Her Majesty the Queen - v. -, 2011 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC # 016 Date: January 13, 2011 Information: 30391500 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sandra Finley Appearing: B. Miller For the Crown S. Seiferling For the Defendant/Applicant JUDGMENT JUDGE S. P. WHELAN Introduction [ 1 ] Ms. Finley, the Defendant/Applicant, was charged pursuant to s. 31(

b) of the Statistics Act for failing to complete and submit the 2006 Long Form Population Census.

Section 31 imposes, upon conviction, maximum penalties of a fine, not exceeding five hundred dollars, or imprisonment for a term not exceeding three months or both. She did not dispute the factual underpinnings of the Crown’s case. Rather she sought relief having regard to sections 8 and 24(1) of the Charter , on the basis that s. 31, insofar as it compels the provision of personal information, is an interference with a reasonable expectation of privacy and is therefore unconstitutional. The

burden of proof, on a Charter application, on a balance of probabilities, lay with the Defendant/Applicant. [ 2 ] The Crown argued: that s. 8 of the Charter is not engaged having regard to all of the circumstances.

Should the Court find that it is engaged and that there is a breach for which a remedy is appropriate, the Crown maintained that the appropriate remedy would be to dismiss the charge pursuant to s. 52 of the Charter as no one may be found guilty of an unconstitutional offence. [ 3 ] For the reasons elaborated upon below, I found that the Defendant/Applicant did not meet the burden of proof on the Charter application. While I found that s. 31 of the Statistics Act was engaged by s. 8 of the Charter , I found that there was no breach and in any event that the search was carried out in a reasonable fashion.

Accordingly, the application is dismissed and I find Ms. Finley guilty of the offence. Issues [ 4 ] Does s. 31 of the Statistics Act violate s. 8 of the Charter and in that regard:

a) Is there a reasonable expectation of privacy, on the totality of the circumstances?

b) If yes, was the search conducted reasonably? Pertinent Statutory Provisions [ 5 ] Sections 8 and 24 of the Canadian Charter of Rights and Freedoms provide: 8. Everyone has the right to be secure against unreasonable search or seizure. 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. [ 6 ]

Section 52 of the Constitution Act provides: 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. [ 7 ] Sections, 3, 19, 21, 22 and 31 of the Statistics Act are pertinent: Statistics bureau 3. There shall continue to be a statistics bureau under the Minister, to be known as (

a) to collect, compile, analyse, abstract and publish statistical information relating to the commercial, industrial, financial, social, economic and general activities and condition of the people; (

b) to collaborate with departments of government in the collection, compilation and publication of statistical information, including statistics derived from the activities of those departments; (

c) to take the census of population of Canada and the census of agriculture of Canada as provided in this Act; (

d) to promote the avoidance of duplication in the information collected by departments of government; and (

e) generally, to promote and develop integrated social and economic statistics pertaining to the whole of Canada and to each of the provinces thereof and to coordinate plans for

the integration of those statistics. Population census 19.

(1) A census of population of Canada shall be taken by Statistics Canada in the month of June in the year 1971, and every fifth year thereafter in a month to be fixed by the Governor in Council. Counts of electoral divisions

(2) The census of population shall be taken in such a manner as to ensure that counts of the population are provided for each federal electoral district of Canada, as constituted at the time of each census of population. Decennial census

(3) A reference in any Act of Parliament, in any order, rule or regulation or in any contract or other document made thereunder to a decennial census of population shall, unless the context otherwise requires, be construed to refer to the census of population taken by Statistics Canada in the year 1971 or in any tenth year thereafter. 21.

(1) The Governor in Council shall, by order, prescribe the questions to be asked in any census taken by Statistics Canada under

section 19 or 20.

(2) Every order made under subsection (1) shall be published in the Canada Gazette not later than thirty days after it is made. 22. Without limiting the duties of Statistics Canada under

section 3 or affecting any of its powers or duties in respect of any specific statistics that may otherwise be authorized or required under this Act, the Chief Statistician shall, under the direction of the Minister, collect, compile, analyse, abstract and publish statistics in relation to all or any of the following matters in Canada: (

a) population; (

b) agriculture; (

c) health and welfare; (

d) law enforcement, the administration of justice and corrections; (

e) government and business finance; (

f) immigration and emigration; (

g) education; (

h) labour and employment; (

i) commerce with other countries; (

j) prices and the cost of living; (

k) forestry, fishing and trapping; (

l) mines, quarries and wells; (

m) manufacturing; (

n) construction; (

o) transportation, storage and communication; (

p) electric power, gas and water utilities; (

q) wholesale and retail trade; (

r) finance, insurance and real estate;

(

s) public administration; (

t) community, business and personal services; and (

u) any other matters prescribed by the Minister or by the Governor in Council. 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. [ 8 ] The Crown filed the Orders in Council, Exhibits P- 4, 5, and 6, required pursuant to s. 21 of the Statistics Act, authorizing the forms to be used and the questions to be asked pursuant to sections 20 of the Act pertaining to the 2006 Census of Population Form 2B Exhibit P-3. Throughout this decision I’ve referred to it as the 2006 Long Form Census of Population. Background and Testimony [ 9 ] The credibility of the witnesses was not in issue.

I had no doubt as to the veracity and sincerity of the witnesses. There was some concern with reliability and relevance with respect to the testimony of Ms. Finley, the Defendant/Applicant. She conducted most of her case without the benefit of legal counsel . As well, in providing her reasons for refusing to complete the census, she offered information which, aside from the question of accuracy, and important perhaps in another context, were not always relevant to the issues before the Court.

It was necessary to separate, what her beliefs may be, from what she was alleging about matters which were beyond the scope of this hearing. [ 10 ] The Defendant/Applicant refused to complete and submit the 2006 Long Form Population Census. She gave two reasons. First, she was concerned about the role of Lockheed Martin in the census process and objected to Statistics Canada contracts being granted to Lockheed Martin Canada because of what she believed to be the parent company’s activities in relation to armaments. In this regard refusing to complete the census was regarded by Ms.

Finley as an extension of her freedom of expression and a form of conscientious objection. Secondly, she objected to being required by law to relinquish control over what she regarded as a biographical core of personal information. She believed that this information should only be requested on a voluntary basis and she did not choose to release this information to Statistics Canada.

Secondarily to that, there was an unfounded concern that private information about Canadians, collected by Statistics Canada in the 2006 census, might be compelled by the United States pursuant to that country’s Patriot Act . [ 11 ] The 2006 Long Form Population Census, Exhibit P-3, requested somewhat detailed personal information.

It includes questions concerning marital or common-law relationships, the relationship between persons living at that address, physical and mental health conditions and their impact on activities, country of birth, citizenship, immigration status, language, ethnic or cultural origins, aboriginal and treaty status, geographical mobility, education, time spent in unpaid work or care giving, time spent in working for pay, types of employment, transportation to work, income and its sources, and information pertaining to one’s dwelling, including the number of rooms and the need for repairs.

