Breached. Are you a victim?

According to your emotional response, yes and if your personal health information has been breached according to the Health Information Act (HIA), you are a victim. However, despite recent surcharges being applied to offenders fines’ by Court of Queens’ Bench, victims of Health Information breaches do not qualify as a victim under the Criminal Code, which is the requirement to access funds for services such as victim counselling. It is not the ideal situation to find yourself in.

Alberta’s First and Second Victim Surcharge Cases

In Alberta, the first and highest possible victim surcharge (30%) was applied to the fine handed to a registered nurse from Fox Creek Healthcare Centre who accessed health information of multiple people in contravention of the Health Information Act.

“A registered nurse pleaded guilty to accessing health information in contravention of the Health Information Act (HIA) and received a $3,000 fine, plus a victim fine surcharge of 30 percent of the imposed fine, on June 25, 2018. This was the ninth conviction since the HIA was enacted in 2001. This was the first case in which a victim fine surcharge had been issued. A victim fine surcharge helps fund victim services, such as counseling.” OIPC Source

“This case marked only the second time in which a victim fine surcharge was issued against the convicted. A victim fine surcharge helps fund victim services, such as counseling. She received a $3,500 fine, plus a victim fine surcharge of $525. The unauthorized accesses occurred at the Terwillegar Family Clinic where she was formerly employed.” OIPC Source

What does the Criminal Code say?

“Under Section 737 of the Criminal Code, a convicted offender must pay a victim surcharge that is 30 percent of any fine ordered by the court. If no fine is imposed, the surcharge is $100 for a lesser offence and $200 for a more serious offence.”

While the surcharge has a purpose for victims – to raise funds for victim support services and to increase offenders’ accountability to victims of crime and the community – one must wonder why the surcharge was applied to these to cases.

As I researched this topic, I did reach out to the OIPC. I asked them to reconsider suggesting that victims under the HIA receive victim services such as counselling who responded with, “Your perspective has been heard. We may consider removing the last sentence in the release in the future.” 

Protection of employee

Section 106 (2) lays out the Protection of employees- A person who contravenes subsection (1) is guilty of an offence and liable to a fine of not more than $10 000. Source: Health Information Act (HIA) 1999 cH-4.8 s106

Thinking ahead

Would it be reasonable to increase the fines from around $3,500 closer to the maximum of $10,000 as permitted by the HIA and eliminate the highest percentage surcharge be applied to a fund which leaves victims of HIA feeling unclassified, unrecognized, and uncategorized under this status which does’t include them?

An interesting read from a different perspective can be found here: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights