"Correctional records" broad enough to include records created before conviction

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32 was released today.

Section s. 49(e) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, allows "correctional records" to be withheld.

Today's decision holds that those records are not limited to those created respecting an inmate after conviction. The Court holds:

[58]          The correctional system does not operate in water-tight compartments. An inmate serving an 18-month sentence could very well be detained at the Toronto Jail awaiting trial on additional charges.  In that situation, on the adjudicator's interpretation of "correctional records", it would be necessary to try to discern whether the records maintained by the correctional authorities are "correctional records" under s. 49(e) because the inmate is serving an 18-month sentence, or if they are not "correctional records" because the inmate is in pre-trial custody on other matters.

[59]          Other difficulties would arise in respect of maintaining records related to offenders who have been convicted but not yet sentenced.  The adjudicator's interpretation of "correctional" is such that the word does not apply "to matters such as investigation, prosecution, court proceedings, and pre-trial and pre-sentence detention" (emphasis added) (p. 17).  However, s. 719(3) of the Criminal Code, R.S.C. 1985, c. C-46 allows the sentencing judge to take pre-sentence custody into account in fixing the appropriate sentence. In so doing, the sentencing judge may properly consider the inmate's behaviour during the period of pre-trial or pre-sentence custody. On the adjudicator's definition of "correctional", any records in respect of an inmate that are generated before sentencing, would not qualify as correctional records.  Indeed, his definition suggests that, for purposes of vetting requests under s. 49(e), the correctional authorities should maintain two sets of files, one for records that pertain to sentencing matters, and the other for records that pertain to pre-sentencing matters.  This requirement is at odds with the functioning of the sentencing process under the Criminal Code.

[60]          Further concerns arise from the adjudicator's interpretation in connection with inmates who are being held for immigration hearings or extradition proceedings. According to the adjudicator, records kept by corrections officials in relation to those inmates could never be "correctional records" within the meaning of s. 49(e), regardless of the fact that they may contain sensitive information supplied in confidence by a third party.