R. v. Zarzour, (2000) 196 F.T.R. 320

June 2014

Summary: This case explains the principles about retaining personal information, and that a government institution must take sufficient steps to verify the accuracy of the personal information it uses for an administrative purpose.

Facts: The Respondent was convicted of second degree murder in 1977 and was serving a sentence of life imprisonment when he was released on parole. While on parole he married, had a son, had marital problems, separated, divorced, and was reincarcerated for parole violations. When he was released on parole a second time, he moved to Montreal where his ex-wife and son lived. He was reincarcerated shortly thereafter for another parole violation. His ex-wife learned that he had moved to Montreal and wrote two letters to the National Parole Board (“Board”) alleging spousal abuse. The Board later denied the Respondent full parole in two decisions; in one of those decisions, the Board used the letters against the Respondent and also made it a condition of his pre-release unescorted leave that he not contact his former wife. The Respondent sued the government for this misuse of information. The Federal Court allowed his claim, ordered that the Board and the Correctional Service of Canada delete the letter from its records and pay the Respondent damages of $15,000. The Crown appealed.

Result: The Federal Court of Appeal allowed the appeal.

Decision: Most of the Federal Court of Appeal’s decision concerned the appropriateness of the Board considering the two letters when denying the Respondent full parole and some Charter and tort issues. The Court of Appeal did, however, comment on two aspects of the Privacy Act.

First, the Court of Appeal considered whether the trial judge could order that the Board and Correctional Services delete the two letters from the Respondent’s file. The Court of Appeal considered s. 6(1) of the Privacy Act, which requires that a government institution retain personal information for a period prescribed by regulation (at least 2 years in this case). The Court of Appeal also considered s. 5 of the National Archives of Canada Act, which states that no record under the control of a federal institution shall be destroyed or disposed of without the consent of the National Archivist of Canada. These provisions are intended to preserve the integrity of federal records. Therefore, the trial judge could not order that the letters be deleted from the Respondent’s files, still less destroyed or completely eliminated.

Second, the Court of Appeal considered whether the Board had to verify the letters’ accuracy. The Court of Appeal concluded that the Board had to verify the letters’ accuracy if it wished to use the letters; if it was simply keeping the letters, however, it did not need to verify their accuracy. Subsection 6(2) of the Privacy Act obliges a government institution to ensure that the personal information it uses for an administrative purpose is accurate and up-to-date. However, this obligation only exists in regard to the information it uses. If the Board does not use the information, its only obligation to “correct” the file are set out in s. 12(2) of the Privacy Act: if an individual complains, the institution must either correct the record or put a notation on the record reflecting the corrections that were requested. In this case, the Board did not use the letters for all of its decisions. When the Board did use the letters, it took sufficient steps to verify their accuracy by telling the Respondent about the allegations in the letters and allowing him to answer those allegations.