Request from murder victim’s family nixed
A murder victim’s privacy rights trump their family’s desire to learn more about how they died decades ago, Nova Scotia’s privacy commissioner has ruled.
The victim’s family took their case to the Office of the Information and Privacy Commissioner for Nova Scotia after the Department of Justice refused to hand over nine pages of information on the homicide including their deceased family member’s autopsy report and medical certificate of death.
“Being denied access to records related to a loved one’s death is difficult and frustrating for family members,” according to the recent decision from Tricia Ralph, the province’s privacy commissioner.
“However, in the circumstances of this case, the commissioner finds that releasing the responsive records would amount to an unreasonable invasion of a third party’s personal privacy and so they should not be released to the applicant.”
MOUNTIES SAY PROBE STILL OPEN
Her decision doesn’t identify the murder victim.
“The applicant’s family member was the victim of a homicide many years ago,” Ralph said.
“The homicide remains unsolved, and the Royal Canadian Mounted Police consider the investigation open.”
Justice Department officials refused to hand over the documents the family sought, noting that could harm the Mounties’ investigation, deprive the killer of the right to a fair trial if they are caught and that the documents contained personal information about the murder victim and disclosing them would be an unreasonable invasion of a third party’s personal privacy.
‘VITAL PART’ OF GRIEVING PROCESS
“Obtaining as much information as possible regarding the circumstances surrounding a family member’s death is often a vital part of the family’s grieving process,” Ralph said in the decision dated March 13.
“The applicant seeks to find justice for their deceased family member.”
The records they requested come from the Nova Scotia Medical Examiner Service, which is part of the province’s Justice Department.
The Justice Department “argued that there is still an ongoing investigation into the homicide of the applicant’s family member,” said the privacy commissioner.
‘CLOSED FOR DECADES’
“The applicant disagreed with the characterization of the (RCMP’S) investigation as being ongoing. The applicant said that the RCMP’S case has been closed for decades. The applicant said that the RCMP has been promising a review of the file and a followup since their initial discussions with the RCMP in late 2017. The applicant said that although they have given the RCMP information they consider to be new on several occasions, the RCMP refuses to confirm or deny this information.”
The victim’s family say the Mounties have not “provided any tangible evidence – employment records of officers working on the case, sworn statements by detectives known to be responsible for the file (three or four different ones since 2017) that they have spent ‘any time’ working on the file, or even a letter from head of major crimes indicating that a number of hours has been spent on the file – showing to us that it is an active file.”
‘VIRTUALLY NO POSSIBILITY’ OF CHARGES
The family “argued that in this context, their request for the responsive records is harmless to the police investigation. The applicant thinks there is virtually no possibility the RCMP will ever lay charges,” according to Ralph’s decision.
“On the other hand, the applicant said that the information on the responsive records would be helpful to their family in their investigation and in their pursuit of justice for their deceased family member. The applicant’s hope is that receiving the responsive records will help get charges laid.”
Mounties still consider this “an ongoing investigation,” she said. “The RCMP reiterated its ask that the responsive records not be released.”
Authorities are still offering a cash reward for information about the murder victim, Ralph said.
“In addition, I am mindful that there is no statute of limitations for the indictable offence of homicide in Canada. This means that a suspect can be charged at any future date should the RCMP proceed with charging a person(s) with the homicide of the applicant’s deceased family member.
‘TIPS COULD STILL COME IN’
She notes “the law enforcement exemption must be approached in a sensitive manner, in recognition of the difficulty of predicting future events in a law enforcement context. Tips could still come in and new investigative techniques could be used in the future to assist in the solving of the homicide.”
Ralph was “satisfied that there is an ongoing investigation into the homicide of the applicant’s family member, despite the length of time that has passed since their death.”
The Justice Department noted “that information about the cause of death and details of how a person died are frequently used as supporting and critical evidence to obtain a conviction at trial. The public body also explained that it does not have the rest of the RCMP’S file on this homicide. It worried that in this vacuum of knowledge, disclosure of the responsive records could release information that the RCMP believes would only be known to the person(s) who caused the death, which in turn, could jeopardize the RCMP’S investigation. It worried that information on the records “…could be used by someone to prevent the arrest of the person(s) who committed the crime if they knew what evidence had been collected about how [the third party] died.”
‘CLOSE TO SPECULATION’
While those “arguments verged close to speculation,” for the privacy commissioner, she agreed that releasing the records the family wants could harm the murder probe.
However, the Justice Department must “also demonstrate that it exercised discretion when making its decision to withhold the records,” Ralph said. “The public body did not do so in this case. It simply asserted that it had exercised discretion but did not explain what it had considered in making that determination.”
Ralph didn’t analyze the province’s claim that releasing the documents could harm the fair trial rights of anyone who might be charged with the killing in the future.
‘UNREASONABLE INVASION’
But she did buy the argument that handing over the murder victim’s autopsy and death certificate “would be presumed to be an unreasonable invasion of a third party’s personal privacy.”
Ralph empathized with the family’s “position that there should be some kind of method for the public to hold police and the (Public Prosecution Service) accountable in terms of whether they have adequately done their jobs. However, I don’t agree that release of the autopsy report or the medical certificate of death would add to the applicant’s understanding of the sufficiency of the RCMP and (the (Public Prosecution Service’s) investigation into the third party’s death.”
The murder victim’s relatives tried arguing “that because their family member is deceased, they should not have any privacy rights,” said the privacy commissioner.
“Although privacy rights diminish over time following a death, the dead do have privacy rights. This too weighs against disclosure.”
KILLED BY A GUN
The family say they know their relative was killed by a gun.
“This manner of death has not been kept secret from the applicant, the third party’s family or the general public. The applicant also said that they have learned what the ‘working theory’ is in terms of more specific information about the amount of gunshot(s) fired, angles, proximities and places. I cannot confirm or deny whether the applicant’s working theories are correct but it is clear that they are generally aware of the cause of death. Any additional specifics on the responsive records are likely to be critical to the successful charging and prosecution of the person(s) responsible for the shooting. If that information was released now, it could jeopardize that process.”