Teresa Scassa - Blog

A battle over the protection of personal information in the hands of federal political parties (FPPs) has been ongoing now for several years in British Columbia. The BC Supreme Court has just released a decision which marks a significant defeat for the FPPs in their quest to ensure that only minimal privacy obligations apply to their growing collection, use and disclosure of personal information. Although the outcome only green-lights the investigation by BC’s Office of the Information and Privacy Commissioner into the Liberal, New Democrat and Conservative parties’ compliance with the province’s Personal Information Protection Act (PIPA), it is still an important victory for the complainants. The decision affirms the constitutional applicability of PIPA to the FPPs. The tone of the decision also sends a message. Its opens with: “The ability of an individual to control their personal information is intimately connected to their individual autonomy, dignity and privacy.” Justice Weatherill confirms that “These fundamental values lie at the heart of democracy” (at para 1).

The dispute originated with complaints brought in 2019 by three BC residents (the complainants) who sought access under PIPA to their personal information in the hands of each of the three main FPPs in their BC ridings. They wanted to know what information had been collected about them, how it was being used, and to whom it was being disclosed. This access right is guaranteed under PIPA. By contrast no federal law – whether relating to privacy or to elections – provides an equivalent right with respect to political parties. The Canada Elections Act (CEA) was amended in 2018 to include a very limited obligation for FPPs to have privacy policies approved by the Chief Electoral Officer (CEO), published, and kept up to date. These provisions did not include access rights, oversight, or a complaints mechanism. When the responses of the FPPs to the complainants’ PIPA requests proved inadequate, the complainants filed complaints with the OIPC, which initiated an investigation.

Disappointingly, the FPPs resisted this investigation from the outset. They challenged the constitutional basis for the investigation, arguing that the BC law could not apply to FPPs. This issue was referred to an outside adjudicator, who heard arguments and rendered a decision in March 2022. He found that the term “organization” in PIPA included FPPs that collected information about BC residents and that PIPA’s application to the FPPs was constitutional. In April 2022, the FPPs individually filed applications for judicial review of this decision. The adjudicator ruled that he would pause his investigation until the constitutional issues were resolved.

In June of 2023, while the judicial review proceedings were ongoing, the government tabled amendments to the CEA in Bill C-47. These amendments (now passed) permit FPPs to “collect, use, disclose, retain and dispose of personal information in accordance with the party’s privacy policy” (s. 385.1). Section 385.2(3) states: “The purpose of this section is to provide for a national, uniform, exclusive and complete regime applicable to registered parties and eligible parties respecting their collection, use, disclosure, retention and disposal of personal information”. The amendments were no doubt intended to reinforce the constitutional arguments being made in the BC litigation.

In his discussion of these rather cynical amendments, Justice Weatherill quoted extensively from statements of the Chief Electoral Officer of Canada before the Senate Standing Committee on Legal and Constitutional Affairs in which he discussed the limitations of the privacy provisions in the CEA, including the lack of substantive rights and the limited oversight/enforcement. The CEO is quoted as stating “Not a satisfactory regime, if I’m being perfectly honest” (at para 51).

Support for extension of privacy obligations to political parties has been gaining momentum, particularly considering increasingly data-driven strategies, the use of profiling and targeting by political parties, concerns over the security of such detailed information and general frustration over politicians being able to set their own rules for conduct that would be considered unacceptable by any other actors in the public and private sectors. Perhaps sensing this growing frustration, the federal government introduced Bill C-65 in March of 2024. Among other things, this bill would provide some enforcement powers to the CEO with respect to the privacy obligations in the CEA. Justice Weatherill declined to consider this Bill in his decision, noting that it might never become law and was thus irrelevant to the proceedings.

Justice Weatherill ruled that BC’s PIPA applies to organizations, and that FPPS active in the province fall within the definition of “organization”. The FPPs argued that PIPA should be found inoperative to the extent that it is incompatible with federal law under the constitutional doctrine of paramountcy. They maintained that the CEA addressed the privacy obligations of political parties and that the provincial legislation interfered with that regime. Justice Weatherill disagreed, citing the principle of cooperative federalism. Under this approach, the doctrine of paramountcy receives a narrow interpretation, and where possible “harmonious interpretations of federal and provincial legislation should be favoured over interpretations that result in incompatibility” (at para 121). He found that while PIPA set a higher standard for privacy protection, the two laws were not incompatible. PIPA did not require FPPs to do something that was prohibited under the federal law – all it did was provide additional obligations and oversight. There was no operational conflict between the laws – FPPs could comply with both. Further, there was nothing in PIPA that prevented the FPPs from collecting, using or disclosing personal information for political purposes. It simply provided additional protections.

Justice Weatherill also declined to find that the application of PIPA to FPPs frustrated a federal purpose. He found that there was no evidence to support the argument that Parliament intended “to establish a regime in respect of the collection and use of personal information by FPPs” (at para 146). He also found that the evidence did not show that it was a clear purpose of the CEA privacy provisions “to enhance, protect and foster the FPPs’ effective participation in the electoral process”. He found that the purpose of these provisions was simply to ensure that the parties had privacy policies in place. Nothing in PIPA frustrated that purpose; rather, Justice Weatherill found that even if there was a valid federal purpose with respect to the privacy policies, “PIPA is in complete alignment with that purpose” (at para 158).

Justice Weatherill also rejected arguments that the doctrine of interjurisdictional immunity meant that the federal government’s legislative authority over federal elections could not be allowed to be impaired by BC’s PIPA. According to this argument the Chief Electoral Officer was to have the final say over the handling of personal information by FPPs. The FPPs argued that elections could be disrupted by malefactors who might use access requests under PIPA in a way that could lead to “tying up resources that would otherwise be focused on the campaign and subverting the federal election process” (at para 176). Further, if other provincial privacy laws were extended to FPPs, it might mean that FPPs would have to deal with multiple privacy commissioners, bogging them down even further. Justice Weatherill rejected these arguments, stating:

Requiring FPPs to disclose to British Columbia citizens, on request, the personal information they have about the citizen, together with information as to how it has been used and to whom it has been disclosed has no impact on the core federal elections power. It does not “significantly trammel” the ability of Canadian citizens to seek by lawful means to influence fellow electors, as was found to have been the case in McKay. It does not destroy the right of British Columbians to engage in federal election activity. At most, it may have a minimal impact on the administration of FPPs. This impact is not enough to trigger interjurisdictional immunity. All legislation carries with it some burden of compliance. The petitioners have not shown that this burden is so onerous as to impair them from engaging with voters. (at para 182).

Ultimately, Justice Weatherill ruled that there was no constitutional barrier to the application of PIPA. The result is that the matter goes back to the OIPC for investigation and determination on the merits. It has been a long, drawn out and expensive process so far, but at least this decision is an unequivocal affirmation of the application of basic privacy principles (at least in BC) to the personal information handling practices of FPPs. It is time for Canada’s political parties to accept obligations similar to those imposed on private sector organizations. If they want to collect, use and disclose data in increasingly complex data-driven voter profiling and targeting activities they need to stop resisting the commensurate obligations to treat that information with care and to be accountable for their practices.