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In the wake of the recent Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, which found Alberta’s private sector data protection statute to be unconstitutional for violating the freedom of expression, the Quebec Court of Appeal has recently released a decision that also examines the relationship between privacy and the freedom of expression.

In 9179-3588 Québec inc. (Institut Drouin) c. Drouin, the appellant company challenged a court order that it cease to distribute information found in the 2003 Quebec electoral list, and that it destroy all data it obtained from that list. The company offers services to those interested in genealogy. In 2005 it began distributing, free of charge and over the internet, a directory which was largely composed of data taken from Quebec’s 2003 electoral list. How this information came into the company’s hands is unknown; the public release of this data by the electoral office was not permitted under its legislation. The information on the list included the names, addresses, gender and age of all persons over the age of 18 living in Quebec in 2003. While this initial online distribution ceased after complaints from Quebec’s electoral office, in 2006 the company began selling a version of the directory. Quebec’s electoral office took legal action to stop any further distribution of the information and to attempt to recover the copies of the directory that had been sold. They were successful at first instance, leading to an appeal before the Quebec Court of Appeal.

The appellant company argued on appeal that its constitutional rights to freedom of expression were violated by the court order that prevented its distribution of the information. It also argued that the information at issue was essentially public in character, and that an exception in the province’s private sector data protection legislation permitted the distribution of such information.

Justice Dalphond, writing for the unanimous court, began by outlining the protection available under Quebec’s Election Act. The Act specifically provides that the electoral list is confidential, and that the information relating to voters is not public information within the meaning of the province’s access to information legislation. In rejecting the argument that the information was public in character, Justice Dalphond relied not only on the terms of the Election Act, but also on the fact that the kind of information provided in the list is such that it could allow others to draw inferences about the social status (for example, elderly persons living alone), economic status, sexual orientation, or even the number of persons living in a single home. The Court found that this information that could be derived from the list was not public in character.

Quebec’s private sector data protection legislation contains an exception for the free dissemination of information – similar in purpose, though quite different in wording, to that which posed a problem in the United Food and Commercial Workers case. The Quebec statute provides that it does not apply “to journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public.” The appellant argued that as a private sector corporation, this provision left it free to disseminate the electoral information. The Court of Appeal disagreed. Justice Dalphond observed that the private sector data protection statute was not meant to override privacy protections available under other statute. In this case, the specific provisions in the Election Act that prohibited the distribution of the information took precedence, as clearly set out in s. 94 of the Election Act.

The appellant company next argued that its freedom of expression was being unduly limited by the bar on distribution of the information. In this case, the information should not ever have come into the company’s hands – information had somehow been illegally shared. However, the court noted that the fact of an initial improper leak did not limit freedom of expression rights. It compared the situation to the journalism context, where journalists are bound by their own obligations of confidentiality, but are not limited in the distribution of information that has provided to them by sources who themselves have breached obligations of confidentiality. Justice Dalphond noted that such leaks are often of great public interest, and he concluded that the fact that the source might have illegally shared the information does not prevent the recipient from relying upon the Charter guarantee of freedom of expression.

Because the Election Act prohibits anyone from disclosing the information on the electoral list, the Court next considered whether this prohibition violated the freedom of expression. It found that the distribution of information relevant to genealogical inquiries was protected expression. However, because the disclosed information was also personal information, the right to freedom of expression had to be balanced against privacy rights which were quasi-constitutional in character. The court found that the protection of privacy was a pressing and substantial issue, and that the ban on using the information was rationally connected to the goal of privacy protection. It also found that the prohibition on using the information was minimally impairing given that the distribution of the information by a third party would completely strip individuals of any control over the personal information that they had provided to the government under a guarantee that the information would be kept confidential and that it would be used only for electoral purposes. The Court concluded that these measures were proportional to the objective, and noted that the result was not a ban on the practice of genealogy – it merely required those seeking their origins to rely on other databases and data sources. The Court concluded that there was no violation of freedom of expression in prohibiting the dissemination of the information, as any limit was justifiable in a free and democratic society.


Published in Privacy

My colleague Michael Deturbide and I are very honoured to have been awarded the 2013 Walter Owen Book Prize for our new book Electronic Commerce and Internet Law in Canada, published by Wolters Kluwer (CCH). We are very grateful to the Foundation for Legal Research, which awards this prize, and which also has been a strong pillar of support for legal research in Canada.


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