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Privacy Law Resources |
The Canadian Charter of Rights and Freedoms does not include an explicit right to privacy although the courts have, in some judgments, acknowledged a reasonable expectation of privacy protection. The first source for this expectation is Section 7 of the Charter which establishes that, "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The second source is Section 8, a protection against unreasonable search and seizure.124 While some arbitrators in disputes have used this principle in issues relating to workplace privacy, in general, employees in the private sector cannot rely on any existing regulation or constitutional protection to assert privacy claims.
In Ontario, video surveillance of public sector employees is regulated by the provincial Freedom of Information and Privacy Act 1990 and the Municipal Freedom of Information and Protection of Privacy Act 1990, which are substantially similar laws. Videotape recordings are explicitly included within the definition of "personal information" in both Acts. The Acts prohibit the collection of personal information unless one of three conditions is satisfied:
* the collection is expressly authorised by statute;
* the information is used for the purposes of law enforcement; and
* the collection is necessary to the proper administration of a lawfully authorised activity.125
When such collection of personal information occurs, the individual concerned should be notified unless:
* the head of the public sector institution refuses to disclose the personal information for law enforcement purposes;
* the Minister waives the notice; and
* the regulations provide that the notice is not required.126
Under a regulation issued pursuant to the Act, notice is not required providing the head of the institution "makes available for public inspection a statement describing the purpose of the collection of personal information and the reason that notice has not been given,"127 so long as:
* the provision of notice would frustrate the purpose of collection;
* the provision of notice might result in an unjustifiable invasion of another's individual privacy;
* the collection is for the purpose of determining suitability or eligibility for an award or honour.128
In a recent Investigation Report129, the Information and Privacy Commissioner concluded that covert video surveillance of a public service employee whose conduct had raised suspicion of serious misconduct was in accordance with the Act. The Commissioner determined that collecting personal information through covert surveillance of the employee was necessary in order for the Board to properly exercise its lawfully authorised management function of discharging an employee for just cause.
Another Investigation Report, of a provincial public sector organisation, found the use of video surveillance for security purposes justified at entrance and exit points of the building and at access doors, but not justified within corridors of the building during office hours because this could facilitate the monitoring of individuals' movements. The justification of surveillance was based on a recognition that the protection of personnel and assets was a lawfully authorised activity under the legislation governing the public sector organisation in question.130 The employer had not complied with the Act in failing to provide adequate notice of surveillance, in its use of the tape, and in its disclosure of information to the employee's supervisor without proper authority.
The limitations of existing privacy protections were highlighted by the Information and Privacy Commissioner of Ontario in the 1993 Report, Workplace Privacy: The Need for a Safety Net.
"Ultimately, all employees in Ontario have a right to a privacy safety-net...At present, the IPC believes that an adequate safety-net does not exist. The IPC rejects the use of voluntary guidelines as the mechanism to address workplace privacy issues - changes to address workplace privacy issues now and in the future cannot be effectively brought about and maintained through voluntary guidelines. Alternately, the IPC endorses the need to move forward to legislative action...within the context of a genuine multi-sector consultation process."131
The Commissioner's report advocated that covert surveillance should only occur in "extraordinary circumstances" where there is "demonstrable cause for or suspicion of guilt".