Clare’s Law or Privacy Breach? Implications of New Domestic Violence Policy in Saskatchewan

In December 2016 the United Kingdom introduced The Domestic Violence Disclosure Scheme (DVDS) – also referred to as “Clare’s Law” after a landmark domestic violence case. The policy is nicknamed after Clare Wood, who was murdered by her former partner in Greater Manchester in 2009. Clare Wood did not know of her partners violent past, her family found out after her death that her partner had spent 6 years in prison for holding a woman at knife-point for 12 hours. The U.K.’s DVDS gives a person the right to ask police if their intimate partner could potentially pose a risk to them. A member of the public may also enquire about the partner of a close friend or family member.

On November 5, 2018 Saskatchewan Justice Minister Don Morgan introduced the Interpersonal Violence Disclosure Protocol (Clare's Law) Act. This made Saskatchewan the first Canadian province to adopt British policy that essentially allows police to disclose a person’s violent or abusive past to that person’s partner. The purpose of this new legislation is to inform people who may not be aware that they are involved in an intimate relationship with someone who has a history of violence.

This new legislation is in place to allow for applications to disclose a person’s violent past from the police, the person at risk, family members, medical professionals and shelter workers, among others. In any case, the intimate partner is the only individual who receives the information if it is decided to be disclosed.

This Act will provide a legislative framework for police services to release relevant information to people who are at risk through a “right to know” process and to partners who have applied or have had other people apply for information to be disclosed through a “right to ask” process.

How is it Decided?

The legislation is currently in place already, however, Saskatchewan police forces and the ministry of justice are still working on finalizing the ins and outs of the disclosure protocol. Currently the legislation in place calls for a panel to review potential cases in order to decide whether the risk of partner violence is great enough to merit the disclosing of a person’s past. The specifics on who would be in place on the panel and the guidelines to be put into use to determine the severity of the risk are yet to be determined.

While the application process and guidelines are still undecided, we might look to how the U.K. has introduced these guidelines to predict how Saskatchewan might similarly implement this policy. In the U.K. once an application is made, police and partner agencies carry out a variety of checks on the individual. If these checks reveal a record of abusive offences, or suggest a risk of violence or abuse, the police consider sharing this information. If it is decided that they will reveal what the checks have found, the police disclose this information to the person at risk.

The U.K. also has a guideline in place that would allow them to disclose the information to another individual if that person is better placed to use the information to protect the person at risk from abuse. If any disclosure is made it is made in person and no written documents are provided.

In the United Kingdom, the DVSC recognises two procedures for disclosing information: the “Right to ask” and the “Right to know”. The “Right to ask” is the procedure when a member of the public has applied to police for disclosure on a potential violent partners background. The “Right to know” is the procedure that is used when the police make the decision, without the request of a member of the public, to disclose information to protect a potential victim.

Privacy Issues

This policy is expected to be a balancing act of people’s rights. What rights to privacy and not having a partner know your criminal background does a person have versus the possible protection of a vulnerable partner. Based on privacy legislation, there are exceptions to the rule where information known by the police is confidential, and where personal information can be provided. Saskatchewan Information and Privacy Commissioner Ron Kruzeniski stated that one of these exceptions “centres around when there’s a risk of physical or mental harm.”[2] This legislation seeks to create guidelines for how this common law police power can be used to protect a vulnerable person in a domestic violence situation.

The Saskatchewan Government also acknowledges that there is a problem with disclosing this personal information. Once the information has been disclosed to another, the Government loses control over where this information goes or where it might end up. There is no protocol in place as of yet for the punishments of spreading such information, but if the Government looks to how the United Kingdom has dealt with it perhaps they can form some guidelines. The U.K. has policy in place which states that all information given is confidential and if a victim who was given the information was to widely share it, it could result in civil or criminal proceedings against them. Perhaps this is a safeguard that the Saskatchewan Government will look to put in place, in order to protect the individual rights of a person.

Potential Problems

On average about 22 per cent of domestic violent cases are even reported to the police.[3] When interviewed Stephanie Taylor, executive director of the Regina Transition House, made comments that she feels “[i]t would be helpful if there was a way that they could still release any information about reported offences … (even if) no charges were laid or no conviction was made.”[4] If checks on an individual come back clear because they don’t have criminal charges, it doesn’t necessarily mean the situation for the partner is safe.

In the U.K. policy, the police use the common law power to disclose information where there is a pressing need in order to prevent further crime. These disclosures are based on “previous convictions or charges.”[5]

The legislation in Saskatchewan currently refers to an individual’s “criminal record” or “violent past” as information that would be referenced in order to decide if they pose a future threat. What does this mean for a person who has had such a charge stayed or been acquitted? When the legislation refers to a criminal record it does not state only individuals that have been found guilty, it states those who have a violent past and criminal record.

Does this mean that even though a jury of their peers may have found that they are not guilty of a charge of violence, that the police will still be able to tell a future intimate partner that they are potentially violent? What does it mean for our society and protection of privacy if even the slightest reported offence should become a matter of record for a partner to inquire into? Where does an individual turn if they are going through a bad divorce and violence is alleged against them for spite, do they now have to be concerned for any future disclosure to a new partner? There are many questions and details to be worked out, but it is likely that this new regime is destined to be implemented more broadly in the coming years.

Works Cited:

Adam Hunter, “Saskatchewan 1st to introduce Clare's Law, aimed at stopping domestic violence”, CBC News (5 November 2018) online: <https://www.cbc.ca/news/canada/saskatchewan/sask-clares-law-domestic-violence-1.4892606>.

Ashley Martin, “What Clare's Law could mean for Saskatchewan”, Leader Post (14 Dec 2017), online: <https://leaderpost.com/news/local-news/what-clares-law-could-mean-for-saskatchewan-and-domestic-violence>.

Saskatchewan, Interpersonal Violence Disclosure Protocol Act – Clare’s Law – Introduced In Saskatchewan (5 November 2018), online: <https://www.saskatchewan.ca/government/news-and-media/2018/november/05/clares-law>.

United Kingdom, Home Office, Domestic Violence Disclosure Scheme: Guidance, (United Kingdom: Home Office, 16 July 2012) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf

United Kingdom, Metropolitan Police, Clare’s Law and requesting domestic violence offender data, online: <https://www.met.police.uk/advice/advice-and-information/daa/domestic-abuse/clares-law/>.

Works Referenced:

[1] United Kingdom, Home Office, Domestic Violence Disclosure Scheme: Guidance, (United Kingdom: Home Office, 16 July 2012). https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf.

[2] Ashley Martin, “What Clare's Law could mean for Saskatchewan”, Leader Post (14 Dec 2017), online: <https://leaderpost.com/news/local-news/what-clares-law-could-mean-for-saskatchewan-and-domestic-violence>.

[3] Ibid.

[4] Ibid.

[5] Supra, note 1.