Backgrounder: Legal opinion on constitutional validity of OPC proposed amendments to former Bill C-11

May 4, 2022

The Office of the Privacy Commissioner of Canada (OPC) retained Addario Law Group LLP to provide a legal opinion regarding the constitutional validity of Bill C-11, the Digital Charter Implementation Act and certain amendments to the Bill proposed in the OPC’s submission on Bill C-11.

Intended to replace Canada’s federal private sector privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), the bill died on the order paper in 2021 when an election was called. However, the government has said it would table a new bill this year.

The legal opinion is meant to address concerns expressed by stakeholders with the OPC’s position that any future law be entrenched within a rights-based framework that recognizes privacy as a human right, and as an essential element for the exercise of other fundamental rights.

Some have argued a rights-based approach to privacy protection is not possible under Canadian federal law, on the basis that the protection of personal information is a matter of “civil rights” that falls within provincial jurisdiction under the Constitution.

According to the legal opinion by Addario Law LLP, certain amendments proposed by the OPC would “either strengthen” or “not affect” the constitutionality of the proposed law.

Below are key excerpts from the report:

On whether the OPC’s proposed amendments would change the “pith and substance” of the law, which is the promotion of economic growth through a national standard of privacy protection for consumers:

“In our view, none of the proposed amendments change the pith and substance of the Bill away from its national economic focus. In fact, some of the amendments will add to the constitutional validity of the Bill by clarifying the centrality of the national economy to the Bill and its promotion through stringent privacy protection… In other words, the preamble demonstrates that consumer confidence is elevated through strong privacy protection, and the elevation of consumer confidence promotes economic growth.”

On why introducing a preamble would be advantageous:

“Preambles are helpful tools for courts to use to illustrate the mischief that a certain Act addresses. The absence of a preamble can lead to confusion or disagreement regarding the raison d’être of a law…. Although privacy rights do play a prominent role in the proposed preamble, they do not overwhelm the economic nature of the Act.”

Related document:

Legal opinion by Addario Law LLP: The Constitutional Validity of Bill C-11, the Digital Charter Implementation Act