The Supreme Court on Privacy

David Fraser points out that the Supreme Court of Canada has just released a decision, H.J. Heinz v. Attorney General (Canada),  that includes a significant amount of privacy analysis.  The case involves privacy considerations within the context of Access to Information Act requests.  The divided court, which interestingly relies on the recent LaForest report on the potential merger of the Offices of the Information and Privacy Commissioners, says several noteworthy things about privacy and reflects some differences on the court on the merits of judicial intervention on privacy grounds.  The majority (Deschamps, joined by Abella, Binnie, and Fish) characterizes the purpose of the Privacy Act as follows:

"the purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves that is held by a government institution (s. 2).  The importance of this legislation is such that the Privacy Act has been characterized by this Court as "quasi-constitutional" because of the role privacy plays in the preservation of a free and democratic society."

It further concludes that in this particular case:

"the Privacy Commissioner and the  Information Commissioner are of little help because, with no power to make binding orders, they have no teeth. Where, as here, a party seeks to prevent the disclosure of information as opposed to requesting its release, the Commissioners’ role is necessarily limited by an inability to issue injunctive relief or to prohibit a government institution from disclosing information."

In referring to the complaints mechanism in the Privacy Act, the the majority says:

"This broader complaint mechanism is inadequate, however, because the Privacy Commissioner has no authority to issue decisions binding on the government institution or the party contesting the disclosure.  Nor does the Commissioner have an injunctive power which would allow it to stay the disclosure of information pending the outcome of an investigation.  Indeed, s. 7 of the Access Act requires the government institution to disclose the requested information within a specific time limit once a disclosure order is issued."

With these comments in hand, the majority takes an aggressive approach to interpreting the Privacy Act, reading in privacy considerations into a section 44 review of an access request (which may arise where there is confidential business information at issue).

Bastarache (joined by McLachlin and LeBel) craft a dissent in which they are not nearly as troubled by the limits of the Privacy Commissioner.  The dissent characterizes the current system in the following manner:

 "Parliament has entrusted the monitoring of government compliance with the Access Act and the Privacy Act to the Office of the Information Commissioner and the Office of the Privacy Commissioner. The role of these offices is akin to that of an ombudsman and is indicative of a policy decision to adopt a non‑litigious dispute resolution mechanism in the context of complaints arising from individuals seeking access to government information or from third parties seeking to protect their personal information. The current scheme creates a more accessible review process of the decision of a government institution to disclose or not to disclose a requested record. This accessible, informal and non-litigious complaint resolution process results in the Commissioners making non-binding recommendations to the government institution that is the subject of the complaint."

Given that view, the dissent argues:

"In interpreting s. 44 of the Access Act, it is necessary to preserve the integrity of the mechanism Parliament has selected in order to balance the competing rights of access and privacy. Where personal information has been unlawfully disclosed, that mechanism consists of the complaint and investigation process provided by s. 29 of the Privacy Act, and of the additional protection provided by s. 8(5) of the Privacy Act, where a government institution intends to disclose personal information on the basis that the public interest in disclosure outweighs any invasion of privacy. This process is nothing more than the expression of a governmental policy decision reflecting its own evaluation of the advantages and disadvantages of various options, in terms of principles and operational requirements. Its integrity must be respected in order to give effect to legislative intent."

This is an important and revealing case which sheds some light on how members of the court view the importance and limits of privacy protection as well as the boundaries of judicial intervention.

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