The law is the law…..

…well, it depends.

Roberto Osuna is a 23 year-old star pitcher with the Toronto Blue Jays who was arrested by Toronto police on an assault charge early in May. He was held in a police cell during processing, and later released on his own recognizance.

Somehow, a photo of him sitting in that cell was released to the media. This is a serious breach of privacy, made all the more awkward because it’s almost a certainty that a member of the Toronto Police Service was responsible.

Police completed an investigation of this privacy violation by mid-May, know who the culprit is, but will only say the necessary disciplinary steps were taken, and no details will be released.

The same legislation that protects Roberto Osuna’s privacy also applies to Canada’s prisoners, albeit without any attending public empathy or charity.

In most American jurisdictions, who is in its prisons is sometimes even available on-line, and the identities of the men and women in custody are not shielded in any case without authorization.

Not so in Canada. No one can contact a provincial or federal institution and casually ask for inmate information. The agencies in charge of prisoners have well-defined protocols around privacy issues.

Paul Bernardo made a video appearance in a Napanee court near Kingston on Friday, April 13, charged with the possession of a weapon. A search of his cell on February 9 found a screw attached to the head of a pen.

Depending on several factors, Correctional Service of Canada used to option either institutional or criminal charges when a weapon was found in an inmate’s possession. Currently, it seems all weapon infractions lead to criminal charges.

Paul Bernardo is now aged 53 and stands almost a zero chance of parole, but he is entitled to have his application processed at intervals. That’s the policy. That’s the law.

Media outlets carried news of the charge on the same day he appeared in court. Now, weapons are found every week in our federal prisons, charges are laid every week, and inmates appear in court every week, and when charges are filed the information is in the public domain. But since anything to do with Bernardo is news, it’s likely someone made sure a media contact was directed to this latest story. Why? And, who? Is it just to ensure his chance of parole goes from zero to less than zero? There’s no suggestion this man deserves clemency, but two things stand out here.

As with other Bernardo information that has leaked out over the years, no one seems concerned about privacy issues, or how sources may have violated policy and the law. Is this excusable because of who he is? And, just where is the line drawn between when the law matters and when it doesn’t?

There’s a tangential but connected question that hasn’t been asked. Paul Bernardo is held in close confinement. He’s on a protective custody range, and other inmates there are locked up when Bernardo is out of his cell. Why then would he feel a need for protection?

The answer to that and other questions like it around safety should come from inmates and not Correctional Service of Canada spokespeople. What if, for example, the doors of other cells on that range ‘accidentally’ opened while Bernardo was outside his cell? The odds of that kind of slip are long but not out of the realm of possibility. But of course, no one wants to ask the men and women who have the best perspectives.

The point here with privacy legislation is how one law can give greater protection to one person than it does to another. Osuna and Bernardo may be at opposite ends of the social spectrum, but where along that line from one extreme to the other do subjective applications of the law become permissible?

As a footnote, Bernardo will appear in person in Napanee court on October 5 for trial.

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