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| John L. Hill |
Extortion happens in times of anger. Everyone who watches television or movies immediately thinks of mafioso characters brandishing handguns demanding cash to prevent broken bones or a bullet wound. Sometimes people will try to cover indiscretions by paying money in exchange for a nondisclosure agreement and then find the contractual terms to maintain silence breached. But such cases are unusual.
Frustration with “the system” is not. How far is too far to take ultimatums when dealing with government or quasi-governmental institutions? The case of R. v. Curtis [2022] N.J. No. 101 handed down April 8, 2022, is instructive in answering this question.
Trevor Rodney Curtis was a Newfoundland businessman. He had a cleaning company. Curtis felt he had been wronged by Eastern Health, the regional health authority. Whatever Eastern Health did or was supposed to have done to Curtis resulted in his losing his business and depriving his family of income. Curtis wanted redress. By happenstance, Curtis found a memory stick containing patient records that Eastern Health, perhaps negligently, misplaced. Curtis considered it a godsend. He posted some patient information on his Facebook page and demanded a meeting with officials at Eastern Health to seek “compensation” for the perceived harm done to him. At a meeting at Waterford Hospital in St. John’s on Feb. 24, 2020, Curtis threatened an administrative assistant that unless he heard from someone higher up in Eastern Health within 24 hours, more patent information would be released.
Breach of confidentiality was, of course, anathema for medical service professionals. Eastern Health could have complained to the Privacy Commissioner under the Access to Information and Protection of Privacy Act. Instead, Eastern Health chose to call the threat of a future and more extensive release of patient information extortion, a criminal offence under s. 346(1) of the Criminal Code. The section makes it an offence punishable by life imprisonment to obtain anything by threats, accusations, menaces or violence in order to induce a person to do or cause anything to be done.
This was not a case where credibility of witnesses became a deciding factor. Curtis testified at trial and the trial judge, Justice Katherine O’Brien, accepted his evidence. The defence was that Curtis did not specify he wanted monetary compensation and that he acted reasonably considering the harm he suffered caused by Eastern Health. Furthermore, he felt he had a legal right to publish patient information. Laura Percey, the administrative assistant Curtis spoke with described the interaction as emotional but not violent.
In finding Curtis guilty, the trial judge said that the extortion section is not restricted to securing monetary gain. The fact that the section says a demand for “anything” must be given broad and unrestricted meaning. The ratio of the decision can be summarized from one excerpt: “At issue is not the legality of the conduct threatened, but whether the threat was made with the intention of overcoming the target’s free will. Threatening someone to expose something embarrassing or private can be an effective method of coercing someone’s behavior.”
A reasonable person would not find Curtis’ actions justified or excused. He should have returned the memory stick to the rightful owner and not used it to his own advantage, the court held. Further, it was the patients’ information that was being held hostage, and they had nothing to do with the dispute with Eastern Health and Curtis. Curtis set out to create embarrassment by exposing a data leak. The elements of the extortion section of the Code were met.
We all have frustrations from time to time. Blackmail is not the solution. Threaten a civil suit; that is allowed under s. 346(2). Especially as government and its institutions play a greater role in our day-to-day lives, it is best to remember we all have civil remedies to ease our frustrations.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / Waldemarus ISTOCKPHOTO.COM
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