Legal experts troubled by trend of withholding names in crimes
Authorities say they’re simply obeying privacy laws, but legal experts argue practice prevents people from scrutinizing criminal-justice system
It has been a week since a man died following a police shooting at the Departure Bay ferry terminal in Nanaimo. We know from the RCMP that the victim was a suspect in a carjacking in Penticton and a shooting in Vernon, and that officers tried to arrest him as he drove off the ferry last Tuesday morning.
Beyond that, we know very little about the man.
We don’t know his name, age, where he’s from or how he lived his life.
That’s because the RCMP, BC Coroners Service and the Independent Investigations Office, which probes fatal interactions with police, all have declined to identify the man. In that, he’s not alone. It’s an increasingly common, if inconsistent, practice across B.C. and other jurisdictions in Canada, in which agencies tasked with investigating violent deaths have, in some cases, stopped releasing victims’ names.
Legal experts say it’s a trend that prevents Canadians from scrutinizing the criminal-justice system and the people who operate within it.
Law-enforcement agencies and others argue they’re simply obeying privacy laws and respecting grieving families.
In a statement, RCMP spokeswoman Sgt. Janelle Shoihet said the RCMP is bound by the Privacy Act and cannot release a victim’s name unless the information is already publicly available, such as when someone has been charged; when information is required to further an investigation; or when public interest clearly outweighs any invasion of privacy — for example, if the public is at risk.
The Edmonton Police Service has taken a similar approach, choosing in some cases to withhold a victim’s name, arguing that releasing it “does not serve an investigative purpose and the (service) has a duty to protect the privacy rights of the victims and their families.”
Steven Penney, law professor at the University of Alberta, said it’s a “troubling” practice that departs from Canada’s long-standing tradition of having an open, transparent and accountable criminal-justice system.
“As far as I know, that tradition has always included releasing the names of those who have been accused of serious crimes and those who have potentially been victimized by those crimes,” he said.
Penney said specific laws prevent identifying certain people, such as young offenders or victims of sexual violence.
“But I think it’s a very different matter when you have individual police agencies making these kinds of decisions on a caseby-case basis without disclosing their reasoning or rationale and without having any degree of consistency in application across jurisdictions.”
The Vancouver Police Department, for instance, takes a different approach than the RCMP and always releases the names of homicide victims.
“The VPD releases the names of homicide victims for a number of reasons,” the department said in a statement. “We never want to live in a society where someone can be murdered in secret.”
The department said identifying victims can assist in maintaining public safety, alleviating fear and solving crimes.
“Homicide victims are not able to speak for themselves, and we hope by sharing details of the offence we will generate tips that could lead to the identity of those responsible for the death.”
Vancouver police typically don’t release the names of victims in police-involved shootings, since the IIO usually takes over the investigation and would make that decision.
The IIO, however, says it does not release the identities of anyone involved in its investigations, which includes the person killed or injured, witnesses or subject officers.
The agency’s chief civilian director, Ron MacDonald, said this is required under B.C.’s Freedom of Information and Protection of Privacy Act.
He said that while the name might not always be released, the facts of the case are eventually made public, either through the criminal-justice system or through the public reports filed to conclude cases where there’s no wrongdoing.
“So absolutely nothing is swept under the rug,” he said. “This whole organization is based on the principles of transparency about the facts of the case.”
A similar policy on the release of names has been adopted by civilian police-oversight bodies across Canada.
“We release all the relevant information to allow the public to understand what happened,” says a joint letter signed by the civilian directors of police-oversight agencies in Ontario, Manitoba, Nova Scotia, Alberta and B.C.
“Knowing the injured or deceased person by name, instead of as ‘the affected party’ or ‘complainant,’ adds nothing of additional relevance.”
But Douglas King, a former police-accountability lawyer with Pivot Legal Society, said B.C.’s privacy law likely gives too much deference to police and other agencies to determine what’s in the public interest.
“I think most people would argue that — especially with police-involved shootings — it certainly is in the public interest to know who has been killed by the state,” he said. “Ultimately, the greatest exercise of power that you can have in our society is a state-sanctioned killing.
“It’s certainly, in a democracy, in the public interest to know when that has happened (and) who it’s happened against.”
King, who is now executive director of the Together Against Poverty Society in Victoria, said that the IIO has an interest in withholding information to avoid public attention and scrutiny.
“The IIO has had a bit of a rough ride the first five years of its existence and plenty of scrutiny thrown at them for how they do their investigations,” he said. “They certainly have an interest in keeping things tight and close to them so that the public doesn’t starting asking questions about what they should or should not be doing.”
The BC Coroners Service also cites privacy law as the reason it stopped releasing the names of people whose deaths warrant an investigation, which typically occurs when a person’s death is unnatural, unexplained or unexpected.
The coroners service routinely released people’s names until 2017, when it initiated a review of its information-release policies. The review was sparked by a recommendation from the Office of the Ombudsperson as part of the Misfire report, which looked into the wrongful dismissal of Roderick MacIsaac, an employee with the Ministry of Health who took his own life after he was fired.
The Coroners Act prohibits the release of a person’s name during an active investigation, said B.C. Coroners Service spokesman Andy Watson.
An exception is made if releasing the person’s name is necessary to further the investigation or if the person’s family gives permission. Names are also released if the case has previously been in the public eye, such as a high-profile missing person’s file, Watson said.
According to the Privacy Act, information must be disclosed if it is “in the public interest.” But the definition of “the public interest” is entirely subjective.
“It’s not just that the public is interested, but that it’s in the public interest to share that information,” Watson said. “The chief coroner has a pretty high standard of what determines that.”
Penney disputed the “creeping” idea that privacy law necessarily trumps all other rights and values.
“I think in the case of crime and allegations of crime, that’s completely backward,” he said. “That’s wrong.
“Our entire criminal-justice system is premised on the idea that when a serious crime occurs, it’s a crime against the entire society. And the entire society deserves to be informed about the implications of that crime and potentially become involved in scrutinizing the behaviour of all of those who are responsible for dealing with it.
“So I fundamentally disagree with this idea that it’s up to coroners, it’s up to the police, it’s up to bureaucrats and lawyers, to decide, at their own whim, according to their own internal criteria, as to what’s in the public interest.”
There were four known homicides in the South Okanagan last year. In only one of those cases did police publicly identify the victim.
Even more troubling is that police didn’t reveal one of the homicides until a yearend interview with a local news outlet — eight months after the fact.