Did BC Conservatives Breach Voters’ Privacy?

[Editor’s note: Charlie Smith was an Independent candidate in Richmond-Bridgeport in the recent provincial election. This is an edited version of a post made to his blog.]

When Teresa Wat abandoned her BC United colleagues on July 29 and joined the BC Conservatives, her former caucus made an allegation.

“BC United is claiming Teresa Wat’s team downloaded a significant amount of confidential member information prior to her decision to leave,” tweeted Global News BC reporter Richard Zussman.

This raises a bunch of questions:

Is this true? BC United did not provide proof of its allegation.

If it is true, was it membership information for Richmond-Bridgeport or membership information for other Richmond constituencies or membership information for the whole province?

If this membership information was downloaded, was it shared with the BC Conservatives or used in the BC Conservative campaign?

Under Section 6 of B.C.’s Personal Information Protection Act, an organization must not disclose personal information about an individual unless the individual gives consent to the disclosure. Other sections outline what constitutes “implicit consent” and limitations on the use of personal information and its use without consent. If downloading occurred, did this violate the spirit or the letter of the Personal Information Protection Act?

Section 34 of the act states: “An organization must protect personal information in its custody or under its control by making reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification or disposal or similar risks.” Did BC United make reasonable security arrangements? If not, did any action by BC United or Wat’s team breach the privacy rights of BC United members who had shared personal information with their party?

Under Section 36 of the Personal Information Protection Act, information and privacy commissioner Michael Harvey can initiate investigations and audits. He can do this to ensure compliance with any provision of the act.

Under Section 42 of the Freedom of Information and Protection of Privacy Act, the commissioner has authority to conduct investigations and audits to ensure compliance with any provision of this act. He can also issue a legally binding order following an investigation.

Under the B.C. Privacy Act, it is “a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.” If BC United membership information was downloaded in a way that violated the Personal Information Protection Act, would this constitute a tort, i.e., a civil wrong? And if so, who could file this claim and who would be the defendant? Would the party be liable or would a person who did the downloading be liable? Would members of BC United be in a position to claim damages? Or could this extend to former MLAs who ran as Independents, as they too are members? Could liability extend to the BC Conservatives if it could ever be proven in court that they were part of a conspiracy to download information belonging to BC United about BC United members?

Could candidates from other parties have a legal claim if the BC Conservative campaign relied in part on BC United membership lists or membership lists from other parties, including at the civic and federal levels?

These are serious questions. Fortunately, the citizens of Saanich North and the Islands have elected one of B.C.’s foremost privacy law experts as their new BC Green MLA. Rob Botterell led the team that created the Freedom of Information and Protection of Privacy Act. He also offered advice on the Personal Property Security Act, according to his personal website.

Botterell is highly regarded in this area of law. B.C. is very lucky to have him in the legislature when such a thorny issue has emerged.

At the very least, information and privacy commissioner Harvey, who has the power, should order an investigation into BC United’s handling of membership lists.

But it’s best if Harvey isn’t the investigator or adjudicator. That’s because he is an officer of the legislature. He was hired by all MLAs, who have the power to reappoint him when his current six-year term expires in 2030. The soon-to-be-sworn-in BC Conservative caucus will be part of the group that is Harvey’s de facto employer.

There’s a very famous legal phrase issued more than 100 years ago, which applies in this situation. In R. v. Sussex Justices, Lord Chief Justice Hewart declared: “Justice must not only be done but must manifestly and undoubtedly be seen to be done.”

For justice to be seen to be done, Harvey must assign the investigation and adjudication of this issue to an outside party. It requires someone who will be universally viewed as a disinterested decision-maker. It cannot be anyone on the payroll of the B.C. legislature.

The biggest question is this: Was the BC Conservatives’ success in the election linked in any way to a violation of provincial privacy legislation? There’s no evidence of that. But if it turned out to be true, what is the remedy for opposing candidates and for members of the BC United party?

Furthermore, did BC United Leader Kevin Falcon know whether the BC Conservatives had membership information when he prohibited nominated candidates from running under the party banner? Was this a topic of discussion in his negotiations with Conservative Party of BC Leader John Rustad?

Again, there is no proof that any individual or political party broke any laws. This could be determined only through an independent investigation by a disinterested decision-maker followed by a legal order. That order would then be the subject of judicial review in B.C. Supreme Court.

The citizens of B.C. deserve answers to reassure their privacy is protected.