It's a great question. Concerning the necessity standard, I understand why the section 1 framework is the one being suggested. It's a well-known kind of legal framework for proportionality analysis. In international human rights there's a necessary and proportional test as well, which is a great thing to take a look at.
My only hesitation on the necessity requirement is that the section 1 test, if you start to interpret it through the lens of existing jurisprudence, has largely been developed in the context of social legislation. The courts really focus on minimal impairment, and they don't focus on the kind of broader balancing that you would find, for example, in the traditional section 8 of the charter privacy cases. In those search and seizure cases, the “reasonable expectation of privacy” is understood as a kind of balancing. State interests are already balanced against privacy in that provision. Again, the ”reasonable and probable grounds” test is not a minimal impairment test; there is stronger protection for privacy in that kind of balancing.
My only hesitation is not to think that.... I think the necessity test and the section 1 framework are an improvement over what is in the Privacy Act right now, but I'm hesitant about its becoming a kind of stamp of approval for collections, uses, and disclosures, particularly in the context of starting to get into law enforcement or national security, because there is a more robust view of proportionality, I would argue, in section 8 and section 7 of the charter that is not reflected there. It's as if you're jumping to a section 1 justification when you haven't done the more robust analysis early on. I think that's a problem in those contexts.