New police powers trump privacy in Ontario
Police may demand confidential records without warrant
Updated November 11, 2019
The Missing Person's Act came to our attention via the CRPO's September 10 communique. Considering its far-reaching effects on our civil liberties and right to privacy, it has been passed very unobtrusively. When we informed the Ontario Civil Liberties Association, they replied “Thank you for alerting us to this concerning new provision, which we were not aware of”.
The Act requires anyone holding confidential records pertaining to a “missing person” to hand them over to a police officer upon demand. Why? Health professionals have always assisted in an emergency with any relevant information they might have (Do we know of anyone that might pose a danger to the person? Has she ever made a suicide plan? Etc.) It is part of our duty of care. The professional is quite capable of communicating any potentially useful information without handing over the files.
It looks as though this legislation is a reaction to recent criticism of the police. The preamble to the legislation claims that "the families and loved ones of missing persons have requested that the Government of Ontario enhance the tools available to police when attempting to locate missing persons". It notes "that sexism, racism, transphobia, homophobia, other forms of marginalization and the legacy of colonization are factors that may increase the risk of a person becoming a missing person".
To state the obvious, the families and friends of the gay men murdered by McArthur, the 500 missing indigenous girls and women, the native teens murdered in Thunder Bay, etc., have never complained that the police lacked the power to peruse their loved ones' private records; they complained that when informed that "marginalized" people appeared to be in danger or to have been the victims of foul play, the police failed to investigate.
Someone trying to make sense of the legislation suggested that perhaps some guardians of medical records have been unwilling to give information about a patient who is in danger out of a mistaken belief that privacy legislation forbids them from doing so. If this has been a problem, surely the appropriate way to deal with it would be an educational campaign through the colleges or even an amendment to the privacy legislation to spell it out.
Whatever the government's intention, the actual wording of the Act opens the door for any police officer to claim that any current or former therapy client is missing and demand to peruse their therapy notes (not to mention their bank records, internet use records, etc.). He can read about the client's most intimate thoughts and feelings, most embarrassing fetishes, most painful perceived failings, and deepest family secrets.
I think we can assume that this will never happen to most of our clients; but no client can ever be sure that it won't. This undermines our whole enterprise. Our clients’ trust that what they tell us is confidential is fundamental to psychotherapy.
Some possible scenarios, intended or unintended
Abusive man to girlfriend: “If you move out I’m going to report you missing. Give the boys down at 54 Division something to chuckle about when they search your therapy notes for clues.”
A police officer calls on the home of a black teenager he thinks might have some information he wants; the parents, who don't want their son to be suspected of informing on a local gang, say they don’t know where he is. Then the officer gets to peruse his computer, his school counsellor’s notes and all his other private information. (He doesn’t even have to convince himself that the teen might be in danger—see below.)
A police officer who has developed a serious gambling problem realizes that there are opportunities for blackmail in missing persons, and targets a wealthy family with a mentally unstable member or a teenager with truancy issues.
Your client Robert Brown is misidentified as a Robert Brown the police are looking for.
These are just the tip of the iceburg.
What the legislation says
Urgent demand for records
5 (1) An officer may make an urgent demand in writing to a person requiring the person to produce copies of records, in accordance with subsection (6), if the officer is satisfied that there are reasonable grounds to believe that,
(a) the records are in the custody or under the control of the person;
(b) the records will assist in locating the missing person; and
(c) in the time required to obtain an order in accordance with section 4,
(i) the missing person may be seriously harmed, or [note the or]
(ii) the records may be destroyed.[so even if there is no danger of harm]
Factors to consider
(2) An officer shall not make an urgent demand unless the officer is of the opinion [!] that the public interest in locating the missing person outweighs the privacy interest of any person whose information may be contained in a record specified in the demand....
Duty to comply
(6) A person who receives an urgent demand shall, as soon as reasonably possible, produce copies of the records specified in the demand that are in the person’s custody or under the person’s control to a member of the police force.
The complete legislation can be seen at https://www.ontario.ca/laws/statute/18m03
What should we do?
This law creates an ethical dilemma for psychotherapists. Should we tell our clients despite the chilling effect it will have on some? Should we let them think that it is safe to tell us their most intimate secrets? Or should we refuse to hand over our notes and suffer the consequences of breaking the law?
If this legislation stands, it creates an extremely chilling environment for the practice of psychotherapy. It needs to be struck down or repealed, and meanwhile we need to get legal advice about it and support any practitioners who experience problems with it. Pushback against this law might also reduce its use/abuse and make more bad legislation less likely. If mental health professionals' organizations work together and co-operate with others who are concerned about the broader civil liberties issues involved, we can get this changed.
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