The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Saturday, May 30, 2009
According to CTV News, a Quebec movie theatre is liable for $10,000 in damages when it searched a family's bags (ostensibly for video recording equipment) and exposed the eldest daugther's birth control pills to her unknowing parents. See: CTV.ca Cinema ordered to pay $10K in damages for search.
(Before extending this decision to the rest of Canada, remember that the private right of damages for privacy invasion is different in Quebec.)
Thursday, May 28, 2009
I was invited to co-chair and present at the Canadian Institute's "Meeting Your Privacy Obligations" conference in Toronto. My presentation was specifically about managing privacy in the workplace, which is below if you're interested.
Here's a link if Google Docs aren't giving you due respect: Managing Privacy in Employee Relations
I have to say it was one of the best conferences of its kind that I've been to recently. The stellar speakers included Federal Privacy Commissioner Jennifer Stoddart, Alberta Information and Privacy Commissioner Frank Work and fellow bloggers Brian Bowman and Dan Michaluk. (Note: If you're reading my blog, you'll find theirs to be equally interesting and useful. So after you've read all my postings, head over there ...)
Wednesday, May 27, 2009
The Information and Privacy Commissioner of Ontario has been reappointed for third term. Here's the media release:
IPC - Office of the Information and Privacy Commissioner/Ontario Dr. Cavoukian reappointed as Information and Privacy Commissioner for an unprecedented third term: Blazes the trail with new priorities
TORONTO – Dr. Ann Cavoukian was reappointed today by the Ontario Legislature for an unprecedented third term as the province’s Information and Privacy Commissioner.
“I would like to sincerely thank members of the Legislature for their strong support,” said the Commissioner. “I feel very honoured to serve as Ontario’s Information and Privacy Commissioner.”
“Five years ago, when I was reappointed to my second term, I said we were in the midst of profound change in the areas of privacy protection and access to government information. But now the pace has grown even faster. Technology – which has resulted in many challenges – can also be tapped for innovative solutions, particularly on the privacy front. I will continue to emphasize the need to embed privacy directly into IT, at the earliest developmental stage. I look forward to the challenge – I have so many new ideas that I wish to pursue.”
Halifax Police plan to augment their network of surveillance cameras with hidden cameras in public places. Law abiding citizens have nothing to fear, according to the Mayor. Besides, the Mayor says, people are used to being surveilled on private property. What he doesn't seem to get is that private property is "private" property that you enter on the terms set out by the property owner. Public places do not have those stipuations. Or at least they shouldn't.
From the Halifax Chronicle Herald:
Police plan more camera surveillance - Nova Scotia News - TheChronicleHerald.ca
Halifax police intend to step up camera surveillance in public places, the city’s police chief said Tuesday.
Chief Frank Beazley said Halifax Regional Police officers will be using portable digital equipment in the near future to record images at "hot spots" in the municipality and public gatherings like rock concerts.
He told a city hall budget meeting the new gear won’t need to be installed — the police department already has fixed cameras at several locations — because police personnel will simply arrive at a potential trouble spot with cameras and leave with the pictures they’ve collected.
Mayor Peter Kelly supports more secret camera use at different sites. He said cameras tracking public goings-on are already a fact of life here and in other cities.
Asked if extra police snooping is an invasion of privacy, Mr. Kelly said law-abiding citizens have nothing to fear.
"For those who cause concern for others, you’ll have things to worry about," the mayor said, adding, additional surreptitious camera work will hopefully lead to crime prevention and the arrests of lawbreakers.
Mr. Kelly said people are routinely photographed on private property, such as banks, stores, parking lots and elsewhere, and the police plan to beef up surveillance at common areas used by many people makes sense.
Chief Beazley acknowledged the enhanced camera gear will be used at various locations throughout the city.
"If we have a hot spot — there’s crime going on in certain areas — we’re going to be able to take these mobile cameras and surreptitiously (use) them" without the knowledge of those being photographed, he told regional council’s committee of the whole.
