Public disclosure of medical information during military trial consistent with Privacy Act
Complaint under the Privacy Act (the Act)
January 15, 2020
A former member of the military filed a complaint against the Department of National Defence. The complainant alleged that he was wrongfully compelled to publicly disclose medical information during an open military summary trial as part of his defense in relation to a charge against him. Since the disclosure was testimony made as part of the trial proceedings pursuant to the National Defence Act, consistent with the open courts principle, and confidentiality was not requested, the disclosure was allowed under the Act. Accordingly, we found the complaint was not well founded.
- The Privacy Act applies to the public disclosure in this case because the summary trials are conducted pursuant to the National Defence Act by members of the Canadian Forces, which is subject to the Privacy Act.
- Under the laws of Canada, one of the underlying principles of the military justice system, like the civilian justice system, is that summary trials are public by default in accordance with the open court principle. The information was provided to the presiding officer for the purpose of conducting the trial, i.e. to determine whether a violation of the Code of Service Discipline has occurred, and was disclosed pursuant to the National Defence Act; therefore it can be publically disclosed under sections 8(2)(a) and 8(2)(b) of the Privacy Act.
- The main issue in this case was whether DND had required the individual to disclose his information to the public in the course of the summary trial in contravention of section 8 of the Privacy Act. However, we also note that once information is disclosed in an open court proceeding it becomes publically available under the meaning of section 69 of the Privacy Act, and the restrictions on further use and disclosure of the information under sections 7 and 8 of the Privacy Act no longer apply.
- In this case the individual did not request that the presiding officer of the trial consider providing confidentiality for his medical information under the rules of the court. We encourage government institutions to consider measures to ensure that participants in public hearings be advised, in advance, a) that information they disclose will be considered publicly available, and b) of any processes through which personal information may be protected from disclosure.
Report of Findings
Summary of the Investigation
- The Office of the Privacy Commissioner of Canada received a complaint under the Privacy Act (the Act) against the Department of National Defence (DND) in relation to the disclosure of the complainant’s personal information during a military trial.
- The complainant alleged that he was required to publicly disclose personal private medical information during a summary trial as part of his defense in relation to a charge set against him. The complainant alleged that since his request to be tried at court martial was declined, he was compelled to wrongfully disclose his medical information at the summary trial, which, in his view, constitutes a breach of privacy.
- DND submitted that summary trial proceedings are subject to the “open courts” principle, which generally requires that such proceedings and the material in the records before the court must be open and available for public scrutiny, except to the extent that the court otherwise orders.
- DND affirmed that individuals are entitled to attend summary trials unless confidentiality was sought and granted by the presiding officer. Since the complainant did not request confidentiality, DND advised that the presiding officer exercised his discretion in compelling the public disclosure of the complainant’s information. In DND’s view, there was no breach of privacy.
- After reviewing the evidence before us, we have concluded that the complaint is not well-founded. The reasons for this finding are outlined below.
- The National Defence Act (NDA) creates a separate and unique military justice system, including a two-tiered tribunal structure called summary trial and court martial as per Part III, Divisions 5 and 6 of the NDA, respectively. A member of the military charged with an offence that would normally be tried at a summary trial may be tried by court martial under certain circumstances. The military justice system shares several underlying principles with the civilian justice system.
- As provided in sections 163 and 164 of the NDA, summary trial proceedings are conducted by, or under the authority of, a presiding officer. The presiding officer may receive any evidence that he considers to be of assistance and relevant in determining whether or not the accused committed any of the offences charged and, where applicable, imposing an appropriate sentence.
- The Queen's Regulations and Orders for the Canadian Forces (QR&O) were promulgated under the authority conferred by section 12 of the NDA and have the force of law.
- In its section 108.28 the QR&O state that summary trials shall, with very limited exceptions, be public and members of the public shall be permitted to attend the proceedings as spectators. This section also provides discretion to the officer presiding at a summary trial to order that the public be excluded during the whole or any part of the trial if he considers it appropriate in certain circumstances.
- Pursuant to section 108.45 of the QR&O, an accused found guilty at a summary trial may request a review of the finding and the sentence.
