R. v. Stegenga Date:, 2014 BCPC 187

Citation: R. v. Stegenga Date: 20140717 2014 BCPC 0187 File No: 15225 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAREN STEGENGA RULING ON APPLICATION OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: J. Allen Appearing in person: K. Stegenga Place of Hearing: Powell River , B.C. Date of Hearing: July 17, 2014 Date of Judgment: July 17, 2014 [ 1 ] Karen Stegenga is charged under s. 31(

b) of the Statistics Act with refusing to fill in the Canadian 2011 Census of Population

form and return it. S. 31 provides the following: s. 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 theobjects 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 personhas been required to fill in, and to return the same when and as required of him pursuant to this Act, or knowingly gives false ormisleading 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 notexceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both. [2] Ms. Stegenga admits that she refused to complete the census form. She says she refused for the following reasons:

a) Lockheed Martin Canada Inc. was hired by the Canadian government to provide Statistics Canada with processing software for the2011 census;

b) she believes “Lockheed Martin” or a related U.S. company to be the world’s largest weapons manufacturer and to manufacture clustermunitions and land mines;

c) she believes “Lockheed Martin” or a related U.S. company to have a record of corruption and violation of laws concerning weapons;

c) she believes awarding government contracts to Lockheed Martin Canada Inc. is unethical, immoral, and contrary to the spirit ofconventions and laws that bind Canada concerning cluster munitions and land mines; and

d) she believes completing a census form would constitute “collaboration to enrich Lockheed Martin Corporation” which she believeswould be immoral and would contradict her strongly held beliefs in peace and integrity. [3] Ms. Stegenga asserts that s. 31’s compulsion to complete the census form violates her rights to freedom of conscience andfreedom of expression under ss. 2(

a) and (

b) of the Canadian Charter of Rights and Freedoms. She seeks a judicial stay of proceedings,or as Crown counsel, Ms. Allen, put it, a constitutional exemption from compliance with s. 31. [4] In deciding this application, I have considered the following case law: R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927; R. v. Babos, 2014 SCC16; R. v. Jones, (SCC), [1986] 2 S.C.R. 284; Syndicat Northcrest v. Amselem, 2004 SCC 47 , [2004] 2 S.C.R.551; Little v. R., 2009 NBCA 53; Petrini v. Canada, [1994] F.J.C. No. 1451 (QL); R. v.

Churnin (OCJ),(unreported), Queen Street WestRegistry, Toronto, January 22, 2014; and R. v. Tobias (OCJ), (unreported), Old City Hall Registry, Toronto, October 9, 2013. [5] Some of those cases reveal that other judges across Canada have considered applications for similar Charter relief fromprosecution under s. 31 and have reached consistent conclusions. In R. v. Churnin, Madame Justice Mocha sets out those conclusionsclearly, and I adopt her reasons. Because the arguments have been thoroughly analysed elsewhere, I will simply summarize thejurisprudence briefly as it applies to Ms. Stegenga.

Freedom of Conscience [6] Ms. Stegenga’s decade long commitment to peace and democracy is a matter of conscience protected by s. 2(

a) of the Charter.However, to establish infringement of this right, Ms. Stegenga would have to demonstrate that s. 31 interferes in a way that is more thantrivial with her ability to act in accordance with her belief. She is not able to do this. Neither the purpose nor the effect of s. 31 interfereswith her beliefs. She would not enrich Lockheed Martin if she complied with the Statistics Act. Nor would she be collaborating with thecompany by filling out a census form.

There is no rational connection at all between s. 31’s requirement and her commitment to peaceand integrity, and the connection she postulates is far too remote to infringe her freedom of conscience and violate s. 2(a). [7] There are limitations on the right to act on one’s beliefs, opinions and conscience described by the Supreme Court of Canada inR. v. Big M. One’s actions must not injure others or violate their rights; one’s actions must also not violate constitutional laws. Ms.Stegenga does not argue that s. 31 is an unconstitutional law. As Crown counsel in R. v.

Tobias submitted: “S. 2 of the Charter does not provide a broad license to disregard or disobey valid statutes on the basis of moral disapproval … the Ruleof Law demands that citizens obey a lawful obligation found in valid legislation. Otherwise, everyone who disagreed with governmentpolicies and the expenditure of public monies in furtherance of these policies would be entitled to abandon their obligations as membersof the community while continuing to receive the benefits of such membership.” (R. v. Tobias, paragraph 11) Freedom of Expression

[ 8 ] In R. v. Irwin Toy, the Supreme Court of Canada stated that freedom of expression was entrenched in the Charter in order to ensure that everyone can express their thoughts, opinions and beliefs, however unpopular. Requiring Ms. Stegenga to fill out a census form does not infringe her right to freedom of expression under s. 2(

b) of the Charter . Neither the purpose nor the effect of s. 31 deprives her of the ability to speak her mind about Lockheed Martin and the government’s action in contracting with that company. Filling out the form cannot rationally be viewed as an expression of support for Lockheed Martin or the federal government. Nor can the requirement to fill out the census form be considered “forced expression” as that term is used in law. Again, there is no nexus or connection between Ms. Stegenga’s freedom of expression of her beliefs and the legal requirement to complete the census. Abuse of Process [ 9 ] Unlike the issues involving ss. 2(

a) and (

b) of the Charter , this issue was not considered in R. v. Churnin or R. v. Tobias. [ 10 ] In R. v. Tobias Yves Beland, Director of Census Operations Division of Statistics Canada testified that Lockheed Martin’s role in the 2006 census was reduced from its initial scope because some Canadians, including Members of Parliament, were concerned regarding the Patriots Act . The corporation’s role was further reduced to providing technical solutions to fine-tune the system for the 2011 census, and Lockheed Martin will be “out of the picture totally” for the next census.

The Crown in this case has admitted these facts. [ 11 ] Ms. Stegenga argues that it is wrong for the federal government to prosecute her when it appears to have accepted the pressure exerted by Canadians to stop dealing with Lockheed Martin. She points to Canadians’ letters and emails to government, discussions on the internet, and refusals to complete the census as examples of this pressure. [ 12 ] Ms. Stegenga acknowledges that she is making moral and ethical arguments in court, a forum bound to apply the law.

In order to give this argument a legal framework, I have considered it to be an application for a judicial stay on the ground of abuse of process. [ 13 ] I believe Ms. Stegenga to be saying that in these circumstances, prosecuting her amounts to state conduct impinging on the integrity of the justice system. This issue was recently considered in R. v. Babos , where the Court confirmed that a stay of proceedings is the most drastic remedy a criminal court can order and only warranted for abuse of process in the clearest of cases.

It stated the test to be applied in an application like this one as “whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”. [ 14 ] In this case, the government’s conduct is not offensive to fair play and decency. Although the reasons for the absence of Lockheed Martin from the next census have not been established, if its absence results from public pressure, then democracy has worked well. Citizens’ opinions have been heard. Nevertheless, Ms.

Stegenga was required to comply with the law in 2011, and a subsequent change in public policy would not absolve her of the duty to comply with the law. Nor would it make the prosecutor’s exercise of discretion in proceeding with this prosecution unfair. Conclusion [ 15 ] Ms. Stegenga has failed to establish that s. 31 infringes her rights to freedom of conscience or freedom of expression. She has also failed to establish that a stay for abuse of process is warranted. Accordingly, I dismiss her application for a judicial stay and for constitutional exemption from compliance with s. 31. The Honourable Judge A.E.

Rounthwaite Provincial Court of British Columbia