“Personal Information” in Canada: Is Change Coming?
Alberta’s PIPA was recently declared unconstitutional by the Supreme Court of Canada (“SCC”) in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401. In reading the decision, the issue appears to be the broad, circular definition of “personal information” in that statute. Since a similar definition of personal information is found in the federal, BC and Manitoba statutes, the issue has national implications and goes far beyond labour unions and public picketing. How will Alberta legislature’s amend the statute? Would narrowing the definition of personal information in Canadian statutes fix the problem? If so, what would this mean for Canadian personal information protection law?
One can distinguish between Canadian privacy law and Canadian personal information law. The former can be seen in Charter of Rights cases; the latter in Commissioner findings and a smattering of cases involving PIPEDA and the provincial personal information protection statutes. The concept of “personal information” or information attracting privacy interests is already narrow in Charter cases and has been narrowed in case law interpreting the federal Privacy Act. In finding PIPA unconstitutional, the SCC seems to imply that a narrower definition, as reflected in Charter cases, may be more appropriate.
The court noted:
“The personal information was collected…at an open political demonstration where it was readily and publicly observable.… Moreover, the personal information collected, used and disclosed…did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.” (Emphasis added.)
The evolution of the concept of “private information” in a Charter context can be seen in such SCC cases as R v. Plant, R. v. Tessling and R. v. A.M. This last decision has language that I think encapsulates where the law may well be at this point in time:
“Here, the guilty secret of the contents of the accused’s backpack was not known to third parties. It was specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy...
…Not all information that fails to meet the “biographical core of personal information” test is thereby open to the police. Wiretaps target electrical signals that emanate from a home; yet it has been held that such communications are private whether or not they disclose core “biographical” information: R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62, and R. v. Thompson, [1990] 2 S.C.R. 1111. The privacy of such communications is accepted because they are reasonably intended by their maker to be private: R. M. Pomerance, “Shedding Light on the Nature of Heat: Defining Privacy in the Wake of R. v. Tessling” (2005), 23 C.R. (6th) 229, at pp. 234?35.” (Emphasis added.)
A similar line of thought occurs in a Federal Court of Appeal decision interpreting the meaning of personal information under the Privacy Act. In Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board) and Nav Canada, the records in question were air traffic control communications. The Appeal Division found that the information in question was not “personal information”:
“The information contained in the records at issue is of a professional and non-personal nature…It is not about an individual, considering that it does not match the concept of “privacy” and the values that concept is meant to protect.”
We commonly refer to Canadian personal information protection statutes as “privacy laws”. This PIPA decision raises questions as to whether such laws should be amended to reflect a definition of personal information that is narrower and more aligned with Charter concepts of privacy. Should PIPA apply when “personal information” is truly “about” rather than simply “associated” with an individual? Should PIPA be invoked only when privacy interests are challenged? Should “privacy interests” be limited to what a reasonable person would consider to be specific, meaningful information that was intended to be private? There will likely be some discussion and debate as to how best to proceed in amending PIPA and the other statutes. I sense a growing recognition that Canadian laws, even if only a dozen years old, do need to evolve and are in need of change. As we navigate the policy options, is changing the concept of personal information one direction to consider?