Metro has seen a month of violent crime, including three murders. The most recent shootings in the city occurred Friday night and Saturday afternoon. Nobody was killed in either attack.
Saturday’s shooting took place at a house in a residential neighbourhood in Fall River, prompting RCMP to say police are concerned an innocent bystander could get hurt, or worse.
Monday, May 25, 2009
The federal government introduced legislation in Parliament to "modernize" criminal procedure in Canada. What it means, among other things, is that police will get the authority to fingerprint suspects even before charges are laid. Bill C-31 amends the Identification of Criminals Act (but oddly doesn't rename it the Identification of Criminals and People We Don't Have Enough Evidence to Charge Act).
From the DOJ:
Minister of Justice Moves to Modernize Criminal Law Procedure in Canada
OTTAWA, May 15, 2009 – The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today introduced in the House of Commons an Act to Amend the Criminal Code and other federal legislation, which will modernize criminal procedure and make the justice system more efficient and effective.
“Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it,” said Minister Nicholson. “With these amendments, our Government is taking action to help ensure the safety and security of our communities. It is the latest step in our continuing commitment to tackling crime.”
Proposed amendments in the legislation include:
Creating a new offence to help prevent individuals from fleeing a province or territory in order to avoid prosecution;
Streamlining the identification process in police stations by allowing the fingerprinting and photographing of persons in lawful custody who have not yet been charged or convicted of specific offences;
Improving the application procedure for search and seizure warrants by providing both peace and public officers with greater access to telewarrants;
Enhancing the expert witness process to allow parties more time to prepare their response to expert evidence in criminal matters;
Updating rules related to the use of “agents” (non-lawyers) in criminal proceedings, to provide the provinces with greater flexibility on this issue and ensuring better representation of accused individuals by agents; and,
Expanding the list of permitted sports covered under the current prize fighting provisions, and updating Canada’s pari-mutuel betting system.
“Our provincial and territorial partners have been instrumental in helping us identify and review a number of evolving issues in criminal law across Canada,” said Minister Nicholson. "This bill will increase the effectiveness of the justice system in a number of ways, including giving peace and public officers greater access to warrants relating to search and seizure, and helping address the issue of those who evade justice by travelling to other jurisdictions.”
Here's some media coverage:
Canada wants to fingerprint first - UPI.com
OTTAWA, May 17 (UPI) -- The Canadian government wants to give police the power to fingerprint and photograph suspects who have been arrested and not formally charged.
Justice Minister Rob Nicholson announced legislation Friday, The Toronto Globe and Mail reported. He said that Canada needs to bring its justice system up to date.
"Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it," Nicholson said in a statement.
The Conservative government described the plan as something that would help suspects as well as police by speeding up processing so that they might end up spending less time in police custody.
But one prominent defense lawyer in Toronto opposes the plan.
"Providing fingerprints is self-incrimination and the Constitution protects us from this. The line that is drawn is when you are charged. And to allow police to compel you to incriminate yourself before that moment is open to abuse," Clayton Ruby said.
Wednesday, May 13, 2009
The Information and Privacy Commissioner of Ontario has released her 2008 Annual Report, which makes broad recommendations for changes to the laws in Ontario and calls for the adoption of better practices:
IPC - Office of the Information and Privacy Commissioner/Ontario Commissioner Cavoukian lays out path for increased privacy protection & accountability – doing battle with Victoria University
Commissioner Cavoukian lays out path for increased privacy protection & accountability – doing battle with Victoria University
TORONTO – Ontario’s Information and Privacy Commissioner, Dr. Ann Cavoukian, is urging the provincial government to make specific legislative changes and take additional steps to protect privacy and ensure greater accountability.
In her 2008 Annual Report, released today, the Commissioner cites how her sweeping recommendations from her seminal investigation into a privacy complaint against the video surveillance program of Toronto’s mass transit system have been hailed in the United States as a model that cities around the world can build upon, and in Canada as “a road map for the most privacy-protective approach to CCTV.”
