Dec 232010
 

UPDATE (POST-TRIAL):

I checked with a senior professor of law about the Oakes Test (protects Charter Rights)  – – is it still taught?  I am assured – – yes, it is a mainstay of Canadian law.

(From #3 below:   Section 1 of the Charter can be used to override charter rights, if the good of the larger society is more important than the individual right and freedom.     BUT there are tests (the Oakes test) that must be passed, in order to allow an override.)

THE (UN)TRUTH OF THE MATTER?  The Oakes Test is a seriously bad, easily understood MYTH.   See:  The Oakes Test to over-ride Charter Rights.  How Prosecutors get around it.

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UPDATE   Feb 2016:  From posting   http://sandrafinley.ca/?p=16207

RE:    former Chief Statistician agrees with the premise of your second reason (Charter Right to Privacy). He states that while the mandatory collection of personal information is in violation of the charter right, however it is a ‘legitimate violation of the right’ (the idea that rights may be rescinded for a social good) because it is a recognized necessity as outlined in the statistics act.

 

MY REPLY:

Yes, the Government may rescind the rights of an individual.  However,

  1. The Statistics Act does not give the Government the authority to do that.  StatsCan cannot just declare that this is so.  Charter Rights – – Constitutional Laws – –  trump regular legislation such as the Statistics Act.
  2. In order to override a Charter Right of individual citizens (and thereby all citizens), the Government has to pass the “Oakes Test“.

If StatsCan wishes to take away Canadians’ Charter Right to Privacy of Personal Information, it would have to make an application for a “Section 1 over-ride” to the Courts, supplying the Court with the arguments to satisfy the Oakes Test  (“pressing and substantial” concern, sanctions are “reasonable and demonstrably justified”,  “proportionality” between the sanction and the offence and so on – – details below) .   The Court would have to agree that the Government met the Oakes Test criteria, and grant StatsCan the authority to over-ride our Right to Privacy of Personal Information.   StatsCan (nor the Justice Dept)  has even made such an application, let alone obtained a Court Ruling.   So the Charter Right stands.

In my humble opinion, StatsCan/Justice Dept have not applied to the Courts for an override because it is doubtful they can meet the standards set by the Oakes Test.  A Court ruling would go against them.   Read on – – what do you think?

 

THE LEGAL ARGUMENT

THE CHARTER RIGHT TO PRIVACY OF PERSONAL INFORMATION:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”

 

(NOTE, Additional postings related to the LEGAL ARGUMENT:  go to the right-hand sidebar, to “Categories”, under that to “Rule of Law”)

 

UPDATE TO THE MATERIAL BELOW, October 2013:   See  My case is “dismissed, without costs”.  (Means that I lost the case.)

Includes the difficulty with the Summary that informed the decision whether the case would be heard by the Supreme Court of Canada (SCC).

 

CONTENTS OF THIS POSTING

(1)   THE CASE LAW ASSOCIATED WITH SECTION 8 OF THE CHARTER OF RIGHTS AND FREEDOMS PROTECTS PRIVACY OF PERSONAL INFORMATION, R. v. Plant.

Also,  see Charter argument Privacy of personal information, REASONABLE,  R. v. Edwards, [1996] 1 S.C.R. 128

(2)   THE STATISTICS ACT IS UNCONSTITUTIONAL, THE CHARTER RIGHT TO PRIVACY OF PERSONAL INFORMATION IS A HIGHER LAW

(3)   DOUBTFUL THE GOVERNMENT CAN MEET THE “OAKES TEST” TO OVERRIDE THE CHARTER RIGHT TO PRIVACY IN RELATION TO THE CENSUS.

(4)   AND IN MY TRIAL, THE CROWN DID NOT ARGUE AN OVERRIDE OF THE SECTION 8 CHARTER RIGHT.  BUT THE CHARTER RIGHT WAS IN FACT OVER-RIDDEN.

(5)  WHY do we have a Charter Right to privacy of personal information?

