I’m not a constitutional lawyer. So, it took me a fair amount of time this week to get through the news and legal opinion that was released by the Office of the Privacy Commissioner. What happened in Canada is that some people were critical of the OPC’s recommended changes to the old Bill C-11 (the proposed law to replace the Personal Information Protection and Electronic Documents Act that died on the order paper last year when the election was called).
I guess someone must have said the OPC’s proposed changes would render the new law unconstitutional for some reason. I don’t know who said that or how that argument works; but it was an issue the commissioner sought to clarify. He did so by hiring a constitutional lawyer to draft a lengthy legal opinion concluding that the OPC’s changes to Bill C-11 would have resulted in a constitutional law.
All of this seems to be part and parcel of long-standing debate in Canada about whether the protection of privacy is a federal or provincial responsibility (or both). This is because the constitution (from way back in 1867) divided powers between the two levels of government. First, the power to regulate trade and commerce was given to the feds. Second, the power to regulate civil rights was given to the provinces. Again, I’m not a constitutional expert, but I can definitely see how both might have roles to play when it comes to protecting privacy.
I wonder how this will all play out in the end. It might all be completely moot because we have no idea what the new law will look like. Will it be identical to the old C-11? Will it have incorporated some or all of the OPC’s recommendations? Or might it be something entirely new? Once it eventually becomes law, will the constitutional debate remain? Remember, when Canada's anti-spam legislation was first implemented, some people argued that it wasn’t constitutional as well — an argument that was recently put to bed when the Federal Court affirmed the anti-spam law as being constitutional.
I’ve asked the commissioner for a no-holds-barred keynote address at the IAPP Canada Privacy Symposium in a couple of weeks. Maybe some of this will bubble up then. And, speaking of the symposium, we are expecting a large and energetic crowd similar to the size we had in 2019. Don’t wait to the last minute before getting your pass.
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