The census was 40 pages long but the number of entries depended upon the number of persons who usually lived at the address and were aged 15 and over. [ 12 ] The Court heard generally about the steps taken by Statistics Canada to obtain the completed 2006 Long Form Population

Census from those who do not initially respond and it heard about the specific steps taken to obtain Ms. Finley’s response. This included a formal process of documenting refusal. Exhibit P1, the Total Refusal Form, was discussed by two employees of Statistics Canada. Part F of that Exhibit indicates that there were two direct contacts with Ms. Finley in July 2006, and each time Ms. Finley unequivocally refused to complete the census. On the first occasion the contact was over the phone and on the second occasion the employee attended at the residence of Ms. Finley.

On each occasion, the employee made notes of the reasons provided for the refusal. Survey Process in Canada [ 13 ] The Crown called Mr. Arora, who was, at the time of his testimony, an Assistant Deputy Minister and the Assistant Chief Statistician responsible for the social, labour and health fields. In 2006, he was the Director General, responsible for the census program and the population census in Canada. He was the Census Manager and as such was responsible for all stages of the conduct of the population census, including the content of the questionnaire approved by Cabinet.

For 3 of the 21 years of his employment with Statistics Canada, from 1997 to 2000, he was the Assistant Director for the Dissemination Division. That position involved initiatives with respect to how users might make better use of the broad range of products and services that Statistics Canada produces. [ 14 ] Mr. Arora described the process by which all Canadian households were surveyed during the 2006 Population Census. The dwelling was the primary focus so enumerators confirmed the dwelling addresses and a questionnaire was mailed or delivered to each dwelling.

A short form census was administered to every household but one in five households (20%) were randomly selected to receive the long form census, which included the questions contained in the short form census. [ 15 ] At the time of the 2006 Population Census, there was a public communication program aimed at conveying information about the value of taking

part in the census and the legal obligation to do so. Call centres provided help in 60 different languages to persons who sought help in completing the questionnaire. For the first time the census could be completed “on-line”. [ 16 ] Mr. Arora discussed the steps taken to obtain compliance for the 2006 Population Census. Following the reporting period, beginning in June of 2006, they ascertained those dwellings for which a response was outstanding and a follow-up list was produced for door-to-door or phone contact by enumerators. Assistance in completing the questionnaire was offered.

This generally resulted in very good compliance. If the enumerator was unsuccessful, the supervisor tried to assist in obtaining a response. If that step was unsuccessful it was referred to a managerial level where more efforts are made. This process continued generally into the fall of 2006. In some cases the refusal was sent to the headquarters in Ottawa and the Chief Statistician sent a letter, in which the individual was reminded of their legal obligation. If, despite these efforts, a refusal persisted, the case was referred to the Department of Justice and a letter was then sent by a lawyer.

If that failed the lawyer decided whether to pass it on to the Canadian Prosecution Service where the case could ultimately result in a prosecution, such as the case before the Court. Mr. Arora testified that the level of compliance with the 2006 Population Census was comparable to previous censuses, with around 3% or 1 million in under-coverage. With respect to the 2006 Population Census, 64 cases were referred to the Prosecution Service and that number was consistent with previous experience. Mandate of Statistics Canada [ 17 ] The Crown lead evidence through Mr.

Arora on a number of subjects, which will be integrated under subject headings below, including the mandate of Statistics Canada.

Section 3 of the Statistics Act found in paragraph 7, above, establishes the duties of Statistics Canada. Mr. Arora discussed the history of the statutory mandate to conduct a national census. The first Statistics Act came into being in 1918. The Act was revised substantially in 1971 and from that point on Statistics Canada has been obligated to conduct a census of population and agriculture every five years.

Section 19 of the Act, found at paragraph 7, above, provides for the population censuses. [ 18 ]

Section 22 of the Statistics Act, set out in paragraph 7, above, directs that statistics shall be collected, compiled, analysed, abstracted and published in relation to a great number of broad subject areas, and includes provision for enlarging upon that list by the Minister or by Order in Council. Objectives and Use of Census Information [ 19 ] Mr. Arora discussed the objectives and uses of the census information collected under the Statistics Act . (Page 85 of the

transcript): The first is that any country needs a statistic base or an infrastructure on which to operate. So from basic population counts, for example, to how that population is changing, so in other words what are those demographic characteristics. Is it aging, what is the gender balance and how perhaps that population is shifting in one area to another part of the country at very low levels, is really the first and foremost objective of the census is to get a good portrait, a good picture of how a country is evolving and changing.

Now, in Canada, we have a number of very specific objectives that are met by the census results. The first and foremost is our democratic system in a sense, so how the number of seats in the House of Commons are determined by population distribution. So, in fact, the Chief Statistician certifies the results and actually hands them over to the Chief Electoral Officer who then has a formula and a process by which the number of seats and representation by population are determined based on census counts. . . . . . . The second is how funds and taxation, in fact, are spread across this country.

So we have a series of transfer and equalization payments in this country, so rooted back into the constitution and the federation that we have is this distribution of wealth or provision of equal services all across the country and that is based on population counts. So that’s the second. And just to give you an idea, in 2008 and 2009 that amounted to some 67 billion dollars in terms of transfer payments. So for the Province of Saskatchewan, for example, just over 1.3 billion dollars was transferred, you know, in that -- and that’s just in a one-year period for the health and social transfers.

In the case of Saskatchewan in 2007, 2008, that included also an equalization component of it. . . . And of course, the provinces then use the same results to then look at how it is that those funds are transferred between the provinces and the various municipalities and the various jurisdictions that they have within it. So that’s the second major use. The third, if you look at the federal government, and if you like I can break it up into the federal, the provincial, the territorial, then into the -- the other sectors that use it.

But if you look at the federal first, there are a number of programs so ranging from, for example, immigration, health -- and the provision of funds for health care, its delivery to the provinces, whether it’s the education system, whether it’s citizenship and how it’s governed, refugees, there’s -- there really isn’t a program out there in terms of how the federal government goes about administering. So, for example, aboriginals and people both on reserve and off reserve and how it is that they’re impacted.

Income levels, for example, in looking at things like Old Age Security programs, pension programs, they all look at the census to monitor, guide and evaluate and change how it is that they’re administered. The employment insurance program, for example, is -- and the employment regions that are determined, and how it is that the unemployment -- the applicability of the Employment Insurance Program is again based on the census. So there -- as I said, there isn’t a program -- really a major program out that that interacts with citizens in some way or another that doesn’t rely on the census results. . .

He continued (Page 88 of the transcript): And what’s really critical is that many of these programs need to go down to a very fine level of geography, so they need to go down to a very small local geographical level and then make sure that it builds from that local level. And secondly, in many cases, these very same programs are geared towards sub population so, for example, single parents.

As I said earlier, our aboriginal population, the Inuit in the north, the -- both the on-reserve and off-reserve First Nations communities, the Métis, all have their sub population, recent immigrants, for example, people in lower socioeconomic conditions -- and these are very small populations, as well as living generally in clusters or in small localities for which that kind of information, that kind of detailed information that programs and policies require can only be obtained from the census. Users of Census Information [ 20 ] Next, Mr.

