breach of privacy, breach of confidence, negligence, breach of contract or other
grounds.
The Quebec Charter of Human Rights and Freedoms
12 recognizes a broad right
of privacy in that province. The Canadian Charter of Rights and Freedoms
13 has
been used primarily to provide for privacy rights in the criminal or quasi-criminal
contexts. This right is based in section 8, which guarantees a right to be free from
unreasonable search and seizure. There has been some discussion in the case law as
to whether privacy rights might be implicated in the right to life, liberty and the
security of the person in s. 7 of the Charter, although this aspect of privacy
jurisprudence is not well developed.
14 The rights under the Canadian Charter are
available only with respect to government action. Although the constitutional
protection for privacy in Canada tends to be limited to the right to be free from
unreasonable search or seizure, Canadian courts have ruled that data protection laws
are ‘quasi-constitutional’ in status.
15 This means that the informational privacy
interests they protect must receive a broad interpretation.
1.2 Personal Data
Data protection statutes at the federal and provincial levels use the term “personal
information”. Each statute contains its own definition, but at the core of each
definition is the idea that “personal information” is “information about an identifiable individual”. Courts have generally interpreted this to mean that information is
personal information if, on its own or when combined with other available information, it can lead to the identification of an individual.
16 The form that the information
takes is generally not important. Personal information can be medical or biological
data, biometrics, a voiceprint, photographic or video images, data, or other written
information.
17
To qualify as personal information, information must be “about” an individual.
Thus it must be capable of being linked to an individual and capable of revealing
something about an individual. The Privacy Commissioner of Canada has found, for
example, that the selling price of a home is personal information since it can be
12 Charter of Human Rights and Freedoms, CQLR c C-12.
13 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
14 See, e.g.; Cheskes v. Ontario (Attorney General), 2007 CanLII 38387 (ON SC); R. v. Hebert,
[1990] 2 S.C.R. 151, and M. (A). v. Ryan, [1997] 1 S.C.R. 157.
15 See, e.g. Nammo v. TransUnion of Canada Inc., 2010 FC 1284; Alberta (Information and Privacy
Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733, 2013 SCC
62.
16 See, e.g. Gordon v. Canada (Minister of Health), 2008 FC 258; Ontario (Attorney General)
v. Pascoe, (2002) 22 CPR (4th) 447 (Ont CA), aff’g Ontario (Attorney General) v. Ontario
(Information and Privacy Commissioner) [2001] OJ No 4987, 16 CPR (4th) 460 (OntDiv Ct).
17 Privacy Commissioner of Canada (2013a) Interpretation Bulletin.
Data Protection and the Internet: Canada
57
grounds.
The Quebec Charter of Human Rights and Freedoms
12 recognizes a broad right
of privacy in that province. The Canadian Charter of Rights and Freedoms
13 has
been used primarily to provide for privacy rights in the criminal or quasi-criminal
contexts. This right is based in section 8, which guarantees a right to be free from
unreasonable search and seizure. There has been some discussion in the case law as
to whether privacy rights might be implicated in the right to life, liberty and the
security of the person in s. 7 of the Charter, although this aspect of privacy
jurisprudence is not well developed.
14 The rights under the Canadian Charter are
available only with respect to government action. Although the constitutional
protection for privacy in Canada tends to be limited to the right to be free from
unreasonable search or seizure, Canadian courts have ruled that data protection laws
are ‘quasi-constitutional’ in status.
15 This means that the informational privacy
interests they protect must receive a broad interpretation.
1.2 Personal Data
Data protection statutes at the federal and provincial levels use the term “personal
information”. Each statute contains its own definition, but at the core of each
definition is the idea that “personal information” is “information about an identifiable individual”. Courts have generally interpreted this to mean that information is
personal information if, on its own or when combined with other available information, it can lead to the identification of an individual.
16 The form that the information
takes is generally not important. Personal information can be medical or biological
data, biometrics, a voiceprint, photographic or video images, data, or other written
information.
17
To qualify as personal information, information must be “about” an individual.
Thus it must be capable of being linked to an individual and capable of revealing
something about an individual. The Privacy Commissioner of Canada has found, for
example, that the selling price of a home is personal information since it can be
12 Charter of Human Rights and Freedoms, CQLR c C-12.
13 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
14 See, e.g.; Cheskes v. Ontario (Attorney General), 2007 CanLII 38387 (ON SC); R. v. Hebert,
[1990] 2 S.C.R. 151, and M. (A). v. Ryan, [1997] 1 S.C.R. 157.
15 See, e.g. Nammo v. TransUnion of Canada Inc., 2010 FC 1284; Alberta (Information and Privacy
Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733, 2013 SCC
62.
16 See, e.g. Gordon v. Canada (Minister of Health), 2008 FC 258; Ontario (Attorney General)
v. Pascoe, (2002) 22 CPR (4th) 447 (Ont CA), aff’g Ontario (Attorney General) v. Ontario
(Information and Privacy Commissioner) [2001] OJ No 4987, 16 CPR (4th) 460 (OntDiv Ct).
17 Privacy Commissioner of Canada (2013a) Interpretation Bulletin.
Data Protection and the Internet: Canada
57