Whither Privacy of Health Information at the Supreme Court of Canada

• Author: Elaine Gibson
• Pages: 317-336

317

Whither Privacy of Health Information

at the Supreme Court of Canada

elaine gibson

A. INTRODUCTION

In this chapter I cover the major health information cases decided by the Su-

preme Court of C anada over the sp an of the last t wenty-ve years , commencing

in . e lion’s share have arisen in the criminal law context. With some

notable exceptions, we see a sharply divided Court in the jurisprudence of the

s and s right through to the present. It is my submission that this

stems, at least in part, from lack of a clear vi sion of the privacy interest, which

then feeds into a lack of clarity in balancing such interest against other rig hts.

e chapter commences with a discussion of the concepts of condentiality

and privacy. While condentiality is the more readi ly understandable notion,

the Supreme Court of Canada has sometimes failed to grasp its importance, as

revealed in the pre-Charter case of Canada (Solicitor General) v. Ontario (Roy-

al Commission of Inquiry into the Condentiality of Health Records). I then

delve into the analysis of privacy, nding it to be discussed mostly in terms of

the core values underlying it rather than attempting to dene what it actually

is. In the next section, I discuss the few health in formation cases decided under

civil or common law; as we shall see, in all t hree the judgment was unanimous.

e following section covers the use of bodily substances —that is, blood test-

Canadian Charter of R ights and Freedoms, Part I of the Constitution Act, , being

Schedule B to the Canada Act  (U.K.), , c.  [Charter].

Canada (Solicitor Gene ral) v. Ontario (Royal Commission of Inqui ry into the Condenti-

ality of Health Record s), [] S.C. R. .

318 Health Law at the Supreme Court of Canada

ing for alcohol levels, and the securing of  samples—in the detection of

criminal activity; again, we see a court united. I then analyze cases wherein a

sexual assault complainant’s counseling or other personal records are sought by

the accused/defendant in order to attempt to discredit the complainant’s testi-

mony. It is in this series of cases that divisions within the court come sharply

into focus. Finally, I examine cases regarding the use of health i nformation by

the justice system for the prevention of criminal activity in the longer term:

in two cases, the results of psychiatric examinations; and in two other cases,

 samples for entry into the national  databank. In these cases the split

within the Court is dramatic.

e lar ger clai m I make i s that where condenti ality i s an iss ue, as exe mpli-

ed in the civil cases, the Court’s understanding is both solid and united. Li ke-

wise, in the cases concerning the taki ng of bodily substances for the detection of

crime, where the balancing of rights are primari ly those of the individual versus

the state, members of the Court generally see t to agree with each other. How-

ever, when other interests are thrown into the balance— longer-term protec-

tion of the public from future criminal activity, rights of complainants in cases

of sexual assault, right to full answer and defence— there is a lack of clarity in

denition of the privacy interest and in how this interest is to be weighed in the

balance against other interests. Further, a review of case law in this area since

 suggests a pulling ba ck from attempts to clarify the meaning, underlying

values, and importance of privacy in the jurisprudence.

B. CONFIDENTIALITY AND PRIVACY

e right to condentiality i n patient records is long-established at the Supreme

Court of Canada. As far ba ck as , the Court stated that personal health in-

formation “is the secret of the patient, and, normally, is under his control, and

not under that of the doctor. Prima facie, the patient has the right to require

that the secret shall not be divulged; and that right is absolute, unless there is

some paramou nt reason which overri des it.”

However, the Court has not always done well in its approach to issues of

condentiality. In the fascinating pre-Charter case of Canada (Solicitor Gen-

eral) v. Ontario (Royal Commission of Inquiry into the Condentiality of Health

Records), Justice Krever was appointed to head a Commission investigating pos-

sible misconduct by the Royal Canad ian Mounted Police in combing patient

Halls v. Mitchell, [] S.C.R.  at .