Bernardo’s crimes.

But he has also said the Privacy Act was getting in the way of transparency.

“The Privacy Act and other legislation currently puts significant limits on what can be discussed publicly, including information surrounding specific inmate transfers,” Mendicino said in a statement on June 14.

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He added he wanted Philippe Dufresne, the federal privacy commissioner, to propose new procedures about sharing information with the public and victims in high-profile cases.  

Newly released emails show that got the attention of Dufresne’s office.

Bernardo is serving an indeterminate life sentence for the kidnapping, assault and murders of 15-year-old Kristen French and 14-year-old Leslie Mahaffy in the early 1990s near St. Catharines, Ont. 

He was also convicted of manslaughter in the death of Tammy Homolka, the 15-year-old sister of his then-wife Karla Homolka, who was released after completing a 12-year sentence for her role in the crimes against French and Mahaffy.

The day after Mendicino blamed privacy legislation for restricting what could be shared with Canadians, Dufresne was provided with notes prepared for him by his staff ahead of a meeting with Catherine Luelo, the chief information officer of Canada. 

They had been scheduled to discuss privacy-related matters. Mendicino’s comment was listed among topics to discuss. 

“This is shared in case you wish to give … an advance warning on our position vis-à-vis the minister’s statement … on the Privacy Act placing ‘significant limits on what can be discussed publicly’ about inmate transfers,” Dufresne’s chief of staff wrote on June 15, saying media lines and “factual information” about the law were attached. 

The Privacy Act “currently allows federal government institutions to disclose personal information in the public interest,” and says that such decisions must be made by the head of an institution on a case-by-case basis, the staffer wrote. 

The Canadian Press obtained the heavily redacted email through the Access to Information Act.

Vito Pilieci, a spokesman for the privacy commissioner, said Dufresne had requested information about legal provisions around disclosing public interest information, given Mendicino’s statement and the ensuing public debate.

Asked whether his office agrees with Mendicino’s statement that the Privacy Act places “significant limits” what can be publicized about inmate transfers, Pilieci repeated that it allows for personal information to be shared in cases it is determined “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.”

“To date, (Correctional Service of Canada) has not sought our advice with respect to this matter,” Pilieci said. 

The correctional service is currently reviewing its decision to transfer Bernardo, but in a response provided Friday, it did not address whether it sought out a way to provide the public with more information. 

“We do plan on communicating the outcome of the review as soon as possible,” said spokesman Kevin Antonucci. 

“Given the public interest, we can tell you that we plan to be transparent and open about this case, including sharing as much information as is possible in accordance with the Privacy Act.”

In a statement late Sunday, Mendicino’s office defended his position that the legislation puts “significant limits” on a government’s ability to share personal information, emphasizing how the law expressly says it must keep such matters private, without the consent of the person involved. 

It went on to say that in the case of Bernardo, only federal corrections has the power to apply discretion. 

“The commissioner of (the Correctional Service of Canada) is responsible for the administration of the (Privacy) Act as it applies to inmates in federal correctional facilities and has the authority to use the discretion in the Act,” said spokesman Alexander Cohen. 

“Minister Mendicino has encouraged (Corrections) to work with the Office of the Privacy Commissioner to explore what additional measures can be taken regarding the sharing of information with the public.”

Cohen added: “In particular, he’s asked that the upcoming review be as transparent as possible and share important information about this case with Canadians.”

Dufresne’s office said when it comes to victims receiving information about inmate transfers, a different law that specifically governs the prison system allows the federal corrections commissioner to exercise discretion. 

Tim Danson, a lawyer representing the French and Mahaffy families, has said neither he nor the victims’ loved ones have been given answers on why Bernardo was moved, with the correctional service citing Bernardo’s privacy rights. 

Danson has called for the service to provide more transparency. In a letter he emailed to commissioner Anne Kelly in early June, he inquired about whether the service looked for ways to do so, given provisions in the Privacy Act.

“Members of the public have a right to information pertaining to public institutions, without which public confidence in the integrity of the administration of justice will be undermined,” he wrote. 

This report by The Canadian Press was first published July 17, 2023.

Stephanie Taylor, The Canadian Press