Relevant Facts and Issues
- The complainant, a former member of the Canadian Armed Forces, stated that he suffers from a certain medical condition that resulted in absenteeism during his military career. Section 90 of the NDA establishes that unjustified absence to work constitutes an offence. The complainant was tried at a summary trial and convicted of unjustified absence to work, known in the military context as absence-without-leave (“AWOL”) offence.
- The complainant pleaded not guilty and advised the presiding officer that, due to the medical element of the offence, a summary trial was not the appropriate tribunal to hear the charge and that he must be tried at court martial. His request was declined.
- In order to defend himself, the complainant was therefore required to disclose personal private medical information in a public court during his summary trial. The complainant did not request confidentiality and the presiding officer did not clear the court to hear the medical information nor did he offer to hear the information in private. The complainant considers that there was a violation of his privacy.
- The complainant filed a request for review pursuant to section 108.45 of the QR&O on the basis that the presiding officer lacked jurisdiction to conduct the summary trial. The issue of confidentiality was not raised as part of the request for review. The review officer concluded that the presiding officer had jurisdiction to try the charge against the complainant and that the findings were appropriate.
- In its representations, DND submitted that summary trial proceedings are subject to the constitutionally protected “open courts” principle, which generally requires that such proceedings, the material in the records before the court and the resulting decision must be open and available for public scrutiny, except to the extent that the court otherwise orders.
- DND stated that its employees, Canadian Armed Forces personnel and members of the general public are therefore entitled to attend summary trials and all information provided as evidence to the tribunal is part of the public record unless confidentiality was sought and granted by the presiding officer.
- DND submitted that summary trial proceedings are the sole responsibility of the presiding officer. Neither the Minister of National Defence nor any person with delegated authority can overrule the decision of the presiding officer to impose (or not) limitations on the open courts principle, unless there is a request for review pursuant to the QR&O.
- DND further submitted that if the complainant had raised the issue of confidentiality during the review, the reviewing officer would have assessed whether the presiding officer at the summary trial had reasonably exercised his discretion in compelling the sharing of the information.
- According to DND, the Privacy Act cannot be interpreted in such a way as to compel the tribunal to abandon its own statutory purposes, nor can the Act override the constitutional principles that are interwoven into the open courts principle. DND is of the view that the department did not contravene the complainant’s rights under the Act.
Applicable sections of the Act
- In making our determination we considered section 8 and subsection 69(2) of the Act.
- The Act states that personal information under the control of a government institution can only be disclosed with an individual's consent – subsection 8(1) – or in accordance with one of the categories of permitted disclosures outlined in subsection 8(2) of the Act.
- Section 8(2)(a) states that a government institution may disclose personal information for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose.
- Paragraph 8(2)(b) provides that a government institution may disclose personal information for any purpose in accordance with an Act of Parliament or any regulation made thereunder that authorizes the disclosure.
- Pursuant to subsection 69(2) of the Act, sections 7 and 8 do not apply to personal information that is publicly available.
- The complainant raised as an issue that the summary trial was the wrong forum for the Canadian Forces to address the matter – leading ultimately to an inappropriate public disclosure of his personal information. Specifically, the complainant claimed that the presiding officer lacked jurisdiction to proceed by summary trial pursuant to article 108.06 of the QR&O (and in particular section 163(1)(e) of the NDA). The complainant submitted that his case should have been dealt with at court martial, which he contends would have prevented the disclosure of his personal information at summary trial. In a review requested by the complainant, the review officer concluded that the presiding officer had jurisdiction to try the charge against the complainant. In our view, this matter does not fall under the mandate of our office and should be addressed by way of judicial review.
- We refer to Thurrott v. Canada (Attorney General), 2018 which dealt with an issue similar to the one described above. In this case, the accused was similarly found guilty of an AWOL offence in a summary trial and sought review. The review confirmed the finding and sentence. He then applied for a judicial review of the Review Authority’s decision , pursuant to the Federal Courts Act. The applicant alleged that his case should have been referred to a court martial on the basis of subsection 163(1)(e) of the NDA.
Does the Privacy Act apply to the summary trial proceedings?
