In the final days of 2016, the Ontario Court of Appeal released two decisions dealing with an unclear area of law regarding remedies for breaches of the Canadian Charter of Rights and Freedoms.  While this discussion is important and legally interesting, there is another aspect to one of these cases I find deeply troubling.

The Facts

Some basic facts of the case (R. v. Gowdy) are necessary:

Mr. Gowdy placed an ad on Craigslist looking for men who were interested in receiving fellatio.  The ad came to the attention of the police and the precise wording of the ad caused the police to question whether it was aimed at underage men.  A police officer posed as a 15 year old boy and responded to the ad.  Mr. Gowdy offered to perform fellatio on the boy and his friend.  He was ultimately arrested by the police and charged with luring.

All of this was conceded by the defence at trial.  It is what happened after the arrest that caused all the debate.

The police searched the Mr. Gowdy’s car and found a document showing that the appellant was HIV positive.  The police questioned him about his HIV status and demanded the names of his sexual partners.  Mr. Gowdy told the police that he had not engaged in risky sexual behaviour and had not had sex with partners without disclosing his status.   After this interview the police released his name, occupations, address, and church information to the media, along with the fact that Mr. Gowdy was HIV positive.

At trial, the judge found that the police had breached Mr. Gowdy’s privacy rights.  As a remedy, he reduced his sentence below the mandatory minimum sentence.  The Court of Appeal overturned this verdict finding there was no breach of Mr. Gowdy’s privacy rights.  In so doing, the Court made the following findings:

• Releasing Mr. Gowdy’s HIV fulfilled a legitimate law enforcement purpose;

• The nature of the offence being investigated and the circumstances of the commission itself in this instance could be sufficient to give rise to a public safety and law enforcement concern for other victims.

Some Commentary

The majority of the 132 paragraph judgment outlines why the police were largely justified in what they did and why Mr. Gowdy’s rights were not violated.  However, in one paragraph the Court stated that the actions of the police “clearly in retrospect were not advisable.”

This is very disturbing.   The allegation was that Mr. Gowdy had exchanged text-messages with a person he believed was underage and offered to perform fellatio.  There is little to no risk of contracting HIV by receiving oral sex from an infected partner.  There is no evidence regarding condom use.  Mr. Gowdy told the police that he was taking medication and had a very low viral-load.  There is certainly NO evidence at all to suggest that Mr. Gowdy ever had unprotected intercourse with anyone without disclosing his HIV status.  The only evidence was to the contrary.

The leap from the specific allegations in this case to the conclusion that there was a general risk to the public is enormous.  The fact that the police did not even consider any of these factors before disclosing highly sensitive medical information is shocking.  When there is a real risk, police perform a public service when they release relevant information to the public.  However, when the police want to reveal private information there must be some consideration for the rights of the accused person.  The risk to the public must be real.  The disclosure of the private information must be necessary to attenuate that risk.

Consideration for the privacy rights of legally innocent accused persons should always be a factor, but this is especially true when it comes to HIV/AIDS.  This illness remains one of the most stigmatized afflictions a person can suffer from.  Fear and paranoia still dominate many people’s perceptions.  We must demand better from our public institutions.  Legal issues regarding constitutional remedies aside, the Court of Appeal had the opportunity to stand up for an often extremely marginalized and criminalized community.  They had the opportunity to stand up for privacy rights and the right to disclose when and to whom you “out” yourself to.  The best they could do was to say that disclosing this information was not advisable, in retrospect.

This is not enough.  The Court should have confirmed the very high privacy interest in this type of information.  The Court should have directed the police to consider the privacy rights of the accused in all future press releases.  The Court should have taken more than one sentence to provide guidance to law enforcement and assuage the fears of the community of people living with HIV/AIDS.  They deserve better; we all do.