CV-14-504139 (Ont. Super. Ct of Justice filed May 13, 2014)
The Canadian Civil Liberties Association (“CCLA”) and Christopher Parsons, a postdoctoral fellow at the Citizen Lab in the Munk School of Global Affairs at the University of Toronto and Principal at Block G Privacy and Security Consulting, challenge provisions in the Personal Information Protection and Electronic Documents Act (“PIPEDA”) that allow private entities to disclose individuals’ personal information to the government and to deny individuals’ requests for information about such disclosures. S. 7.3(c.1) of PIPEDA allows private entities to disclose individuals’ personal information without their knowledge or consent where a government entity indicates that “it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs” or requests disclosure “for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction” or for related investigations or intelligence gathering. The CCLA and Parsons allege that, “Government agencies, including the Canadian Border Services Agency, the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Communications Security Establishment Canada, and provincial and municipal law enforcement seek disclosure of personal information from Canadian telecommunications companies on a massive scale. A significant majority of these disclosures are made without prior judicial authorization and are rooted in s.7.3(c.1) of PIPEDA.” Notice of Application, para. 19. They further state that “domestic agencies may and do share information with foreign agencies in connection with matters of national security, international affairs or for purposes of enforcing a law of a foreign jurisdiction.” Para. 22. By sharing Canadians’ personal information with foreign governments, “Canada effectively loses control over the information, its use, dissemination, and further disclosure, increasing the risk of serious and adverse consequences to Canadians.” Para. 23.
The CCLA and Parson also challenge s.9 (2.2.)- (2.4) of PIPEDA’s requirement that private entities inform relevant government institutions of individuals’ requests to learn whether their information has been disclosed and/or to be informed of the nature of such disclosures. Also challenged is the requirement that private entities deny individuals’ requests for information if the government institution objects on certain grounds.
Contending that “[t]he scope of permissible disclosure included in s. 7(3)(c.1) is arbitrary, overbroad and grossly disproportionate,” and that the harm is compounded by s.9(2.2)-(2.4)’s barriers to individuals’ learning of disclosures of their information, CCLA and Parsons seek a declaration that the right to liberty and security of the person in s.7 of the Charter is violated. Para. 24. On the ground that 7(3)(c.1) permits “government access to personal information in a wide range of circumstances absent prior judicial authorization and where individuals hold a reasonable expectation of privacy,” they also request a declaration that the right against unreasonable searches and seizures in s.8 of the Charter is violated. Para.25. Further, they seek a declaration that s.1 of the Charter is violated in that the infringements on ss. 7 and 8 are not “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”