Arora discussed the use of census information by the provinces and territories, municipalities, communities, non- government organizations, research communities, private companies, and citizens (Page 102 of the transcript): The provinces and territories under our system are responsible for the delivery of education and health and justice so there are a number

of direct responsibilities that provinces and territories have, and so they certainly use the census information to effectively administer their programs and to make the kinds of, of course, corrections that they require in those particular areas. The next tier are the municipalities and communities themselves and there, the kinds of uses that the census features are prominent in, are things such as emergency services.

So, for example, where to place, you know, a fire hall or ambulance services, so very critical services to a particular community for the safety and the kinds of services that a community -- population of a community depends upon. Look at things like the place of work data that is provided from the census to get a sense of what kind of transportation needs a community requires. So, for example, bus services and how -- where should stops be placed or how frequent bus schedules should be run, they’re all based on the demographic makeup of a particular given area.

So, for example, if there are more seniors in a particular area, the transit systems may require the stops to be less farther apart or the schedules to be accommodating if there are more children, for example, that go to school. Just simple things like the placement of schools and how big those schools should be, things like hospitals, so any kinds of community services that are required, again, are based on the kinds of data that the census provides.

So municipalities rely heavily on the use of census because to that level of geography, it is the only source of information that’s available to them to be able to make the kinds of decisions that impact a particular neighbourhood, a very small geographical area. Then the next set of stakeholders are the non-government types of organizations. There are many volunteer organizations. There are many church groups. There are many community-based organizations that rely, for example, on settlement services for new immigrants, for example, or shelters for women or men.

They require the kinds of data from the census to be able to see how a particular community is evolving and the kinds of needs that might be there, and then to help that community and the individuals within that community to make -- you know, to make the kind of contributions the community requires of them, and again, the census feature is quite prominent in those kinds of decisions -- decisions that can only be gleaned from the data that the census provides.

He continued (Page 105 of the transcript): So -- and then the last set of users, broad set of users, are the academic and research communities and the private companies themselves and citizens of this country and so they are -- they truly do rely on the kinds of information the census provides to do the kind of research that the -- that the academic sector does, the kind of -- the consultants do on behalf of other private companies and, in fact, the private sector uses those kinds of decision -- sorry, uses the data to make the kinds of decisions that they want in terms of getting better market shares, you know, looking at things like what do they stock in the shelves of a particular community, where it is that they might want to set up a plant, for example, with the kind of labour force that might be available in a particular area.

They even look at internationally in terms of how it is that they might want to attract an investor to a particular community, for example, based on labour-force conditions or the availability of a particular market for their products or services. Other Statistical Sources [ 21 ] Mr. Arora was asked about the availability of other sources of reliable information for small groups, such as minorities and he replied (Page 111 of the transcript): Nothing is as comprehensive or as integrated as the census information at that sub population or that very small level of geography.

There are administrative sources of data that touch on certain aspects of life, for example, for a particular community or sub group. But the ability to cross- reference, for example, how let’s say a particular group’s education or their participation in the labour force or their earning potential, and being able to track that over time in -- so for, i.e. a small group of people, sub population or at a small level, a geographic level, nothing like the census exists so it is, in fact, the unique source of information that provides that.

Tracking Developments Over Time [ 22 ] The census allows the tracking of developments in society over time, as Mr. Arora testified (Page 111 transcript): The census, given that a vast majority of the questions on the census remain essentially the same from one census to another, that’s just the need for that continuity of data, we do -- we are able to track over time what’s happening demographically. So, for example, our population is aging, so the pace at which it’s aging, how it’s aging differentially 10 across one region or another.

Mandatory Census in Other Countries [ 23 ] Mr. Arora was asked about the census approaches taken in other countries. He testified at page 109 of the transcript: More and more in developing countries, they’ve gone towards a self-enumeration kind of a method, so a questionnaire is left for individual households to be able to complete it in -- I’m not aware of a single case where filling out the questionnaire is not mandatory. It is, in fact, a mandatory exercise given the requirements and the uses of the data. Confidentiality and Anonymity [ 24 ] Mr.

Arora discussed the importance of protecting the confidentiality and privacy of the information obtained from persons pursuant to the Statistics Act (Page 119 of the transcript): . . .the Statistics Act , in fact, obligates us to protect the confidentiality and privacy of the individual responses to any of our surveys and specifically the census, and we take security and confidentiality of those responses very seriously. So anything that we do, that security, confidentiality protection, privacy protection, is taken right from the beginning in terms of the planning stages all the way to the end of the process.

So whether it’s in any services or products that we might procure, whether it’s any of the processes that our own employees, temporary or ongoing, would undertake security and confidentiality is always our primary concern. To ensure confidentiality, all employees undergo training and take an oath to keep the information received, confidential.

Section 6 of the Act sets out the oath of office required of every person employed or deemed employed pursuant to the Act , whether directly or by retainer under contract to perform special services under the Act . The oath includes a duty not to disclose information that comes to an employee’s knowledge by reason of their employment under the Act . [ 25 ]

Section 17 provides a prohibition against disclosure of information that would identify an individual return, except in accordance with the Act. It is useful to state s. 17(1) in full: 17.

(1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under

section 11 or 12 and except for the purposes of a prosecution under this Act but subject to this section, (

a) no person, other than a person employed or deemed to be employed under this Act, and sworn under

section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; and (

b) no person who has been sworn under

section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization.

Section 30 directs that everyone who has taken the oath set out in s. 6 and contravenes s. 17(1) is guilty of an offence and liable on

summary conviction to a fine, not exceeding one thousand dollars or to imprisonment for up to six months, or to both. Consistent with that, s. 18 declares that, except for the purpose of a prosecution under this Act , any return under this Act is privileged and shall not be used as evidence in any proceedings. [ 26 ] Mr.

Arora described some of the processes used to keep information confidential and anonymous (Page 121 of the transcript): . . .we have one -- two separate networks, so we actually have a confidential network that is internal to Statistics Canada and is not connected to any other external network at all. So the only way to take information from an external network to that internal network, which contains confidential data, is to physically actually transfer that information and it’s our employees that do that kind of transfer after they verify for any kind of -- any kind of vulnerabilities.

We have a whole team dedicated within Statistics Canada of experts and that’s what they do. They’re specialists in the various aspects of physical and computing security, and so they conduct regular audits. . . .the Office of the Privacy Commissioner and the privacy commissioners in the provinces, as well, are always kept up to date. We, in

fact, do a full submission to them. They come in, they actually do an audit and evaluation, rather, of our processes and procedure, interview our various people. We have internal audits that are conducted on this thing and we, in fact, had external evaluations as well in the case of the 2006 census just to -- just to go, not to the most reasonable measures that we could take, but even go beyond those reasonable measures to be able to address the kinds of risks and threats that are inherent to a census. [ 27 ] Mr.

Arora assured the Court that only Statistics Canada employees come into contact with confidential information received from Canadians who respond to the census (Page 123 of the transcript): . . .Only Statistics Canada employees, who are sworn in under the Statistics Act , ever come in touch with confidential information from respondents, so that is just not -- and again, it is within that confidential network that the electronic responses of every individual are stored and contained, and it’s only Statistics Canada employees, once again, who have been sworn in under that Act that have access to that information. . . .

Any of the analysis that involves individual responses that can be traced to a particular individual or a household, none of that analysis tabulation access is in the hands of anybody else other than Statistics Canada and its employees. [ 28 ] In response to specific questions by Ms. Finley about employee access to individual responses, Mr.