Among the recommendations she is making in her 2008 Annual Report, are:
Amend the law to make it clear that all Ontario universities fall under FIPPA
The Commissioner is calling on the government to fix a potential omission in the Freedom of Information and Protection of Privacy Act related to which organizations are covered under the Act.
Under amendments that came into force in mid-2006, publicly funded universities were brought under the Act. Due to the wording of an amended regulation, the University of Toronto, in response to a freedom of information request received under the Act, argued that Victoria University, an affiliated university, was not covered under the Act.
“An IPC adjudicator determined that, based on the financial and academic relationship between the two, Victoria was part of the University of Toronto for the purposes of FIPPA,” said Commissioner Cavoukian. “The University of Toronto has not accepted our ruling and is now appealing it – having it ‘judicially reviewed.’ They have chosen to fight openness and transparency, expending valuable public resources in the process. We find this completely unacceptable, which is why we are prepared to go to battle on this issue, in our effort to defend public sector accountability. We should add that this is contrary to our normal process of working co-operatively with organizations to mediate appeals and resolve complaints informally. In this case, however, the university, having thrown down the gauntlet, left us no choice but to respond in kind and aggressively defend our Order in the courts.”
There are more than 20 other affiliated universities in Ontario that may have a different relationship with the university they are affiliated with, says Commissioner Cavoukian. “I am calling on the government to ensure that all affiliated universities are covered by the Act. There is no rationale for these publicly funded institutions to fall outside of the law.”
The government needs to set specific fees for requests for patients’ health records under PHIPA
The IPC has received a number of inquiries and formal complaints from the public regarding the fees charged by some health information custodians when patients ask for copies of their own medical records.
Ontario’s Personal Health Information Protection Act (PHIPA) provides that when an individual seeks copies of his or her own personal health information, the fee charged by a health information custodian shall not exceed the amount set out in the regulation under the Act or the amount of reasonable cost recovery, if no amount is provided in the regulation. No such regulation has been passed.
Commissioner Cavoukian, in her August 2008 submission to the Standing Committee on Social Policy, which conducted a statutorily mandated review of PHIPA, again raised the need for a fee regulation. Two months later, in its report to the Speaker of the Assembly, the Standing Committee indicated its agreement with the Commissioner’s recommendation, stating that the determination of what constitutes “reasonable cost recovery” should not be left to the discretion of individual health information custodians and their agents.
“The Minister of Health,” said the Commissioner, “should make the creation of a fee regulation a priority.”
Ontario’s enhanced driver’s licence (EDL) needs a higher level of protection
The Commissioner is calling on the Minister of Transportation to provide better privacy protection for the EDL. “The radio frequency identity (RFID) tag that will be embedded into the card can be read not only by authorized readers, but just as easily by unauthorized readers,” said Commissioner Cavoukian. “Over time, these tags could be used to track or covertly survey one’s activities and movements.”
The electronically opaque protective sleeve that will come with these enhanced licences – which drivers without a passport will need as of June 1 to drive across the U.S. border – “only provides protection when the driver’s licence is actually encased in the sleeve,” said Commissioner Cavoukian. “But individuals who voluntarily sign up for these enhanced driver’s licences will not only be required to produce them at the border, but will still have to do so in other circumstances where a driver’s licence or ID card is presently required, including in many commercial contexts. The reality is that most drivers will abandon the use of the protective sleeve.”
“An on-off device on the RFID tag would provide greatly enhanced protection,” said the Commissioner. “The default position would be off since drivers don’t need the RFID to be ‘on’ when routinely taking their licence in and out of their wallets, unless they are actually crossing the border. I am urging the government to pursue adding a privacy-enhancing on-off device for RFID tags embedded in the EDLs.”