(6)  ELABORATION, EMAIL SENT TO THE CBC, YES THERE IS A LEGAL RIGHT TO PRIVACY OF PERSONAL INFORMATION  Dec 19, 2010

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(1)  THE CASE LAW ASSOCIATED WITH SECTION 8 OF THE CHARTER OF RIGHTS AND FREEDOMS PROTECTS PRIVACY OF PERSONAL INFORMATION, R. v. Plant

(See also:  Charter argument Privacy of personal information REASONABLE:  R. v. Edwards, [1996] 1 S.C.R. 128 )

The case law (R. v. Plant) associated with Section 8 of the Charter (protection against undue “search and seizure”) says that the Government cannot force people to hand over a “biographical core of personal information”.

R. v. Plant, [1993] 3 S.C.R. 281

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”

Section 31 of  The Statistics Act makes it a punishable offence (jail and a fine) not to hand over the information requested on the Census form.  I received the “long form”.  It contains about 50 questions, many of them personal.

The Statistics Act is in contravention of the case law associated with Section 8 of the Charter.  And the Government likely cannot meet the test (“Oakes test”) to override the Charter Right.

The StatsCan mantra is “you will be prosecuted, fined and jailed” if you don’t comply with the census.  Additionally, your province or community will not receive transfer payments or Government funding if you don’t participate.

The situation is exacerbated by the fact that the American military through Lockheed Martin Corporation (contractor) and IBM (sub-contractor) will in time have access to the Canadian census data base.  Part of the census work was “out-sourced”, effectively to the American military (Lockheed Martin) starting in 2003 and continues in spite of citizen protest.

It is possible that the June 29th announcement by the Government that the census long form is no longer mandatory is a consequence of my trial.   And/or, it may be that the furor in the U.S. over their census (2010) had influence.

(UPDATE:  although the Conservative (Harper) Government SAID that the long form is no longer mandatory, it never did pass legislation to change the law.  They did one better:  the census long form is now called the National Household Survey.  By moving the data collection OUTSIDE the census – – i.e. by making it a “survey” instead of the “census long form”,  they DID make it voluntary – – “surveys” are voluntary.

However, StatsCan tells citizens that the surveys ARE mandatory and failure to answer the questions is subject to fines and jail time.

The effect of changing the data collection from “census” to “survey” is to enable the collection of information on citizens on an on-going basis,  360 days a year, every year  – –   in contrast, census data collection can only be done once every 5 years.  Surveys can be done anytime and always, if authorized by the Government through an Order-in-Council.)

At Court on March 17, I was no longer representing myself.  Had I continued to represent myself I would have lost the case, as happened to Todd Stelmach and Darek Czernewcan.  With the expertise and experience of Steve Seiferling (lawyer) we have a much better chance of successfully defending the Charter Right to privacy of personal information.   (We were not successful!)

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UPDATE  October 2013:  In the end, my case went as far as the Saskatchewan Court of Appeal.    The “guilty” decision of the Saskatchewan Courts stands.  They say there is no reasonable expectation of privacy if the demands for personal information come from Statistics Canada through a Census long form(which doesn’t actually exist any longer – it is now the National Household Survey and the number of questions is expanded).   (BUT  January 2016, the Liberal Government is re-instating the mandatory Census Long Form.)

THE JUDGMENT:   2013SKCA047 Census Judgment SKCA

(UPDATE:  In order to uphold the Charter Right to privacy of personal information we sought leave-to-appeal to the Supreme Court of Canada.

We were denied leave to appeal, which means we lost the case.

The finding of the Appeal Court in Saskatchewan applies in Saskatchewan; it is a bad precedent, but is not binding on other provincial appeal courts.)

 

(2)  THE STATISTICS ACT IS UNCONSTITUTIONAL, THE CHARTER RIGHT TO PRIVACY OF PERSONAL INFORMATION IS A HIGHER LAW

Constitutional rights take precedence over the law that is set out in regular legislation such as the Statistics Act.

The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution.

Our Charter Right to Privacy of personal information therefore overrides the Statistics Act.

UNLESS the Government can show that there is a greater value to the people of Canada if individual Charter Rights are extinguished.

BUT even then  the Government has tests or criteria that it must pass in order to be able to override our Charter rights.

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(3)  DOUBTFUL THE GOVERNMENT CAN MEET THE “OAKES TEST” TO OVERRIDE THE CHARTER RIGHT TO PRIVACY IN RELATION TO THE CENSUS

(The Oakes Test was never argued in my trial, as explained below.)

