IN THE
PROVINCIAL COURT
FOR SASKATCHEWAN
JUDICIAL CENTRE OF SASKATOON
HER MAJESTY THE QUEEN
RESPONDENT
– and –
SANDRA FINLEY
APPLICANT
WRITTEN REPRESENTATIONS ON BEHALF OF THE
APPLICANT SANDRA FINLEY
(Charter s. 8)
I. OVERVIEW
1. This case is about whether the criminalization of a refusal to answer census questions is constitutional. Sandra Finley wants to protect her personal information from being collected by the government, because she considers certain information personal and private, including information sought by the Government of Canada merely for statistical purposes. When she received a census request in 2006, she refused to participate, because the information sought by the census was within a biographical core that she wanted to keep private. Sandra now faces criminal charges for her refusal to participate in the 2006 Census (the “Census”). Sandra has the right to protect her personal information from the government without fear of prosecution – a right that is embodied in the Charter of Rights and Freedoms. Sandra believes that the criminalization of her refusal is contrary to her right to privacy, as set out in the Charter.
II. BACKGROUND
2. In or about May 2006, Sandra Finley conscientiously objected to filling in the census response (long form) for a number of reasons, including an objection on the basis that the information sought by the census form was personal information which would reveal a biographical core of personal information about the Applicant which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.
3. The Census form requested information such as information on age, sex, marital status, family, household and dwelling characteristics, employment and place of work, ethnic origin, income and earnings, citizenship and immigration status, and education. The information sought from the Applicant is personal information that she considers private.
4. Ms Finley was charged with refusal to complete a Census response pursuant to s. 31 of the Statistics Act.
5. Ms Finley considered the information requested by the long form census to be a breach of her privacy rights, contrary to s. 8 of the Charter.
6. The demand made by Statistics Canada was an unreasonable search constituting a violation of Ms Finley’s rights as guaranteed by s. 8 of the Charter. The only appropriate remedy would be a declaration that s. 31 of the Statistics Act is of no force and effect, or, alternatively, a declaration that s. 31 of the Statistics Act shall be read down so that it does not apply to objections to completing a Canadian census.
III. ISSUES
1. Ms Finley submits that:
a) The demand to fill in the Canadian Census was a breach of her rights to be free from unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms;
b) The criminalization of refusal to participate in the census is a breach of her right to privacy as set out in s. 8 of the Charter; and
c) Section 31 of the Statistics Act should be declared to be of no force and effect, or alternatively, should be read down so as to decriminalize conscientious objection to filling in a census form.
IV. LAW AND ARGUMENT
2. It is trite law that the Charter applies to federal legislation, such as the Statistics Act, and that the Charter applies to criminal prosecutions, such as the present situation.
3. Ms Finley believes that the demand made by the government to fill in the Canadian Census violated her right to privacy under section 8 of the Charter, and submits that s. 31 of the Statistics Act should be struck or read down pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act.
A. The demand to fill in the Canadian Census was a breach of the Applicant’s rights to be free from unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms
4. Section 8 of the Charter includes the right to be free from arbitrary detention, and reads as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
Canadian Charter of Rights and Freedoms, Schedule “B” to the Constitution Act, 1982, s. 8
5. Section 31 of the Statistics Act reads as follows:
False or unlawful information
31. Every person who, without lawful excuse,
(a) refuses or neglects to answer, or wilfully answers falsely, any question requisite for obtaining any information sought in respect of the objects of this Act or pertinent thereto that has been asked of him by any person employed or deemed to be employed under this Act, or
(b) refuses or neglects to furnish any information or to fill in to the best of his knowledge and belief any schedule or form that the person has been required to fill in, and to return the same when and as required of him pursuant to this Act, or knowingly gives false or misleading information or practises any other deception thereunder
is, for every refusal or neglect, or false answer or deception, guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both.
1970-71-72, c. 15, s. 29.
6. An assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its “reasonable” or “unreasonable” impact on the subject of the search or the seizure. The guarantee only protects a reasonable expectation of privacy. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. If an accused person establishes a reasonable expectation of privacy, the inquiry must then proceed to determine whether the search was conducted in a reasonable manner.
R. v. Edwards, [1996] 1 S.C.R. 126 (SCC)
Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (SCC).