The number of freedom of information requests filed across Ontario in 2008 was the second highest ever – 37, 933, trailing only the 38,584 filed in 2007. Nearly two-thirds of the 2008 requests were filed under the Municipal Freedom of Information and Protection of Privacy Act (24,482), to such organizations as police service boards, municipalities, school boards and health boards. In fact, there were more requests filed to police service boards (13,598) than there were for all organizations under the provincial Act (13,451).
FOI requests may be filed for either personal information or general records (which encompasses all information held by government organizations except personal information). And, the majority of requests each year have been for general records. In 2008 – for the second year in a row – the average cost of obtaining general records under the provincial Act dropped – this time, to $42.74 from $50.54, continuing a reversal of what had been a lengthy trend. The average cost of general records under the municipal Act was $23.54, up only a nickel from the previous year.
Among other key statistics released by the Commissioner:
· Since the IPC began emphasizing in 1999 the importance of quickly responding to FOI requests, in compliance with the response requirements set out in the Acts, the provincial 30-day compliance rate has more than doubled, climbing to 85 per cent from 42 per cent. After achieving a record 30-day compliance rate in 2007 of 84.4 per cent, provincial ministries, agencies and other provincial institutions promptly broke the record in 2008, producing an overall 30-day compliance rate of 85 per cent.
· The Commissioner also reported that her office received 507 complaints in 2008 under Ontario’s three privacy Acts, and 919 appeals from requesters who were not satisfied with the response they received after filing an FOI request with a provincial or local government organization. Overall, the IPC resolved 966 appeals and 534 complaints in 2008. The Information and Privacy Commissioner is appointed by and reports to the Ontario Legislative Assembly, and is independent of the government of the day. The Commissioner's mandate includes overseeing the access and privacy provisions of the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act, as well as the Personal Health Information Protection Act, which applies to both public and private sector health information custodians, in addition to educating the public about access and privacy issues.
Saturday, May 09, 2009
I was stunned to read that British police use new anti-terror powers to stop and search people every three minutes. Section 44 of the Terrorism Act has been used 170,000 to search people in 2008 alone according to the BBC. (See: BBC NEWS | England | London | Capital sees rise in terror stops.) These searches have led to 65 arrests (0.035% success) and zero convictions (0.000% success). Of course there are no official stats on how many times Section 44 was used as a pretense for some other motive.
Draw your own conclusions.
Friday, May 08, 2009
Here's something interesting ...
An advisory opinion by the Philadelphia Bar Association says it's unethical to ask a third party to friend someone on Facebook to obtain information about them:
Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says ABA Journal - Law News Now
Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says
Posted May 5, 2009, 07:38 pm CDT By Martha Neil
A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.
Alternative approaches, such as secretly sending a third party to "friend" a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.
Not telling the potential witness of the third party's affiliation with the lawyer "omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness," the opinion explains.
"The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony."
Facebook and MySpace profiles are different from public spaces where one can freely film and record others, the opinion says, because an invitation is required to access them, notes a Social Media Today post on the opinion.
Join the discussion about this issue over at Slaw.ca: Is it OK to use deceit to get Facebook users’ info?.
Tuesday, May 05, 2009
Presuably to counteract the effects of the Information and Privacy Commissioner's decision that bans siping licenses at bars in the province (Alberta Commissioner forbids license scanning), the Alberta legislature is considering Bill 42 which permits the collection of similar information:
Legislative Assembly of Alberta - Bill 42: Gaming and Liquor Amendment Act, 2009
Collection of personal information by licensee
69.2(1) A licensee may, before allowing a person to enter licensed premises, collect the person’s name, age and photograph.
(2) If a licensee has personal knowledge or reasonably believes that a person referred to in subsection (1) has, at any time within the preceding year, engaged in an activity referred to in section 69(1) or (2), the licensee may, in good faith, disclose the person’s name, age and photograph to other licensees for the purpose of allowing them to determine whether they wish to allow the person to enter licensed premises.
(3) A licensee must, as soon as possible after a request is made by a police officer, disclose to the police officer any information collected under subsection (1).
Thanks to a correspondent for pointing this out ...
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