Section 1 of the Charter can be used to override charter rights, if the good of the larger society is more important than the individual right and freedom.     BUT there are tests that must be passed, in order to allow an override.

THE OAKES TEST TO OVERRIDE CHARTER RIGHTS

Is there a “pressing and substantial” concern such that I must tell the Government (for example) how many bedrooms are in my house? (one of the questions on the “census long form” which I received and did not fill out).

Is there “proportionality”?  –  The Statistics Act allows the Government to put me in jail for 3 months and fine me $500 if I do not comply with the census.  Is there “proportionality” between the sanction and the offence? (elaboration below).

 

I have a constitutional right not to be forced to hand over “a biographical core of personal information”.  Legislation that forces me to do so (the Statistics Act) is unconstitutional, unless it passes the test for an override:

http://en.wikipedia.org/wiki/R._v._Oakes

The Court presents a two step test to justify a limitation (INSERT: of an individual’s Charter Rights and Freedoms) …

  • First, it must be “an objective related to concerns which are pressing and substantial in a free and democratic society“, and
  • second it must be shown “that the means chosen (INSERT: 3 months in jail and a fine of $500) are reasonable and demonstrably justified“.

 

The second part is described as a “proportionality test” which requires the invoking party (the Government) to show:

  • First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.   (i.e. 3 months of jail and a fine of $500 must be shown to have a logical connection to the objective of the Census)
  • Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question.
  • Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.

(example using two actual questions on the Census long form – –   it is of sufficient importance that the Government know  what language I spoke at home when I was 5 years old, and how many bedrooms are in my home – – it is important enough that they can impose 3 months in jail and a $500 fine (“the effects of the measures” responsible for limiting the Right to Privacy)  if I refuse to give up my Charter Right to Privacy of personal information.)

Note:  this is about the Census.  It is not about StatsCan “Surveys” because the Statistics Act says that surveys are not mandatory – – no matter what StatsCan might tell you.  See  Are StatsCan “surveys” mandatory?

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4. IMPORTANT: IN MY TRIAL, THE CROWN DID NOT ARGUE AN OVERRIDE OF THE SECTION 8 CHARTER RIGHT. BUT THE CHARTER RIGHT WAS IN FACT OVER-RIDDEN.

Steve (lawyer) writes, 2013:   (I, Sandra,  added the parentheses.)

The “override” you’re talking about is section 1 of the Charter, which was not raised by the Crown, so it was not considered by Judge Whelan (Provincial Court, guilty decision) or Justice Conkin (Court of Queen’s Bench, guilty decision upheld).

Judge Whelan’s decision focused on whether the search was “reasonable” under section 8 of the Charter.

As I had previously understood lawyer Steve’s explanation:

  • under the procedures we, the defendants, could not place the argument against an override of the Section 8 Charter Right before the Court. The argument for an override had to be originated by the Crown, and then we could have placed the opposing argument, defending against an override.

(INSERTED:  The Judge asked the Prosecutor a few times, if he was going to argue a Section 1 override of my Charter Right to privacy of personal information. The prosecutor consistently said “no”.  I was confused by this.  My understanding of the law was that the Crown effectively wanted to extinguish my right to Privacy of Personal Information.  And would therefore be compelled to successfully argue the Oakes Test (which I didn’t think they could do).   As became clear,  the Prosecution would have been crazy to follow the prescribed procedure for override on a Charter Right.  Read on.)

For me, the EFFECT of the Crown not arguing a Section 1 override:

I was given a conditional discharge, but at the base, I was found guilty of non-compliance – – which has the effect of removing the Charter Right to privacy of personal information.

The OAKES TEST is specifically a TWO-PART test, with a 1. AND a 2. The Crown Prosecutor and Judge did not consider it, although it is the procedure established by law to override a Charter Right.

We were denied the ability to make the Oakes Test arguments against an override of the Charter Right to privacy of personal information. The Judge did not have to address those arguments in her decision through the simple mechanism of not calling it a Section 1 override.

The “REASONABLENESS” addressed by the Judge, as I understand, was whether it was reasonable for the Government to collect the information (because it is valuable information).