7. The Supreme Court of Canada has concluded that the values of dignity, integrity and autonomy are paramount in Canadian society, and, therefore, 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”. The Supreme Court of Canada has stated that this would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
R. v. Plant, [1993] 3 S.C.R. 281 (SCC)
8. The test for a reasonable expectation of privacy, according to the Supreme Court of Canada, is whether the information sought would which tends to reveal intimate details of the lifestyle and personal choices of Ms Finley. Ms Finley submits that much, if not all, of the information sought by the Census, would reveal intimate details, lifestyle and personal choices of the Applicant.
9. Ms Finley’s objection is to the Census’ request for information about age, sex, marital status, family, household and dwelling characteristics, employment and place of work, ethnic origin, income and earnings, citizenship and immigration status, and education, which all fall within the biographical core of information that may tend to reveal intimate details and lifestyle and personal choices of the Applicant. Each of the categories of information sought with respect to the Census can be considered to be within Ms Finley person core of biographical information.
10. Ms Finley clearly has a reasonable expectation of privacy in the information sought by the Census. Accordingly, she submits that the onus shifts to the crown to show that the law and the collection of her personal information are reasonable.
B. The criminalization of refusal to participate in the census is a breach of the Applicant’s right to privacy as set out in s. 8 of the Charter.
11. As stated above, s. 8 of the Charter guaranteed the right to be free from unreasonable search and seizure. Once Ms Finley has established a reasonable expectation of privacy in her personal information, the onus shifts to the Crown to show that the law affecting that reasonable expectation of privacy is reasonable.
12. Ms Finley would not have a problem with the Census if she had a reasonable opportunity to refuse to participate. By stark contrast, the Statistics Act not only mandates participation – it criminalizes the refusal to participate. This fact cannot be emphasized enough – refusal to disclose information to the state in which a person has a reasonable expectation of privacy is a criminal offence.
13. Ms Finley understands that the Census is intended to collect data about Canadians, including statistical information relating to the commercial, industrial, financial, social, economic and general activities and condition of the people. The Applicant has no objection to the Government of Canada endeavouring to collect certain information from its population under the Statistics Act.
Statistics Act, supra, at s. 3.
14. However, the privacy rights embodied in s. 8 of the Charter must be taken into consideration once the refusal to answer Census questions is criminalized, which is the effect of s. 31 of the Statistics Act.
15. The onus lies on the Crown to determine whether the search was reasonable. The Crown bears the burden of demonstrating, on the balance of probabilities, that a search was authorized by a reasonable law and carried out in a reasonable manner.
R. v. Buhay, [2003] 1 S.C.R. 631, at para. 32.
16. Ms Finley’s argument lies in the fact that the search – or the request to fill out the Census – was not authorized by a reasonable law.
17. Given the privacy interests of Canadians pursuant to the Charter, which include a broad range of information, Ms Finley submits that the Crown cannot meet the onus of showing that the law criminalizing refusal to respond to the Census is reasonable.
18. We are dealing with a statutory regime, the Statistics Act, which criminalizes certain acts and omissions. Unlike some of the other case law dealing with privacy in the criminal context, we are not dealing with a search as part of an investigation. However, we are not dealing with an administrative search either. The Supreme Court of Canada has differentiated between the types of searches as follows:
Since individuals have different expectations of privacy in different contexts and with regard to different kinds of information and documents, it follows that the standard of review of what is “reasonable” in a given context must be flexible if it is to be realistic and meaningful. A distinction must be drawn between seizures in the criminal or quasi-criminal context to which the full rigors of the criteria in Hunter v. Southam Inc. will apply, and seizures in the administrative or regulatory context to which a lesser standard may apply, depending upon the legislative scheme under review. When Dickson C.J. said in Simmons that departures from the Hunter criteria would be rare, he was not applying his mind to searches or seizures in the context of regulatory legislation. He was addressing as in the cases of Hunter and Simmons themselves searches or seizures in a criminal or quasi-criminal context:
R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 (SCC)
British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 (SCC).
19. Even purely administrative provisions in a statutory regime, such as a provision of the Income Tax Act, will not necessarily avoid scrutiny under s. 8 of the Charter.
Baron v. Canada, [1993] 1 S.C.R. 416 (SCC).
20. In the present case, we are dealing with the privacy of information that is clearly personal information, and the state is only seeking disclosure of that information for statistical purposes. As mentioned above, the simple fact that the state is seeking disclosure is not the issue – the issue is the criminalization of the refusal to provide information. It is the criminalization of the refusal that renders s. 31 of the Statistics Act contrary to s. 8 of the Charter.