Arora elaborated (Page 206 of the transcript): “very, very few people and only those that absolutely have a need to would have controlled access to any of the databases that would contain individual responses.” . . . . . . there are a set of predefined tables that we need to create from the individual records that we’ve got that relates to individual needs of stakeholders. And so in most of those cases those tables are pre-specified in terms of, you know, we need, for example, you know, people’s age, their income, their education and the distribution of that.

So those tables are pre-specified, and given the time frames that are in place, the efficient processes that have to be in place, those are automated tables and our employees who are responsible for generating those tables would run these automated queries because we’re talking about hundreds and hundreds and millions of records that those tables then have to go access, aggregate that data, and generate an output product. So there would be no need to go -- it would be impractical, in a sense, to go and search individual records to be able to generate an aggregate table.

So those tables are pre-specified and it’s an automated process that goes and tabulates and there are other checks and balances in place to ensure that confidentiality still is protected even in the those -- in the generation of those aggregate tables. The aggregate tables are contained in a database, separate from the database that contains the individual records. Should an employee access a database with individual information on it, that kind of access is tracked (Page 211 of the transcript): The databases that we have have audit trails on them which -- and they’ve got privileges.

Only people with the appropriate access and privilege, with the necessary passwords and so on, so we would have the normal audit trails that we could look at and see who accessed that database on any given day or in any given week. [ 29 ] Mr. Arora estimated that less than 100 employees would have access to databases that contain individual responses of Canadians. They are generally management level employees or specialists. Those employees have given an oath of secrecy, have been subjected to security clearance, and have been trained in the implications of unauthorized access.

Their access is based upon a pre-determined need. There are a series of checks and balances. [ 30 ] Next Mr. Arora advised that independent assessments were conducted of Statistics Canada’s processes which were designed to ensure confidentiality for the 2006 Population Census, and in particular with respect to contracted systems (Page 136 of the transcript): . . .

And as a result, we set up a task force, a blue ribbon task force, that was headed up by the former Auditor General of Canada and prominent experts in the domain of informatics and security to evaluate what the processes and the systems and the kinds of checks and balances and the procedures that were in place for the 2006 census. And so they oversaw independently three independent external assessments and evaluations of our systems and processes as it pertained to the contracted systems that we talked about earlier that were under the scope of Lockheed Martin’s contract.

And that panel of experts, on many occasions, called in the independent evaluators who tried to break into the systems, evaluated it, and even when provided with information about, you know, how it is that the system was designed, even got into, okay, assume that you were at a specific spot in the system, for example, and then they tried to actually physically penetrate into the systems and were unable to do so, and the panel whose report we had put on our website and was made public came out with a definitive statement saying that, you know, Canadians should have no concerns whatsoever with the confidentiality and privacy of their information, specifically with respect to this contract that people had some concerns about.

. . . The blue ribbon panel not only looked at those three audits, but also the results of our own internal audits and evaluations and our testing. As well, independently to that, the officer of the Privacy Commissioner also physically visited the data processing centres and actually looked at the documents, the design documents, and also came up with their own assessment that there was nothing that Canadians had to worry about in terms of the privacy of the information that was collected on the 2006 census. [ 31 ] Ms. Finley questioned Mr. Arora pertaining to anonymity.

For the first time in 2006, Statistics Canada maintained the responses from an individual respondent in an electronic database. That information was then put into an aggregate database which is anonymous. In the past the individual questionnaires were kept in paper format. Questionnaires were then microfilmed and the individual responses from the questionnaires were keyed into a database. In 2006, for the first time, they were able to electronically read information from scanned questionnaires and that information was then stored directly onto a database.

Statistics Canada has always maintained the individual questionnaires from which an individual may be identified; beginning in 2006, they began to store it electronically. 2006 Population Census and Contract Services [ 32 ] The conditions for contracting outside government for services was canvassed (Page 112 of the transcript): We do look to other organizations to be able to provide us -- and always have looked to the private sector and other organizations to provide us with the kinds of services and products and tools.

And so in 2006, for example, the printing of the questionnaires, you know, we use commercial printers to be able to print the questionnaire, and that involves contracting. The delivery of the questionnaires to all the households that are in that address register and mailable areas, we use Canada Post, for example, to do that. So again, there’s a contract to be able to do that. To procure software, we have various contracts in place to be able to do a whole variety of things. We have contracts for the maintenance and upkeep of questionnaires, for example.

Specialized kinds of equipment such as scanners and such, you know, various servers and telecommunications kinds of equipment and so on, again, we have contracts to be able to acquire them. And so for the 2006 census, I believe we contracted out and received services and products to the tune of some hundred million dollars and all those were done through the Government of Canada’s procurement laws and policies and guidelines that are in place. . . Public Works and Government Services Canada is responsible for tendering larger contracts.

Statistics Canada, like other government departments, may tender contracts that are under a certain dollar figure, provided it is done in keeping with the Government’s conditions for procurement. Statistics Canada had in place an employee of Public Works and Government Services Canada who was responsible for setting up all the processes and the procedures by which Statistics Canada followed the Government of Canada’s rules and laws in procuring services. Lockheed Martin Canada [ 33 ] Mr.

Arora described the public process by which Public Works ultimately contracted with Lockheed Martin Canada to obtain questionnaire processing software and hardware (Page 125 of the transcript): . . . We laid out all the confidentiality and security conditions that had to be met before any contract was let out and the process of actual contracting out started off with an industry day where it was put out on the website, our website as well as the website of Public Works Government Services Canada, informing anybody out there that wanted to take

part in the contracting process that we would be hosting an industry day. Public Works was really doing all the logistical work. So we had multiple companies that came to that industry day to understand what it is that we were looking for in terms of services for the specific scope of what we wanted in the areas of questionnaire, processing, the software and the hardware that we required, the printing of those questionnaires to be able to use that software within -- because this is fairly specialized software which can read handwritten responses and convert it into digital form.

So how the questionnaire was printed and laid out was -- and the ink, for example, that was used on the questionnaire was directly related to the kind of software that would be able to read it in an efficient way. They were responsible for developing the software that would enable us to collect information on an -- in an online way and then integrate that with the paper questionnaire flow and the coding aspects of the -- of the questionnaire. So where there are handwritten, for example, occupations, to be able to convert that into a numeric code, to be able to then tabulate those later.

So it’s those kinds of -- it was that package of software and hardware and the printing services that we informed industry of, those were part of our requirements. After industry day, there was approximately a years worth of consultation with individual entities so we had multiple companies and a consortia of companies that we met with on a one- on-one basis to explain further what our requirements were, what the time lines were, what the security provisions were, you know, what the cost drivers and the limits were.

So we met with them in a very open and transparent way and then, ultimately, leading to a contract that was placed on MERKS by Public Works and Government Services

Canada to which we had multiple bids. So there were companies that bid on that set of services that we had consulted with them on. Then through a Public Works led process, with an independent fairness monitor, an individual -- an external entity that actually oversaw the evaluation process, a team was put together to actually evaluate the bids and score the kinds of bids in an anonymous way. They wouldn’t even know who they were evaluating in terms of the

section that they were evaluating. And then the team assembled the results at the end with the fairness monitor having placed a role, with the contracts authority playing a role, and then ultimately it was Public Works that awarded a contract to a group of companies that was led by Lockheed Martin Canada for the provision of the hardware, software and the printing services that Statistics Canada required for us to be able to undertake those aspects of the 2006 census.