“THE OAKES TEST” (described above)  received short shrift:

  1. Did the Government have “an objective related to concerns which are pressing and substantial in a free and democratic society“, AND
  2. Did it show “that the means chosen (3 months in jail and a fine of $500) are reasonable and demonstrably justified“?  To meet this test the Prosecutor had to show 3 more things  (the “proportionality test“):
    • The measures adopted must not be arbitrary, unfair or based on irrational considerations. They must be rationally connected to the objective.  And,
    • Even if rationally connected to the objective in this first sense, they should impair “as little as possible” the right or freedom in question.
    • Also, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.

There may, of course, be something that I am not seeing, or am not understanding. Please advise me.

THE  (UN) TRUTH   OF THE MATTER?

  1. The Oakes Test is a seriously bad, easily understood myth.   See:  The Oakes Test to over-ride Charter Rights.  How Prosecutors get around it.
  2. Which means that Charter Rights are extremely vulnerable.  The legal procedure to protect them needs to be changed —  see #1  (a short posting).

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(5)  WHY do we have a Charter Right to privacy of personal information?

See  THE ROLE OF MECHANIZED CENSUS DATA IN NAZI EUROPE (THE HOLOCAUST), COMPLIMENTS OF IBM.  That’s one good reason.  Comprehensive files on individual citizens is a characteristic of militaristic, fascist states  – – has always been.

Prime Minister Pierre Elliott Trudeau was the driving force behind getting a Canadian Charter of Rights and Freedoms.

The Charter came well before Edwin Black’s book, “IBM and the Holocaust, the strategic alliance between Nazi Germany and America’s most powerful corporation”  (2001) .  The book is a meticulous documentation of the role of mechanized census data in Nazi Europe.

The Charter of Rights and Freedoms, and the application (interpretation) of it by the Supreme Court of Canada, are tools we can use to prevent a re-occurrence of Nazi Europe or anything like it.

Even prior to the publication of “IBM and the Holocaust” enlightened Canadian leadership understood the dangers of state collection of data on its citizens, the need for a tool to prevent the state from encroaching upon the privacy of the individual.  We were given a Charter of Rights and Freedoms.  It is useless if we don’t stand up and use it in times such as this.

An understanding of history, (“IBM and the Holocaust”) dictates we do so.

(Add the link to George Orwell’s “Animal Farm” which perfectly describes the erosion of the memory of democratic ideals we once had and how they are manipulated out of existence (“newspeak”, etc.)

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(6)  ELABORATION, EMAIL SENT TO THE CBC, YES THERE IS A LEGAL RIGHT TO PRIVACY OF PERSONAL INFORMATION  Dec 19, 2010

Sunday Dec 19, CBC Radio, The Sunday Edition,  Host Michael Enright

http://www.cbc.ca/thesundayedition/

Click on Hour 1,  Excellent panel discussion on Privacy,  Starts halfway through hour 1

Email sent Dec 19, 2010:

SUBJECT:  Yes, there is a Legal right to Privacy in Canada

Dear Michael,

The discussion on privacy was informative and thoughtful – – all in all excellent!  Thank-you very much.

As I understood it, you posed the question of whether there is a legal right to privacy in Canada.

The answer is “yes” insofar as it involves the relationship between the state and the citizen.  The protection is contained in the case law that has evolved out of Section 8 of the Canadian Charter of Rights and Freedoms.  See appended.

“In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”

I am on trial at the moment.  The right to privacy of personal information is the legal issue in the trial.  Lawyer Steve Seiferling has specialized in privacy law.  He is representing me.  Judge Whelan’s decision is due January 13.

I don’t think there is any doubt but that we will win the case.  For me it is about re-claiming the Charter Right to Privacy of personal information, an important right that Canadians should not give up without a fight.

You asked your guests what is the greatest threat to privacy.  Their responses were illuminating.  I would add that ignorance of history and amnesia are also a serious threat.

Thanks again,

Sandra Finley

  2 Responses to “2010-12-23 Charter of Rights and Freedoms, Section 8 Privacy – Case Law: The Queen Vs Plant protects a “biographical core of personal information” from the state. Oakes Test to override.”

  1. Excellent article. I too am fighting the jack-booted thugs constant pestering over the census. I will not participate. I’ve torn up all the letters they’ve sent and am ready to evade at the door and on the phone. This article and your fight will be invaluable to me if I have to fight the government drones.

    Thanks

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