Personal Information and the Protection of Privacy 1995

  1. Ekos Research Associates Inc., Privacy Revealed, Ottawa, 1993, p.4. More recently, a 1994 Gallup Canada survey indicated that more than 80 percent of Canadians were concerned about personal information about them that might be collected by companies involved in the Information Highway: Gallup Canada, The Information Highway, Andersen Consulting Canada, 1994; a Louis Harris & Associates survey conducted in the fall of 1994 confirmed that the privacy issue in Canada continues to be concern to a large majority of the public: Louis Harris & Associates, The Equifax Canada Report on Consumers and Privacy in the Information Age, Anjou, Equifax Canada Inc., 1995, 59 p.
  2. James B, RULE et al., Preserving Individual Autonomy in an Information-Oriented Society, in Computers and Privacy in the Next Decade, ed. by Lance J. HOFFMAN, New York, Academic Press, 1980, pp.65-87.
  3. Privacy Commissioner of Canada, 1993-1994 Annual Report, Ottawa, Canada Communications Group, 1994, pp. 5-6.
  4. Jeremy RIFKIN, Biosphere Politics, New York, Harper Collins, 1992, p. 154.
  5. Louis NIZER, The Right of Privacy, a Half Century's Developments, (1940-41) 39 Mich.L.R. 526.
  6. Task Force on Privacy and Computers, Privacy and Computers, Ottawa, Information Canada, 1972.
  7. Examples of such misuse of personal information abound. A recent one in British Columbia involved a police officer who, by using the license plate numbers of cars parked in front of a health clinic performing abortions, obtained access, by using the Province's computerized motor vehicle database, to the names and addresses of staff members at the clinic. These staff members then received phone calls and mail at home from anti-abortion groups. See Investigation reportP95-005, March 31, 1995, Information and Privacy Commissioner of British Columbia for a discussion of the general issues surrounding privacy in a complex multi-user database.
  8. Anne Wells BRANSCOMB, Who Owns Information?, New York, BasicBooks, 1994, p. 1.
  9. Thomas COOLEY, A Treatise on the Law of Torts or the Wrongs which arise independent of contract, 2nd ed. (1888) p. 29.
  10. S. WARREN and L. BRANDEIS, The Right of Privacy, (1980) 4 Harv. L. Rev. 193.
  11. Robertson v. Rochester Folding Box Co,. (1902), 171 N.Y. 538.
  12. 1903 N.Y.L.C. 132, Sec. 1,2.
  13. R.v. Duarte, [1990] 1 S.C.R. 30,46.
  14. U.S. Department of Justice v. Reporters Committee for the Freedom of the Press, (1989) 489 U.S. 749. The case dealt with an access to information request for personal information made under the U.S. Freedom of Information Act.
  15. A. WESTIN , Privacy and Freedom, New York, Atheneum, 1967, p.32.
  16. R. v Duarte, [1990] 1 S.C.R. 30,43.
  17. The Supreme Court of the United States had recognized a constitutional right to privacy in 1967 in its decision in Griswold v. Connecticut, (1967) 381 U.S. 479.
  18. R. v. Dyment [1988] 2 S.C.R. 417; R.Collaruso [1994] 1 S.C.R 20.
  19. R. v. Duarte, [1990] 1 S.C.R. 30 (interception of private communications); R. v. Wong, [1990] 3 S.C.R. 36 (video surveillance) and R. v. Wise, [1992] 1 S.C.R. 527 (installation and monitoring of a tracking device on a vehicle)>
  20. R. v. Plant [1993] 3 S.C.R. 281: the Court ruled that the police's warrantless obtention, from the hydro Commission, of the records showing the electricity consumption of the defendant did not violate section 8 as these records were not "confidential". The Court did not forclose, however, the possibility of a section 8 claim with respect to records prepared in a commercial context. (See, however, the stong dissent of Ms. Justice Mclaughlin).
  21. R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627: The Court ruled that, at least vis-a-vis the Department of Revenue, a taxpayer right to privacy with respect to financial records was relatively low.
