Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 6, Protection of Privacy. Updated 27 February 2023. 24 NECESSARY, EFFECTIVE & PROPORTIONAL When a government institution is considering a new initiative – such as a new service, program, activity, or legislation – that involves collecting, using, or disclosing personal information, a key concern is to achieve the appropriate balance between the benefits of the initiative and its impact on individual privacy.58 Put another way: if an initiative involves an intrusion into privacy, a government institution will want to consider whether the impact on privacy is ‘reasonable and proportionate’ in the circumstances.59 Following the enactment of the Canadian Charter of Rights and Freedoms in 1982, the Supreme Court of Canada formulated a methodological test to determine whether the violation of a Charter right is nonetheless justifiable in a free and democratic society. Stemming from the case R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, this became known widely as the Oakes test. It requires: • Necessity: there must be a clearly defined necessity for the use of the measure, in relation to a pressing societal concern (in other words, some substantial, imminent problem that the security measure seeks to treat). • Proportionality: that the measure (or specific execution of an invasive power) be carefully targeted and suitably tailored, so as to be viewed as reasonably proportionate to the privacy (or any other rights) of the individual being curtailed. • Effectiveness: that the measure be shown to be empirically effective at treating the issue, and so clearly connected to solving the problem. • Minimal intrusiveness: that the measure be the least invasive alternative available (in other words, ensure that all other less intrusive avenues of investigation have been exhausted).60 58 Government of Manitoba, FIPPA for Public Bodies – Resource Manual, Chapter 6, Protection of Privacy at p. 6-10. Available at https://www.gov.mb.ca/fippa/public_bodies/resource_manual/pdfs/chap_6.pdf. Accessed on June 12, 2020. 59 Government of Manitoba, FIPPA for Public Bodies – Resource Manual, Chapter 6, Protection of Privacy at p. 6-10. Available at https://www.gov.mb.ca/fippa/public_bodies/resource_manual/pdfs/chap_6.pdf. Accessed on June 12, 2020. 60 Privacy Commissioner of Canada, A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century available at https://www.priv.gc.ca/en/privacy-topics/surveillance/police-and-publicsafety/gd_sec_201011/. Accessed on June 12, 2020. See also SK OIPC Advisory from the Office of the Information and Privacy Commissioner of Saskatchewan on questions, screening or testing by employers regarding COVID-19. Available at https://oipc.sk.ca/advisory-from-the-office-of-the-
RkJQdWJsaXNoZXIy MTgwMjYzOA==