Lockheed Martin Canada was contracted to print the 2006 census questionnaires and provide the software used to scan the questionnaires and convert handwritten responses into electronic and ultimately to coded numeric responses. Lockheed Martin Canada was one of hundreds of companies with which they contract for the delivery of service.

Approximately 64 of the 567 million dollars expended on the 2006 Census, including the 2004 Test Census was awarded to Lockheed Martin Canada for its products and services. [ 34 ] Statistics Canada subsequently became aware of the concern of some Canadians as to whether the Patriot Act might impact subsidiaries of American companies. Mr. Arora testified that this was in fact not a concern as outside companies were never in possession of confidential information.

He stated (Page 132 of the transcript): . . . even if a company was asked to hand over anything to, you know, the U.S. government, for example, they couldn’t because they were never in -- they were never in possession of confidential information. It was only in our own facilities within our own employees that those data were present, and those were isolated systems not connected to any external networks independently verified as such. Ms. Finley asked if, as a result of concerns expressed by Canadians, the role of Lockheed Martin Canada nonetheless changed. Mr.

Arora stated (Page 226 of the transcript): . . .the contract itself, as I explained yesterday, was in three phases, so there were -- as is normal, between every phase, there is -- there was a redefinition of the deliverables to that date, the requirements for the next phase, and then appropriate changes made to satisfy the needs of the next phase. There was -- as I said yesterday, there was a question raised about the extent to which the contractor was in any way furnishing the software, hardware and the printing services.

There was, in the original contract, a part of actually furnishing for Statistics Canada the actual capacity, the physical facility to -- for us to be able to process the questionnaires within our own -- within our own security and our own provisions. At the end of, believe, the second phase we decided that we would do that on our own and that there was no need for the contractor to provide that service, if that’s what you’re getting at. Mr.

Arora added in this regard (Page 228 of the transcript): . . .There was a -- I think some of the misconception that we were hearing that was out there was that Lockheed Martin was in some way involved in the physical handling or the processing of the individual questionnaires by virtue of the fact that one of the envisage deliverables from the contract was the furnishing of the actual facilities, for them to actually go and do the negotiation and provide to us the actual facility that we would then take over and then be able to manage along with the staff within that facility so that, you know, we could then take them on and they would become our employees to be able to do that.

That perception was out there and we decided that we didn’t need -- you know, that wasn’t a critical requirement and so the contract that went from phase 2 to phase 3, I believe, dropped that particular requirements. [ 35 ] Ms. Finley testified on her own behalf. She began by describing the work that she has been doing for the last 10 years (Page 292 of the transcript): For ten years, at least, I have run -- you could call it either an information service or an activist email network.

So I work with numbers of people from Saskatchewan, Alberta, from right across Canada, and there are international participants in that network as well. Some of them are American, and the -- so the information -- what I do is to very often take information that has been sent to me and then set it in with other information, so I basically integrate information so that people have a broader understanding of what is going on, rather than looking at things in fragmented pieces in isolation because you lose the pattern if you do that. So that tends to be my, I guess you would say, specialty.

And that work -- you know, the work that I do is -- it’s published on different websites. I do a lot of -- I do lobbying of the government, along with other people, but basically I believe that if the population is better informed with solid and good information that they will make better decisions because bad decisions are made when there is ignorance and the -- you know, the kinds of information that people need in the society is not very often being provided in the mainstream media. She continued to discuss her interest in census issues (Page 294 of the transcript):

So, for example, when it comes to the census things, I am -- I know about, I’m informed, and I inform other people that Lockheed Martin also has census contracts in the U.K. I receive information, because people in this network, working together, know that there is concern about what Lockheed Martin does in the world. Then what will happen is that I end up being the -- like sort of the focus or the hub where that information will come to.

So the -- so that’s the way that I become informed and that’s the way then that I help to inform other people, so I would put that information into packages and resend it. [ 36 ] She testified about her education and work experience, some of which was pertinent to her current endeavours (Page 294of the transcript): I graduated from the University of Saskatchewan, College of Commerce, with an Honors Degree, and subsequently I worked -- I was a manager in the telephone company in Nova Scotia then called (inaudible) Telephone and Telegraph. But -- and my -- and the work that I did there, it was varied.

Some of it was -- I worked in a supervisory capacity, but some of it -- you know, what I did was, again, I worked in information. I worked solving problems, establishing policy and reference manuals and working inter-departmentally on projects to get them up and running and that kind of thing. So that -- all of that work has contributed to what I do . . . She advised somewhat later in her testimony that her major in University was “statistics”. [ 37 ] Ms.

Finley elaborated upon her reasons for refusing to complete the census form, having regard to the role of Lockheed Martin Canada, apparently a subsidiary of Lockheed Martin, which she said has military contracts (Pages 295 to 306 and 347 of the transcript); however I did not find the information to be sufficiently reliable or relevant to the Charter application. The information she conveyed only helped to explain Ms. Finley’s conscientious objection to completing the 2006 Long Form Population Census.

She said (Page 385 of the transcript): I objected to the outsourcing to a company that is part of the American military industrial complex and that is in the business of making war and illegal war. She elaborated upon her objections (Page 387 of the transcript): If they just had military contracts, you know, that’s one thing, but the other thing is that Canadian law prohibits the use of land mines and the use of clusters -- cluster munitions, okay.

We signed onto international conventions that say it’s against the law, it’s against international law and Canadian law to be engaged in land mines and, I mean, I’m sure that, like, Lloyd Axworthy -- Lloyd Axworthy was one of the Canadians who was very active, Princess Diana, in getting those conventions into place and enforced. Lockheed Martin is a manufacturer of both of those, so what -- so I have a problem, a big one, when the government is awarding contracts to people who are in -- who are in contravention of Canadian and international law.

It seemed that she made a personal decision to boycott the 2006 Population Census because the Canadian Government had contracted with Lockheed Martin Canada. [ 38 ] Ms. Finley discussed the questions on the Long Form Population Census and why she felt it was an invasion of her privacy. Despite Mr. Arora’s assurances, she was concerned about the potential for misuse of personal information and she considered many of the questions to be an invasion of privacy (Page 350 of the transcript): Well, I was astounded that the government would want to know things such as, you know, the language that I spoke at -- at home.

I happened to look at the question that says, “How many bedrooms are in my house?” and I -- the, you know, “How many rooms are in my dwelling?” though and, you know, “How much money did I make in 2005?” and other questions like that. I just thought that this was -- just gone way overboard and that the -- there’s -- there’s no way that a census is an -- is an invasion into the privacy of people because that’s what I -- that’s what I think this is. I looked -- when I -- and I relate this to information that has been required in other times in history, like my ethnic background.

