The Superior Court of Quebec orders the government to pay $385,000 to Jean Charest for unlawfully disclosing his personal information during an investigation by the Permanent Anti-Corruption Unit (UPAC). The case is not trivial, the amount is even less so. But above all, it should be seen as a strong signal in terms of privacy and data protection, not only for the former Premier of Quebec, but also for all Quebecers.
A sensational story often comes with the same ingredients: power, secrecy, drama. It’s all there in this case. In April 2017, following on from the Charbonneau commission, a newspaper article cast opprobrium on Jean Charest, Premier of Quebec from 2003 to 2012, by linking him to the Mâchurer investigation into the financing of the Liberal Party of Quebec, and this, on the basis of information obtained from an unknown source within the UPAC.
There follows a series of investigations and projects to find the “bandit” at the origin of the leak, all strewn with twists and controversies of all kinds. Result: no less than 54 leaks from UPAC, but no proof as to the identity of the perpetrator(s). In February 2022, the UPAC closed the Mâchurer investigation without any charges being brought against anyone. The story is therefore closed, even if the mystery of the mole remains intact.
However, confidentiality only lives once. This is the challenge for the principal concerned, Jean Charest. Indeed, by disclosing his name associated with a UPAC investigation file as well as other nominative and biographical data (including residential addresses, telephone number, date of birth, marital status, background, etc.), this is in fact personal information that has not been protected under applicable laws. At a time when data protection is on everyone’s lips, particularly with the adoption of Bill 25 and the increase in the budget of the Commission d’accès à l’information du Québec1, this decision pushes the nail.
UPAC, under the authority of the Anti-Corruption Commissioner, is certainly endowed with broad powers, including the right to obtain personal information held by other public bodies without the person concerned being informed. This does not mean, however, that there are no safeguards. UPAC is at all times required to respect the constitutional right to privacy and remains responsible for protecting the personal information it holds.
Indeed, beyond the extravagant nature of the case, the UPAC is essentially criticized for not having taken sufficient measures to protect the personal information of Jean Charest. Although the decision makes the economy of an exhaustive analysis of the breaches of the law, a certain number of examples are mentioned in a scattered way. First of all, UPAC’s document management seemed flawed since there was no measure to prevent the consultation, reproduction or sending by e-mail of documents without the person or medium at the time being identified. source of the leak. In addition, like any public body, in the absence of consent, UPAC could not communicate personal information to the media under the law. This observation is not unique to UPAC and concerns any organization holding personal information.
Then comes the question of the sensitivity of the information in question as well as the expectation of privacy of a public figure. And, again, there are some lessons to be learned from this case. On the one hand, personal information may be more sensitive because of the context in which it is communicated. Concretely, it is not so much the disclosure of the name of Jean Charest which poses a problem as its juxtaposition to the Mâchurer investigation and the risks of condemnation by the public. “The personal information disclosed is not trivial”, in summary.
This was then the case for Jean Charest when disclosing his personal information. Further, we must think of the illegal manipulation of information from public figures, who are sometimes in situations of vulnerability inversely proportional to their notoriety. This consideration also played an important role in the awarding of compensation: “A significant amount must be granted to remind all public bodies, whether it be UPAC, the Agence du Revenu du Québec, the Director of civil status, or others, […] their obligation to protect the personal information they hold, even if they believe they will benefit from an anonymous and unlawful disclosure of the private information of a public figure. »
The Court struck hard by awarding Jean Charest $35,000 in compensatory damages and $350,000 in punitive damages. There is much to be said for the motives in support of this quantum. However, this is a warning for all organizations, not just UPAC, to take the right to privacy seriously… at the risk of paying a heavy price. Last bit of irony: Law 25 with its new record penalties and fines hasn’t even come into force… Listen up.