- As mentioned above, the summary trial process is established pursuant to the NDA. It sets a process for trying members of the Canadian Forces for alleged violations of the Code of Service Discipline (Part III of the NDA) as well as the QR&O. Pursuant to Division 5, section 163, summary trials are to be conducted by Commanding Officers, who themselves are members of the Canadian Forces.
- As set out in the Schedule to the Privacy Act, “the Department of National Defence (including the Canadian Forces)” is a “government institution” for the purpose of the Act. Consequently, in our view, the Act applies to summary trials conducted by members of the Canadian Forces.
- The inclusion of a court-like entity within the operation of the Privacy Act would not be an anomaly, as there are several administrative tribunals that have been specifically included in the Schedule. Examples include the Canadian Human Rights Commission, the Immigration and Refugee Board, the Military Police Complaints Commission, the Public Service Commission, and the Security Intelligence Review Committee.
Who made the disclosure of the personal information at issue?
- While it was the complainant who made the disclosure of his personal information in the summary trial, his complaint is about the disclosure to the public in the course of the summary trial, which he claims happened at the compulsion of the Canadian Forces.
- In this context, we understand the complaint as being that the Canadian Forces ultimately made his private information public in the summary trial by forcing him to disclose it in a public court. We are of the view that the complaint against the Canadian Forces is because they would be the ones who caused (or made) the disclosure to be public.
- As a result, the provisions on the disclosure of personal information by federal government institutions set out in section 8 of the Privacy Act would apply. Next, we analyse how these provisions are applicable in this particular case.
Was the disclosure made in accordance with the Privacy Act?
- In our view, the disclosure to the public of the complainant’s personal information during the summary trial is consistent with the disclosure provisions in the Act. Our position is consistent with relevant previous jurisprudence.
- In El-Helou v. Courts Administration Service, 2012, Mr. Justice Luc Martineau, sitting as the chairperson of the Public Servants Disclosure Protection Tribunal (the Tribunal), found that:
 The breadth and scope of the Act requires the Tribunal to conduct a proceeding that is transparent in nature. Similar to other quasi-judicial tribunals, this Tribunal receives personal information in the context of a tribunal proceeding. That information may include the Application, the statement of particulars, supporting documentary evidence, and testimony provided to it. That information fulfills a fundamental purpose: to allow the Tribunal to determine whether or not reprisal has taken place.
 In addition, the Tribunal is authorized by law to make this determination and it is master of its own proceedings. Therefore, the information that the Tribunal receives falls under subparagraph 8(2)(a); and subparagraph 8(2)(b) of the Privacy Act.
 … the Privacy Act does not “compel the Tribunal to abandon its own statutory purpose”. Nor can the Privacy Act override the constitutional principles that are interwoven into the open court principle. Due to the open court principle, personal information that this Tribunal manages, and which is received as part of its quasi-judicial functions, is publicly available.
- As mentioned earlier, the military justice system shares several underlying principles with the civilian justice system. One of these principles is that summary trials are required to be public by default. The complainant’s personal information disclosed to the public in this case was testimony received in the context of the summary trial proceedings in order for the presiding officer to issue a finding, which he is authorized to do pursuant to sections 163 and 164 of the NDA.
- We are of the view that in this context, sections 8(2)(a) and 8(2)(b) allow for the public disclosure, without the consent of the individual, of any personal information that may be provided to the presiding officer in the course of the summary trial to determine whether a violation of the Code of Service Discipline has occurred. We agree that as the complainant did not request confidentiality, when the testimony was provided during the public court proceedings, the information became publicly available within the meaning of section 69(2) of the Act.
- In light of the above, we consider that there was no contravention of the Act and we find this complaint to be not well-founded.
Disclosing personal information in court proceedings
- While we found no contravention of the Privacy Act as a result of our analysis, we would draw DND’s attention to our Office’s guidance on protecting the privacy of individuals in decisions of courts and tribunals that are published online.
- Specifically, we encourage DND to implement measures to ensure that participants in summary trials are made aware, in advance of a public hearing, that the information they disclose in these proceedings is considered publicly available, and are also aware of any processes through which personal information may be protected from disclosure.
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