That is -- that is an area that the Government of Canada has no -- let me see. All of that ethnic background has been used in the past in very, very hideous ways and it’s the kind of information that one would expect to hand over if one was in a communist or totalitarian regime, so I strenuously took -- I -- I was offended, quite frankly – [ 39 ] Ms. Finley reviewed the 2006 Long Form Population Census question by question. She objected to providing information with respect to all questions except with respect to her gender.

Questions that she objected to answering on the basis that they were personal included: name, date of birth, marital status and if living with a common-law partner, and language spoken. She considered the question about landed immigrant status to be personal and potentially dangerous to answer, given, “the things that we’ve seen in the world that have happened to people who are of -- you know, of -- of different ethnic origins and we don’t have to go back to World War II. We can look at today.” (Page 362 of the transcript). Ms.

Finley also objected to questions about how she spent her time, including, how much time she spent doing: unpaid housework, yard work, home maintenance, or looking after children or seniors. She objected to question no. H3(b), “How may of these rooms are bedrooms?” in this way: “. . . and the government is going to fine me and put me in jail if I don’t tell them how many rooms in my house are bedrooms.” (Page 380 of the transcript)

[ 40 ] She suggested that a good deal of the information sought through the census was available from other sources. By way of example, she thought that questions about the number of hours spent working for pay or self-employment and whether the person was on a temporary layoff or absent from his job of business, might be obtained through government departments concerned with employment. [ 41 ] Ms. Finley questioned the purpose of asking some questions where she did not find them to be useful in the aggregate, such as question no. 40: “For whom did this person work?” or question no.

H1, which sought the identity of the person who paid “the rent or mortgage, taxes, electricity, etc., for the dwelling?” [ 42 ] During the course of examination-in-chief, the Crown objected to Ms. Finley phrasing her objections in terms of “the government” rather than “Statistics Canada”. However, question no. 51 which she found to be very personal, served to blur that line. That question pertained to income and the suggestion in the census form that permission be given to Statistics Canada to “use the income information, already available in his or her income tax files”. [ 43 ] Ms.

Finley wished to have the option to refuse to provide the information. Her main concern was that she was being required to provide information involuntarily and that she could be fined or imprisoned, or both, for failing to complete and submit the census form. Government Announcement Regarding the Mandatory Long Form Census [ 44 ] During the course of these proceedings the Government of Canada announced that in future the long form census would be voluntary. Ms.

Finley’s counsel filed, with the consent of the Crown, this statement of The Minister of Industry, the Honourable Tony Clement, dated July 13, 2010: The federal census conducted by Statistics Canada collects information from Canadians every five years to provide a demographic picture of our country. The questions necessary to achieve this goal are in the mandatory eight-question short-form version of the census that is sent to all Canadian households. In the past, the Government of Canada received complaints about the long-form census from citizens who felt it was an intrusion of their privacy.

The government does not think it is necessary for Canadians to provide Statistics Canada with the number of bedrooms in their home, or what time of the day they leave for work, or how long it takes them to get there. The government does not believe it is appropriate to force Canadians to divulge detailed personal information under threat of prosecution. For this reason, we have introduced changes for the 2011 Census. The government will retain the mandatory short form that will collect basic demographic information.

To meet the need for additional information, and to respect the privacy wishes of Canadians, the government has introduced the voluntary National Household Survey (NHS). Statistics Canada will conduct and release this survey, applying the same standards used for its surveys and past censuses. To promote data accuracy, this voluntary survey will be sent to a larger cross-section of households than the old long-form census. The census and the NHS will continue to supply data reflective of the attitudes and opinions of Canadians for the use of governments and public policy-makers.

The census and NHS will also continue to respect the government's commitment to official languages. For these reasons, the government believes the NHS is a more appropriate survey and will not be revisiting the issue of the old long form. We believe the new form that will be used in 2011 will reasonably limit what Canadians felt was an intrusion of their privacy. I strongly encourage Canadians to participate in the new NHS." The Defense Charter Application [ 45 ] The application is pursuant to ss 8 and 24(1) of the Charter and s. 52 of the Constitution Act.

It was argued that s. 31 of the Statistics Act offends s. 8 of the Charter insofar as it compels the provision of personal information and that this is an unreasonable search and seizure. The Defense applied for a declaration that: s. 31 of the Statistics Act is of no force and effect, or asked that s. 31 be read down so that it does not apply to objections to complete the census, or so that “protection of personal information pursuant to s. 8 of the Charter ” be found to be a “lawful excuse” as set out in s. 31.

The Crown Argument [46] The Crown argued that the Canadian public has an interest in the collection of statistical information relating to the social,economic, and general activities, and conditions of the people of Canada, as this data informs governments as they engage in the task ofdetermining the benefits and services needed by the public.

The Crown argued that s.8 of the Charter is not engaged in thesecircumstances because compelled responses cannot be the subject of a search or seizure and even if they could, s. 8 is not engagedbecause of the purpose and use to which the responses will be put and the privacy protections under the Statistics Act.

It further arguedthat if s.8 of the Charter is engaged, the Statistics Act is a reasonable interference with s. 8 interests, compulsion alone does not renderinterference with s.8 interests, unreasonable, and the right to privacy and the impugned activity must be examined in a contextual way indetermining if there has been a breach of that right. With respect to the announcement of the Minister of Industry, above, it argued thatpolicy in relation to future censuses and whether a census or certain questions may be mandatory or voluntary, are not determinative ofthe constitutionality of s. 31 of the Statistics Act.

The Crown pointed out that Ms. Finley refused to answer questions that are contained inthe 2006 Short Form Population Census, as well, which questions would not be affected by the stated intentions of the Governmentregarding future censuses. With respect to remedy, it maintained that the only appropriate remedy, if any, would be a dismissal of thecharge pursuant to s. 52 of the Charter on the basis that no one may be found guilty of an unconstitutional offence.

The Crownmaintained that any declaration regarding s.31 should be confined to that aspect of s. 31 which is unconstitutional and recourse to s. 24(1)of the Charter is unnecessary. Reasoning [47] The applicant bears the burden of establishing on a balance of probabilities that there has been a violation of the Charter and thatthe requested relief should be granted.

Section 8 of the Canadian Charter of Rights and Freedoms provides: 8. Everyone has the right to be secure against unreasonable search or seizure.

Section 52 of the Constitution Act provides: 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitutionis, to the extent of the inconsistency, of no force or effect. Is there a search or seizure within the meaning of s. 8 of the Charter? [48] The Crown argued that s. 8 of the Charter was not engaged because there is no “thing to search or seize”.The Crown said that inthe context of s. 31 of the Statistics Act the thing at issue did not exist at the time of the search as it is information that has yet to beproduced.

The Crown referred to tangible and intangible things which have been the subject of searches, including: a scent (R. v. Evans,infra), heat emissions, (R. v. Tessling, infra), or intercepted conversations through electronic monitoring or eavesdropping (R. v. Sandhu,infra). The Crown relied upon the discussion by Southin J.A., in R.v. Sandhu, (BC CA), [1993] B.C.J. No. 1279(BCCA), paragraph 110 and the finding that “things” included words spoken.

In Sandhu, supra, the Court was not considering aninformational search and the reference to the meaning of search was positively extended to the spoken word; the discussion was not, inmy view, intended to be exclusionary. The Crown also relied upon LaForest, J.’s discussion of the word “seizure” in R. v.