  22. See, for example the comments of Mr. Justice La Forest in R. v. Beare, [1988] 2 S.C.R. 387, at 412 and those of Chief Justice Dickson in R. v. Morgentaler, [1988] 1 S.C.R. 30, at 56.
  23. McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
  24. Privacy Act, R.S.B.C. 1979, c. 336.
  25. Privacy Act, R.S.S. 1978, c. P-24.
  26. Privacy Act, R.S.M. 1987, c. P-125.
  27. Privacy Act, R.S.N. 1990 .P-22.
  28. Ian LAWSON, Privacy and Free Enterprise, Ottawa, Public Interest Advocacy Centre, 1992. p. 74.
  29. Georges S. TAKACH, Law in the Digital Age: A Tour d'Horizon, in Heading into the Information Age, Proceedings of a Conference organized by the Canadian Bar Association and the Common Law Section of the Facutly of Law of the University of Ottawa, May 16, 1995, p. 11.
  30. R.S.Q., c, C-12.
  31. S.Q. 1991, c. 64.
  32. The proceedings of the 1994 meeting had not yet been published at the time of the completion of this paper in June 1995.
  33. The first European countries to adopt data protection legislation applicable to both the public and private sectors were Germany, France, Austria and Sweden in the 1970s. To harmonize legislation within the European Community (E.C.) and to prevent that data transfers between member countries might be blocked by national data commissioners, the E.C. has been working since 1990, on the adoption of data protection directive. This directive may, however, have the effect of preventing the transfer of personal data to non-member countries that do not provide an acceptable level of protection to personal information.
  34. The federal Privacy Act, passed in 1974, protects personal information contained in records of the federal government.
  35. R.S.C. 1985, c.P-21.
  36. S.C. 1976-77, c. 33.
  37. R.S.C. 1952, c. 148, as amended by S.C. 1970-71- 72, c. 63 (as amended).
  38. R.S.C. 1985, c. S-19. s. 17.
  39. Freedom of Information and Privacy Act, S.B.-C. 1992, c. 61.
  40. Freedom of Information and Privacy Act, S.A. 1994, c. F-18.5.
  41. Freedom of Information and Privacy Act, S.S. 1990-91, c. F-22.01and the Local Authority Freedom of Information and Protection Act, S.S. 1990-91, c. L.-27.1.
  42. Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.
  43. An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1.
  44. Freedom of Information and Protection of Privacy Act, S.N.-S. 1993, c. 5.
  45. An Act Respecting the Protection of Personal Information in the Private Sector, S.Q. 1993, c.17.
  46. R.S.C. 1985, c. C-46, sec.183-196.
  47. S.C. 1993, c. 38, s.7.
  48. R.S.C. 1985, c. B-1
  49. R.S.O. 1990, c. C.33.
  50. OECD, Guidelines on the Protection of Privacy and Transborder Flows of Personal Information, 1980, p.5.
  51. Data Protection Act, 1984, ss. 22- 24.
  52. In this regard, see recommendation 7.7 of Parlimentary Committee which reviewed Canada's Privacy Act in 1987: Standing Committee on Justice and the Solicitor General, Open and Shut: Enhancing the Right to Know and the Right to Privacy, Ottawa, Department of Supply and Services, 1987, p.78.
  53. The importance of an independent privacy commissioner's office has been emphasized in some of the literature on data protection. In a study of the implementation of data protection legisltion in five countries, professor David H. Flaherty (now the Information and Privacy commissioner of British Columbia) argued that the success of such legislation depended on whether there was an independent agency chared with administering it: David H. FLAHERTY, Protecting privacy in surveillance Societies: The federal republic of Germany, France, Canada and the United States, Chapel Hill, University of North Carolina Press, 1989, pp. 381-85.
  54. Georges S. TAKACH, Law in the Digital Age: A Tour d'Horizon,in Heading into the Information Age, Proceedings of a Conference organized by the Canadian Bar Association and the Common Law Section of the Faculty of Law of the University of Ottawa, May 16, 1995, p. 11-12,

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