Notice of Appeal of Judge Whelan’s “guilty” decision was filed on January 28th, 2011. Scroll down to the text of the Appeal document.
The reasons for the decision to appeal the guilty decision are at 2011-01-21
In a nutshell, the question is: do Canadians have a Charter Right to Privacy of personal information in the face of the Government and Lockheed Martin Corporation, or do we not?
It is not a good situation if citizens do not know what the actual law is. As I (with legal counsel) have understood, as stated in this excerpt from the legal argument documented at 2010-12-23 :
“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.”
COPY OF THE COURT RULING (“GUILTY”), JANUARY 13: http://www.lawsociety.sk.ca/WhatsNew/NewJudgmentsPC.htm
JUDGE WHELAN’S COMMENTS DURING SENTENCING (absolute discharge), January 20: a transcript has been ordered.
EMAIL THREAD WITH LAWYER RE CONTENT OF THE NOTICE OF APPEAL, AND A COPY OF THE NOTICE OF APPEAL, AS FILED:
Note that the Saskatchewan Court of Appeal is called “Queen’s Bench”.
From: Sandra Finley Sent: January 27, 2011 1:25 PM
To: Steve Seiferling �
Subject: RE: R v Finley Notice of Appeal
Thanks Steve (for draft copy of Notice of Appeal).
(1) Should there be something specifically related to the Judge’s conclusion that we didn’t prove that the information required by the census long form is “personal”, or is that already included in one of the grounds for appeal you cite? ((vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.)
(2) Should there be something to the effect that the Judge erred by including argument related to Charter 1 override of the individual Charter Right to privacy of personal information when the Prosecution chose not to include that as an argument in the case?
As I understood what happened: you pointed out to the Judge that only the Prosecutor could present the Section 1 argument to the Court. Because the Prosecutor did not do that, you could not place the counter-argument to the Court.
The Judge then turned around and based her decision on Section 1: the idea that the benefit to all Canadians is greater than the individual charter right to privacy. Is that not a failure in procedure? You weren’t able to present the counter-argument (the Oakes test)?
Sandra
If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.
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REPLY FROM LAWYER, STEVE:
The broad grounds set out in the Notice cover everything you raise (and more). I wanted to keep the notice fairly simple, but keep them broad enough so that I can expand on them in the argument.
Give me a call if you have questions.
Steve
Steven Seiferling
McKercher LLP
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THE NOTICE OF APPEAL AS FILED IN COURT OF QUEEN’S BENCH, JANUARY 28TH:
Q.B. NO. _______ of 2011
IN THE COURT OF QUEEN’S BENCH
FOR SASKATCHEWAN
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
SANDRA FINLEY
APPELLANT
(APPLICANT)
– and –
HER MAJESTY THE QUEEN,
RESPONDENT
(RESPONDENT)
NOTICE OF APPEAL
TAKE NOTICE:
- THAT SANDRA FINLEY, the above named Appellant, hereby appeals to the Court of Queen’s Bench from the Judgment of the Honourable Madam Justice Whelan (the “Trial Judge”) issued on the 13th day of January, 2011
- THAT the whole of the Judgment or the following parts are being appealed:
(a) The Appellant appeals the summary conviction imposed by the Trial Judge.
- THAT the source of the Appellant’s right of appeal and the court’s jurisdiction to entertain the appeal is:
(a) Section 813(a)(i) and 830 of the Criminal Code
- THAT the appeal is taken upon the following grounds:
(a) The Trial Judge erred in law by concluding that there was no breach of s. 8 of the Charter of Rights and Freedoms;
(b) The Trial Judge erred in law by misapprehending or failing to consider the criminal nature of a fine or jail sentence that may be imposed pursuant to s. 31 of the Statistics Act, R.S.C. 1985 c. S-19;
(c) The Trial Judge erred in law in failing to consider whether the Appellant had a “lawful excuse” for refusing to provide a response to the long form census, pursuant to s. 31 of the Statistics Act; and
(d) The Trial Judge erred in law by concluding that the collection of the personal information for statistical purposes attracts a diminished expectation of privacy.
- THAT the Appellant requests the following relief:
(a) A declaration that the Appellant’s rights under s. 8 of the Charter of Rights and Freedoms were breached by the compelled collection of personal information under threat of fine or imprisonment; and
(b) An Order that the summary conviction be reversed, and an acquittal be entered.
- THAT the Appellant’s address for service is:
McKercher LLP
Barristers & Solicitors
374 – 3rd Avenue South
Saskatoon, Saskatchewan S7K 1M5
Telephone: (306) 653-2000
Fax: (306) 653-2669
Lawyer in charge of file: Steven J.R. Seiferling
THAT the Appellant requests that this Appeal be heard at Saskatoon, Saskatchewan.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this __28th__ day of ____January_____, 2011.
McKERCHER LLP
Per: __________________________________
Solicitors for the Appellant, Sandra Finley
TO: The Registrar,
Court of Queen’s Bench
Court House
Saskatoon, SK