Dyment, (SCC), [1988], 2 S.C.R. 417, at paragraph 26, where he stated: “The essence of a seizure under s. 8 is the taking of a thingfrom a person by a public authority without that person’s consent.” Upon my reading of the remarks, there was no attempt to define theword “thing”. [49] Sandhu, supra, and Dyment, supra, were concerned with the exclusion of evidence. The application before the Court concernsthe constitutional validity of a

section which compels the completion and submission of a form, calling for printed responses toquestions. If complied with, the census results in the production of a tangible thing. In any event, the “thing” with which this application,is concerned , is “information” in a printed form, which may be forcibly obtained by means of threatened prosecution of an offence. [50] The Crown relied upon Thomson Newspapers, 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, for authority that “compelling a

[50] The Crown relied upon Thomson Newspapers, (SCC), [1990] 1 S.C.R. 425, for authority that “compelling aperson to reveal what is in their mind, is akin to compelling testimony and is not a search”. The decision concerned orders, pursuant to s.17 of the Combines Investigation Act to appear before the Restrictive Trade Practices Commission to be examined under oath and toproduce documents. The discussion about compelling the production of information is noteworthy. La Forest J., beginning at paragraph120, saw little difference between taking a thing and forcing a person to give it up.

He agreed with Wilson J. that an order to producedocuments in that case constituted a seizure within the meaning of s. 8. Justice L’Hereux-Dubé , agreeing with Wilson J., wrote atparagraph 231, that while an order to testify would not constitute a seizure because it would amount to a seizure of one’s thoughts, shereasoned that a subpoena duces tecum may be considered a “seizure” within the meaning of s. 8.

At paragraph 278, she wrote: 278 I am prepared to accept Wilson J.'s conclusion that subpoenae duces tecum constitute "seizures" for the purpose of that provision.The contrary point of view, which is taken by Sopinka J., fails to recognize that an actual intrusion and a compulsion to produce arefunctionally equivalent. Lamer J. held that s.17 was inconsistent with s. 8. Sopinka J. held that it offended s.7 but not s. 8. The Supreme Court ultimately upheldthe Appellate Court decision that s. 17 did not violate either s. 7 or s. 8 of the Charter.

The Court was divided in its reasoning and it wasnot considering a requirement that an individual produce a thing, a completed census form, but rather a compulsion to testify andproduce documents. [51] When Thomson Newspapers was decided, the Supreme Court had ruled that confidential information could not be the object oftheft under the Criminal Code (See R. v. Stewart, (SCC), [1988] 1 S.C.R. 963, referred to at paragraph 232 of ThomsonNewspapers.) and the offence of identity information theft did not yet exist. See s. 402.1 and 402.2 of the Criminal Code.

In ThomsonNewspapers, it is worth noting that there were procedural safeguards in place and that there are none in Ms. Finley’s case. IndeedSopinka, J. discussed, beginning at paragraph 322, that the existence of procedural safeguards are crucial in characterizing the nature ofthe process employed by the demanding authority and wrote at paragraph 326: 326 It may be that, once the review procedure is completed and the demanding authority has cleared away all legal impediments to theenforcement of its demand, there is a seizure. . . [52] In R. v. McKinlay Transport (SCC), [1990] S.C.J.

No. 22, the Court was concerned with a prosecution unders. 238(2) of the Income Tax Act. The appellants had been served with demands pursuant to s.231(3) that they furnish information andproduce documents. Wilson J. characterized the demands pursuant to s. 231 as a “seizure”; albeit not one which violated s. 8 of theCharter having regard to the purpose of the impugned provisions. At paragraph 22 Wilson J. wrote: 22 . . .

Thus, compelled production reaches beyond the strict filing and maintenance requirements of the Act and may well extend toinformation and documents in which the taxpayer has a privacy interest in need of protection under s. 8 of the Charter although it maynot be as vital an interest as that obtaining in a criminal or quasi-criminal context. I would therefore conclude that the application of s.231(3) of the Income Tax Act to the appellants constitutes a "seizure" since it infringes on their expectations of privacy.

The McKinlay decision is otherwise of limited assistance given that there are material differences in circumstances between the inMcKinlay and the current application pertaining to the Statistics Act. [53] By way of analogy, one may consider a demand for a breath sample, which does not yet exist and that demand coming within thepurview of s. 8 of the Charter. See R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87 at paragraphs 51 to 53, where SopinkaJ. discussed the requirement of reasonable and probable grounds and the applicability of s. 8 to a demand for a breath sample. See also R.v.

Gundy, 2008 ONCA 284 , [2008] O.J. No. 1410 (C.A.). It is a material distinction that an accused has a means to challengethe use of such evidence against him in a prosecution, in the context of a Charter application. There is no such avenue in this case. Oncethe information is provided by means of completing and submitting the census form, there is no practical means for the individual tochallenge the use of that information.

Having said that, it is significant that the compelled information under the Statistics Act will notbe used against the individual and is not gathered for the purpose of a criminal investigation. [54] There have been a number of decisions concerned with previous censuses. I have considered R. v. Holman, (AB CJ), [1983] A.J. No. 1043, 28 Alta L.R. (2d) 35 (PC), which was concerned with the 1981 Population Census. Provincial CourtJudge Oliver discussed the applicability of s.8 before concluding that the search that was conducted was reasonable.

He stated atparagraph 58: 58 If "search" under s. 8 of the Charter is not construed to cover demands for information where disclosure is compelled by law, norights of informational privacy are afforded anyone in Canada under s. 8 in circumstances where such demands are unreasonable, that is,where there has been an unwarranted invasion of privacy.

Before leaving the Holman decision, it’s worthwhile to note Judge Oliver’s comments about the nature of the questions and themandatory aspect of the survey: 63 First of all, although this might not be apparent to some, the answers to the questions posed by the census questionnaire, includingthe questions specifically objected to by the accused in this case, are clearly necessary to provide a sound statistical basis for taking

intelligent government action in legislative as well as policy areas in a country as vast in area and with so many diversified interests asCanada. 64 In my view, this is not the type of operation that would lend itself to some sort of random sampling on a voluntary basis.The government requires this information from everyone concerned and it requires correct information. The government is, therefore,entitled to compel disclosure and to require that the questionnaire be signed. It must, however, do all in its power to ensure that theinformation provided is kept confidential.

It cannot, of course, guarantee confidentiality against the activities of the criminal element insociety. [55] In R. v. Otto, [1984] B.C.J. 3199 (County Court) Justice Hogarth raised concern about the process of completing the census formin some households, where the members live relatively independent and private lives; a concern not raised in these proceedings. Heacknowledged the importance of the information sought and the need for the census to be compellable and reliable.

He expressed noconcern about the bulk of the questions but also expressed caution about some questions and their potential impact upon members of ourcommunity whose experiences have given them reason to be cautious, perhaps even fearful of government.

