Submissions to the Office of the Privacy Commissioner of Canada Regarding Lawful Access and the Consent Model under PIPEDA

Lisa M. Austin (University of Toronto Faculty of Law), Cheryl Milne (Executive Director, David Asper Centre for Constitutional Rights) and Geneviève Ryan (Research Assistant, David Asper Centre for Constitutional Rights)

October 2016

Note: This submission was contributed by the author to the Office of the Privacy Commissioner of Canada’s Consultation on Consent under PIPEDA.

Disclaimer: The opinions expressed in this document are those of the author(s) and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada.

---

Summary

These submissions were prepared by Lisa Austin and the David Asper Centre for Constitutional Rights in response to the call for submissions from the Office of the Privacy Commissioner of Canada on the consent model under the Personal Information and Protection of Electronic Documents Act (PIPEDA). The consultation questions that are the focus of these submissions are: what roles, responsibilities and authorities should the parties responsible for promoting the development and adoption of solutions have to produce the most effective system, and what, if any, legislative changes are required? We make two main recommendations:

• The disclosure of personal information for law enforcement, investigative or national security purposes should be subject to review that reflects the protection of s.8 Charter rights and not simply be reviewed on a reasonableness or necessity standard.
• The Office of the Privacy Commissioner should take a more proactive role in PIPEDA oversight.

These recommendations do not require any legislative change. Rather, they require an approach to existing legislation that recognizes the interconnectedness of PIPEDA with individual Charter rights, and a more proactive use of the Office of the Privacy Commissioner’s existing abilities and responsibilities.

The full submission is available in the following language(s):

English (PDF document)

Note: As this submission was provided by an entity not subject to the Official Languages Act, the full document is only available in the language provided.