Submitted by Alexis Kerr, Chair
Summary of Activities
Number of Meetings Held: 4
November 3, 2010
Guest Speaker: Lorene Novakowski, Partner, Fasken Martineau DuMoulin LLP
Synopsis: The title of this presentation was "Charter Values and Surveillance - Challenging the Doman test." Ms. Novakowski compared two streams of jurisprudence relating to the admissibility of evidence obtained by way of surreptitious surveillance: the first line of jurisprudence related to section 8 Charter cases considering admissibility, while the second line of jurisprudence related the consideration of the 3-part test for employers articulated in Doman Forest Products (1991) 13 L.A.C. (2d) 275. The remainder of Ms. Novakowski's presentation, and the discussion that ensued, was directed to whether the 3-part Doman test should be re-cast in light of the courts' approach to admissibility of evidence under section 8 of the Charter.
November 29, 2010
Guest Speaker: Elizabeth Denham, Information and Privacy Commissioner for British Columbia
Synopsis: At our Section's annual dinner meeting with the Information and Privacy Commissioner - the first such meeting for newly appointed Commissioner Denham - the focus of Commissioner Denham's presentation was an introduction for our Section members to her individual approach to her position as Commissioner and her philosophy of how the Commissioner should function in an oversight role. This included a discussion of the planned reorganization of the roles and priorities of the Office of the Information and Privacy Commissioner (the OIPC), including the creation of two new Assistant Commissioner positions, the implementation of a triaging system for managing complaints, and a renewed focus on the public policy and education mandate. Commissioner Denham then discussed several recent investigations and initiatives undertaken by the OIPC, and offered her views on the Special Committee Report on the Freedom of Information and Protection of Privacy Act (FOIPPA).
February 21, 2011
Guest Speaker: Benjamin Gould, Associate Professor, University of British Columbia Faculty of Law
Synopsis: The title of this presentation was "Why Privacy Matters: Privacy, Democracy, and the Limits of Police Power". The broad thrust of Professor Gould's talk focused on his approach to understanding privacy as a restraint on the power of the state to collect information about its citizens, as well as both an individual and a collective right. Professor Gould sought to balance the right to privacy against other, notionally competing interests, such as the right to security, including national security, and crime prevention and law enforcement. He argued that privacy rights enable the exercise of other fundamental rights, including freedom of association, religion and expression. Furthermore, he argued that surreptitious surveillance of citizens by the state (police) is counter-productive, insofar as it leads to a culture of distrust, in which information will not be offered voluntarily. Referencing certain section 8 Chartercases, including R. v. Morelli, R. v. Cornell and R. v. Grant, in which cases privacy is viewed by the courts as only an individual right, Professor Gould argued that the onus should not be on the right-holder to justify the exercise of the right, but rather on the state to justify the infringement. A lively question and answer session followed the presentation.
June 3, 2011
Guest Speakers: Elizabeth Denham, Information and Privacy Commissioner for British Columbia; Vincent Gogolek, Executive Director, Freedom of Information and Privacy Association; Monica Muller, Legal Counsel, Information Access, Vancouver Coastal Health Authority; Alexis Kerr, Section Chair and Moderator
Synopsis: This meeting featured a panel discussion that focused on the OIPC's recently released investigation report addressing BC Ferries' practice of simultaneous disclosure (i.e., disclosure of its responses to freedom of information requests on its website simultaneous to its release of the same response to the applicant). Mr. Gogolek spoke on behalf of Freedom of Information and Privacy Association (FIPA), which was responsible for filing the initial complaint about the BC Ferries practice with the OIPC. He explained the FIPA's preference for true, proactive disclosure of public body records and explained the FIPA's concern that the practice of simultaneous disclosure would serve to discourage, in particular, future freedom of information requests from media. Commissioner Denham then provided an overview of her approach to the investigation and her analysis of the issues, followed by an explanation of the proactive disclosure guidelines for public bodies that appears at the end of the investigation report. Finally, Monica Muller addressed the public body perspective, shedding light on some of the obstacles that public bodies face in implementing robust proactive disclosure programs. She then provided examples of steps taken by her own organization in an effort to enhance the transparency of its operations and its accountability to the public. Following the initial presentations by each panelist, questions were invited and received from the large in-person and webinar audience. All in all, this was an extremely well-attended and well-received presentation.
Comments and Observations of the Co-Chairs
Following an extremely busy 2009-2010 year in which the Section was actively engaged in preparing numerous submissions for the Special Committee Review of the FOIPPA, as well as in respect of proposed amendments to other relevant legislation, 2010-2011 was a relatively quiet year.
There were no proposed amendments introduced in the Legislature or circulated for stakeholder input on which the Section felt it could add value by way of a submission or letter. We do, however, expect that amendments to FOIPPA will be introduced during the 2011-2012 year. There were also several relevant bills introduced in Parliament - most of which died on the order paper prior to the election - in respect of which the National Privacy and Access Law Section prepared submissions and/or letters. The Section Executive was diligent in keeping our provincial members informed of opportunities to participate in these National Section initiatives.
In addition, with the appointment of a new Information and Privacy Commissioner and an ensuing significant reorganization in that office, our Section is still in the process of determining how we can best position the Section as a potential resource to OIPC in terms of providing input on draft guidelines, etc., as we have done with past Commissioners. That being said, we believe we have established a very positive relationship with the new Commissioner, and she has expressed her enthusiasm at being granted a regular opportunity through our Section meetings to make contact with the Freedom of Information and Privacy Bar.
With only four Section meetings held in the past year, this represented a decrease in the number of meetings over the previous several years. This was not due to a lack of ideas around topics or potential speakers, however we did encounter difficulties in scheduling any out-of-town speakers (e.g. the Privacy Commissioner of Canada) as a result of an apparent moratorium on travel budgets. Our members did benefit from being invited to the meetings of several other Sections, including the Social Justice and Public Lawyers Sections, and we were pleased to be able to offer the same courtesy to a number of Sections on several occasions. Generally speaking, when we have invited other Sections to attend our meetings, we have found their members eager to attend.
All in all, despite the relatively small number of meetings, we continue to have an active and engaged Section. This is demonstrated by a number of new faces that have joined our expanded Executive. As a result, we have already advanced our planing for the 2011-2012 slate of meetings to the point where we have one confirmed meeting in October (the Privacy Commissioner of Canada has kindly agreed to piggy-back a Section meeting on another conference at which she will be speaking), and two others well in the works.