His remarks would have beenspecific to the census form before him, beginning at paragraph 102: 102 All the oaths of the census takers and employees of the bureau piled on end can hardly serve as protection from theembarrassment that the compilation and completion of this form could bring about (if it were honestly answered) in any given householdwhere numerous people just happen to be living and pursuing independent lives and interests. 103 I am in perfect agreement that the government is permitted extensive and penetrating inquiry into the private lives of itscitizens before it can be said to be within the context and the purposes of the Act, acting "unreasonably". 104 Modern government planning future programmes of a universal nature must have in hand adequate knowledge of need andnumbers based on sound statistics to ensure adequate provisions for their implementation.

Almost every aspect of government actiondepends to some extent upon statistics. 105 Equally, they must be compellable and reliable, particularly in the taking of the census.

The census forms a broad base formany aspects of governmental and private sector action and to depend on the voluntary return of a form sent out in the millions to allCanadians would be a futile endeavour to say the least. 106 And, again, the bulk of the questions, although intrusive upon privacy are by no means offensive or unreasonable andrequire no justification or explanation over and above that contained in common sense and the "Message to All Canadians" inscribed onthe form. . . . 109 There are many persons in this country who have escaped from authoritarian regimes and who have seen in their lifetimes thatreliance and trust blindly placed in authority can be a dangerous proposition upon which to act and who quite rightly respond to intrusivequestions pertaining to race, religion, ethnic origin, language and the like when coming from persons with authority with thecounterclaim, "Why do you want to know?". [56] In R. v.

Gavreau, [1988] A.J. No. 1360 (P.C.), while the accused was acquitted because responses to the questions were foundnot to be mandatory, the Court considered whether there was a “thing” to “search”. The Court simply found that it was unable toconclude that there was an unreasonable seizure or an invasion of privacy. [57] In R. v. Gill, (MB KB), [1995] 7 W.W.R. 61,103 Man. R. (2d) 241, 99 C.C.C. (3d) 308, (Q.B.) JusticeClearwater engaged in a thought provoking discussion as to whether the population census was an invasion of privacy. This was done inthe context of Mr.

Gill’s attempt to establish that he had a lawful excuse for failing to comply with the mandatory census. The Courtdeclined to deal with the Charter issues because The Constitutional Questions Act had not been complied with. Earlier decisionsconcerning the census were carefully considered. He remarked on discussions about the appropriateness of the questions asked. Seeparagraph 33 where he questioned R. v. Otto, supra, and remarked, among other things, on the absence of evidence regarding thereasonableness and necessity of the questions.

In Gill, the Court had the benefit of testimony concerning the government’s purpose incollecting the statistics apropos to the questions in the census. With respect to the issue of confidentiality, he wrote at paragraph 36: 36 . . .

Moreover, I am satisfied in the absence of any specific evidence to the contrary, that the mechanisms put in place by thegovernment pursuant to the Statistics Act and other relevant statutes, are reasonable in terms of keeping this information confidential.Moreover, although many of the questions are "personal" in nature, the information is collected and put into "statistics" where theindividual is not named or otherwise identified.

The purpose is, according to the evidence before me, reasonable in a democratic society.am satisfied that the exercise is not a breach of the accused's reasonable expectation of privacy . . . In my opinion, based on the evidence led by the Crown in this case, the collection and compilation of the statistical information is

reasonably necessary and, although there is always some risk of breach of the confidentiality sections of the Statistics Act and otherlegislation, there is no evidence to suggest that this is a real likelihood. Moreover, proceeding on the assumption that the collection andcompilation of the information is necessary for the development of future government policy, as testified to by the witness Sheridan, anysubsequent breaches of confidentiality should be dealt with if and when they actually occur. . . .

Justice Clearwater noted two potential remedies regarding a breach of confidentiality: an action for damages in the event of a breach, andan injunction in the event of a threatened breach. What is the purpose of s. 8 of the Charter? [58] At paragraph 11, in R. v. Evans, (SCC), [1996] S.C.J. No. 1, Sopinka J., referring to Hunter v Southam Inc. (SCC), [1984] 2 S.C.R. 145, reasoned that a court must consider the purpose of s. 8 of the Charter and whether theimpugned action constitutes a “search” within the meaning of s. 8: 11 What then is the purpose of s. 8 of the Charter?

Previous decisions of this Court make it clear that the fundamental objective of s. 8is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145, at p. 160, the objective of s. 8 of the Charter is "to protect individuals from unjustified state intrusions upon their privacy". Clearly,it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of theCharter comes into play.

As a result, not every form of examination conducted by the government will constitute a "search" forconstitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacyinterest of individuals does the government action in question constitute a "search" within the meaning of s. 8.

The focus then is not on the nature of the examination conducted, so much as whether, by virtue of the government action, there has beenan intrusion upon a reasonable privacy interest of an individual. [59] In Evans, supra, Major, J., referred to Hunter v Southam, Inc. supra, and wrote that in determining whether there has been asearch, there must be a consideration of the necessary balance between individual and state interests, at paragraph 47: 47 This balance between individual and state interests must be considered not only in determining whether or not a search wasreasonable but also at the threshold stage of determining whether a particular investigative technique used by the police constitutes asearch at all within the meaning of s. 8.

On the totality of the circumstances is there a reasonable expectation of privacy? [60] In R. v. Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, Arbour, J., wrote at paragraph 18 that the totality of thecircumstances must be determined in determining if there is a reasonable expectation of privacy. [61] Earlier, in R. v. Plant, (SCC), [1993] 3 S.C.R. 281, at paragraphs 18 and 19, Sopinka J. discussed the contextualelements that are crucial to determining if there is a reasonable expectation of privacy.

He specifically noted a passage of LaForest, J.,taken from Dyment, supra, at paragraph 18, regarding the importance of retaining personal information and at paragraph 20 he discussedthe type of information that may be afforded constitutional protection: 18 Some indication of the parameters of the protection afforded by s. 8 with respect to informational privacy can be derived from thefollowing passage from the reasons of La Forest J. in Dyment, supra, at pp. 429-30, commenting on the Report of the Task Force onPrivacy and Computers: In modern society, especially, retention of information about oneself is extremely important.

We may, for one reason or another, wish orbe compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the informationshall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. . . . 20 . . . In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. . .

[62] In R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, Deschamps J. referred to a non-exhaustive list of criteriapreviously developed by the Supreme Court when determining the totality of the circumstances. It is instructive in that regard to turn toR. v. Edwards, (SCC), [1996] S.C. J. No 11 at paragraph 45 which provides principles and criteria for determining thenature of the s. 8 right and whether there is a reasonable expectation of privacy in the circumstances: 45 A review of the recent decisions of this Court and those of the U.S.

Supreme Court, which I find convincing and properlyapplicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to besecure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3.

The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation ofprivacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, atp. 54, and Wong, supra, at p. 62. 6.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner. [63] In R. v. Patrick, 2009 SCC 17 , [2009] S.C.J.

No. 17, Binnie J. discussed the reasonableness of the expectation ofprivacy from the subjective and objective standpoint and added, the following elements for consideration, at paragraph 38: 38 The reasonable expectation of privacy "can vary with the nature of the matter sought to be protected, the circumstances in whichand the place where state intrusion occurs, and the purposes of the intrusion": R. v. Colarusso, (SCC), [1994] 1 S.C.R.20, at p

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