‘Privacy-thinking’ can’t be allowed to trump civil liberties

On Monday afternoon, dozens of police officers scrambled to chase down and apprehend a suspect after a woman was stabbed to death in Strathearn.

On Wednesday, police announced they’d tracked down and arrested a suspect in a hit-and-run accident that left a 15-year-old girl in hospital with serious injuries.

This is the kind of solid policing that gives our community a sense of security, a feeling the police are keeping us safe, and holding alleged wrongdoers to account.

Too bad the Edmonton Police Services’s corporate managers don’t seem to understand their jobs nearly as well as its frontline officers do.

For almost 18 months now, the EPS has been hiding behind a misguided, legally obtuse reading of Alberta’s Freedom of Information and Protection of Privacy Act, known as FOIP, in order to keep essential information from the public.

In Alberta, we all have privacy rights, even after death. But those rights are not absolute.

Section 32 of the FOIP Act is known as the public interest override.

That section of the act says that a public body cannot keep secret any information “the disclosure of which is, for any other reason, clearly in the public interest.”

It also says that a public body must disclose — without delay — any information about a risk of significant harm to public safety.

It frankly doesn’t matter what else the rest of the act says. It doesn’t matter if the family members of the victim or the accused want the matter hushed up. The public interest override is paramount — “despite any other provisions” of the act.

Yet police refused to release the name of the woman who’d died in Strathearn, arguing that because it was a domestic incident, it is none of the public’s business. Then, bizarrely, they refused to release the name of the man they’d arrested for killing her.

Wednesday, things got more surreal. Police initially refused to release the name of the 21-yearold suspect in the hit-and-run, citing vague “mental health concerns.”

This would have been a troubling precedent, given how many suspects have psychiatric issues. Once we let police decide whether to keep the names of those they arrest “private” on that basis, we could literally get to the point of secret arrests. (Happily, 45 minutes after this column was published online, police changed their mind and identified the suspect as Cuyler Maringer, 21.)

Sharon Polsky is president of the Privacy and Access Council of Canada and vice-president of the Rocky Mountain Civil Liberties Association.

“It smacks of a public body hiding behind FOIP laws in a way that certainly wasn’t intended,” Polsky said.

“If they’re getting legal direction that they cannot release the names, then I question the wisdom and correctness of that advice,” said Steven Penney, who teaches criminal law at the University of Alberta.

“It’s Kafkaesque and absurd to take such a very narrow, very risk-adverse, interpretation of FOIP. In my view, it is a departure from good public policy, a departure from years of past practice, and a departure from common sense.”

“Open courts are a basic tenet of liberal democracy,” said Penney. “I thought that was Civics 101. What we’re seeing here is the creep of privacy-thinking, until we have privacy run amok.”

Indeed, the spread of “privacythinking ” is putting our fundamental civil liberties and community values at risk, as more and more people adopt the view that privacy rights should trump Charter rights themselves. People keep writing to me that they don’t care to know the names of those who’ve been killed or been arrested. They simply trust in the police. But wilful ignorance takes us to the very dangerous point where we can’t hold the criminal justice system accountable.

A coda? My courthouse colleague Paige Parsons was able to learn the name of the woman who was killed in Strathearn on Monday: Bigue Ndao. She was 33. She was the mother of two young daughters.

According to media reports from Senegal, she was a member of Edmonton’s Senegalese community. So, too, was the man arrested in her death. Court documents identified him as Ahamdo Mbaye, 41. He’s been charged with second-degree murder. But even now that those names have become public in open court, the Edmonton Police Service continues to refuse to name the victim or the suspect in its news releases.

But Bigue Ndao deserves better than secrecy. She deserves to have the rest of us remember and mourn her. And we have a responsibility to ask hard questions about events that lead to her death.

She wasn’t a faceless cipher. She was a young woman who came to Edmonton for a new life, a life of hope and opportunity. She was robbed of that chance. Now, we owe her our attention. And our voices.