21. The central question that must be answered, at this stage in the analysis, is whether the criminalization of the refusal to provide Census responses to the state for statistical purposes is reasonable. Ms Finley submits that the criminalization is not reasonable – we are not dealing with a taxation scheme here (which has voluntary reporting and primarily administrative penalties). We are not dealing with the regulation of corporations or securities where an individual has to disclose information to obtain registration, or participate in a financial market (which are voluntary, and all have primarily administrative penalties). We are dealing with the collection of a vast amount of information by the state simply for statistical purposes – Ms Finley submits that there is no way that the criminalization of refusal to provide personal information for statistical purposes is reasonable.
22. Ms. Finley therefore submits that the Crown cannot meet its onus of showing that the criminalization of refusal to reply to the Census is a reasonable law.
C. Section 31 of the Statistics Act should be declared to be of no force and effect, or alternatively, should be read down so as to decriminalize conscientious objection to filling in a census form.
23. Section 24(1) of the Charter reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Canadian Charter of Rights and Freedoms, Schedule “B” to the Constitution Act, 1982, s 24(1)
24. Section 52(1) of the Constitution Act reads as follows:
52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Constitution Act, s. 52(1)
25. Section 31 of the Statistics Act is reproduced above.
26. Pursuant to s. 24(1) of the Charter, this Honourable Court has the power to declare that s. 31 of the Statistics Act is of no force and effect, or to read that section down to the extent that s. 31 of the Statistics Act is inconsistent with the Applicant’s privacy rights as found in s. 8 of the Charter.
27. The Supreme Court of Canada has commented on the possibility of reading down a provision contained in a piece of legislation as follows:
Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using the doctrine of severance or “reading down”. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. In that way, as much of the legislative purpose as possible may be realized.
Schachter v. Canada, [1992] 2 S.C.R. 679 (SCC).
28. Ms. Finley submits that s. 31 of the Statistics Act is inconsistent with s. 8 of the Charter, and should be declared to be of no force and effect.
29. Ms Finley, and other conscientious objectors to participation in the Census, should have a right to object to providing personal information to the state without the possibility of facing a criminal charge. Simply put, the criminalization of a refusal to provide census information that includes a significant amount of lifestyle and personal information, is inconsistent with the right to be free from unreasonable search and seizure set out in s. 8 of the Charter. This criminalization renders s. 31 of the Statistics Act unreasonable in its entirety, and Ms Finley submits that this Honourable Court should declare the section to be of no force and effect.
30. Ms Finley submits that, in the alternative, s. 31 of the Statistics Act should be read down so as to eliminate its application to people who refuse to provide answers in response to a Canadian Census. Given the broad drafting of s. 52(1) of the Constitution Act, and the comments of the Supreme Court of Canada, the power to read down a statutory provision lies within the power of this Honourable Court.
31. Ms. Finley submits that her reasonable expectation of privacy, combined with the Crown’s inability to show the criminal provision of the Statistics Act is reasonable, leads to the conclusion that s. 31 of the Statistics Act should be declared to be of no force and effect pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act.
32. Alternatively, Ms Finley submits that s. 31 of the Statistics Act should be read down to exclude people who refuse or neglect to participate in the Canadian Census.
V. RELIEF SOUGHT
33. The Applicant respectfully requests the following relief:
a) for an Order that the charge against the Applicant, Sandra Finley, pursuant to Section 31 of the Statistics Act be stayed pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms
b) An Order that s. 31 of the Statistics Act be declared of no force and effect pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act.
c) Alternatively, and Order that s. 32 should be read down to exclude people who refuse or neglect to participate in the Canadian Census, so as not to impose criminal sanctions based on a refusal to participate in the collection of statistics.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this ______ day of ______________, 20__.
Sandra Finley
Per:______________________________________
Sandra Finley
TO:
Provincial Court
for Saskatchewan
Judicial Centre of Saskatoon
Attention: Janice Kaminski or Cindy Ritchie
AND TO: The Attorney General for Saskatchewan
c/o Barrie Miller – Saskatoon Prosecutions Unit
AND TO: The Attorney General for Canada
c/o Byron Wright
Federal Prosecution Service, Saskatoon