Her Majesty the Queen - v. -, 2017 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 014 Date: February 17, 2017 Information: 90215170 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.N. Steel & Metal

(2002) Inc. Appearing: Buffy Rodgers For the Crown Terry Zakreski, Q.C. For the Accused JUDGMENT B.M. KLAUSE , J I INTRODUCTION [ 1 ] B.N. Steel & Metal

(2002) Inc. (hereinafter “BN”) is charged pursuant to the City of Saskatoon Bylaw No. 6066 (the “Bylaw”) that between June 15, 2016 and June 18, 2015 at Saskatoon, Saskatchewan did fail to report each working day as required by s. 39(

e) of the Bylaw. The matter proceeded to trial on September 29, 2016, and was adjourned to today’s date.

[ 2 ] Charges under the Bylaw may be proceeded against by

summary conviction. The defence attacks the charge on two grounds: (

i) on its merits, asserting that a finding of guilt for the charge is not supported by the evidence; and (ii) by way of a Constitutional challenge to the validity of the Bylaw, namely, that it is in conflict with paramount Federal legislation, the Personal Information Protection and Electronic Documents Act , SC 2000, c 5 [ PIPEDA ]. II THE BYLAW [ 3 ] Bylaw 6066 came into effect on January 1,

Section 39 reads as follows: 39. Everyone who carries on the business of a secondhand store, junk store, scrap metal yard, auto wrecking, or salvage yard, shall be subject to the following regulations: (

a) The property occupied by anyone who carries on any of the businesses referred to in this

section except secondhand stores shall be fenced with chain link, sheet metal or close board materials, to a height of six (6) feet above ground level. (

b) No person carrying on any of the businesses referred to in this

section shall in the conduct of his business, purchase goods or chattels from any person under the age of eighteen (18) years, or from any person who fails to identify himself for the purpose of the record required to be kept pursuant to paragraph (

c) hereof. (

c) Any person carrying on any of the businesses referred to in this

section shall keep a book or record in a form satisfactory to the Chief of Police in which shall be recorded at the time any property is purchased, the following information: (

i) An accurate detailed description of any personal property purchased, any markings, serial numbers or other identification on such property; (ii) The price paid for such property; (iii) The date property is purchased; (iv) The name, address and description of the person or persons from whom such purchase is made; (

v) The license number and description of the vehicle in which the property was delivered. (

d) The book or record referred to in paragraph (

c) hereof shall be open to inspection by the License Inspector or Peace Officer at all times during business hours. (

e) Every person to whom this

section applies shall, each working day, deliver to the Chief of Police an accurate report from the records referred to in paragraph (

c) of all goods, articles or things purchased by him the preceding day. (

f) No person to whom this

section refers shall sell any goods or chattels purchased by him for a period of five (5) days from the time of purchase of same, and when any sale is made, the name and address of the purchaser shall be recorded together with any information required by this

section to be recorded.

[ 4 ]

Section 39 is subject to the operation of s. 39A, which reads as follows: 39A. (

a) In addition to any requirement on the part of any person carrying on any business referred to in Sections 38 and 39 for the keeping of any record, every person carrying on any such business shall record each transaction separately on a card similar to that attached hereto and marked as "Schedule A" and forming part of this bylaw. (

b) Supplies of cards referred to in subsection (

a) may be obtained from the Office of the Chief of Police. (

c) Every person to whom this

section applies shall deliver completed cards for each business transaction to the Office of the Chief of Police not later than 11:00 a.m. of the business day following the acquiring of the goods. [ 5 ]

Schedule A forms part of the Bylaw, insofar as the cards which the reports are to be submitted on are to be similar.

Schedule A contains a card with fields for data input. The fields of information called for are as follows: “NAME”, “ADDRESS”, “SEX”, “HEIGHT”, “HAIR”, “AGE”, “WEIGHT”, “RACE”, “CLOTHING & REMARKS”, “IDENT. PRODUCED”, “DEALER”, “ARTICLE”, “TRADE NAME MAKE”, “MODEL SERIAL”, “SIZE COLOUR”, “MATERIAL”, “DATE”, “TIME”, “AMOUNT PAID”, “PURCH NO”. [ 6 ] The obligation created by the Bylaw is very specific. The scrap metal yard is to record on separate cards similar to the one attached as

Schedule A the information required thereto, including all of the information required under s. 39(c), for each transaction for every working day, and deliver the same to the Chief of Police on the following business day by 11:00 a.m. [ 7 ] The offence created by the Bylaw is failing to comply with that reporting obligation, which is specific both as to content and the procedure for submitting the information.

Needless to say, it is an outdated and politically incorrect bylaw. [ 8 ] The substantive issue is whether the evidence shows beyond a reasonable doubt that BN did fail to report as required under the Bylaw each working day between June 15, 2015 and June 18, 2015. III FACTUAL BACKGROUND [ 9 ] Two witnesses were called by the Crown. The first was Sergeant Jason Pfeil, the second was Constable Ashley Bergamasco, whose last name was at times material to this case formerly McFarlane.

One witness was called by the defence, Sherri McEwan, the office manager for BN. [ 10 ] Sergeant Pfeil has been an officer for twenty years, the last four years of which have been in the General Investigation section. He was assigned by the Saskatoon Police Service (the “SPS”) to deal with the issue of metal theft and the related problem of crystal meth use. This problem became a focus of the SPS around 2012. [ 11 ] I would note at the outset that the defence had no issue with Sgt.

Pfeil testifying in an expert capacity as to the issue of metal theft and the related problem of crystal meth use. [ 12 ] Sergeant Pfeil testified that metal theft, principally copper, is a pressing problem that is often related to the issue of crystal meth use in Saskatoon. Stealing metal is a low risk, high reward activity as it is easily converted into cash which can then be used to support daily drug use. Stealing the metal leads to a variety of problems. Obviously, there are economic costs for individuals and businesses.

Copper and other valuable metals are often used in critical infrastructure, such as structures maintained by SaskPower. Theft can create dangerous situations for their personnel, and cause outages in services such as power, cell service, or access to 911. Further to that, some copper wiring has a plastic or rubber casing. By taking the wire to a remote location and burning off the coating, the metal will fetch a higher sale price. This creates a hazardous burn site.

[ 13 ] In Sgt. Pfeil’s opinion, immediate reporting of sales of metal to scrap metal yards would be the most valuable since the thieves typically sell it as soon as they steal it. [ 14 ] As a result, Project Tesla was started. Sergeant Pfeil testified that the goal of this project was to initially have a bylaw drafted that would require scrap metal yards to start reporting. When looking into how this might work, he found out that Bylaw No. 6066 existed. The decision was made to revive that bylaw and to start the required reporting. [ 15 ] There are three scrap metal yards in Saskatoon, BN being one of the three.

On December 5, 2013 Sgt. Pfeil hosted a meeting with himself and the representatives of the three scrap metal yards. Mark Riffel, the owner of BN, was there with Sherri McEwan. So too was a solicitor for the City of Saskatoon. The purpose of the meeting was to present the Bylaw to the scrap metal yards, to tell them that they had to start reporting and to then work out how the information would be reported . During the meeting Sgt.

Pfeil realized that the Bylaw as drafted was not viable and was inappropriate, however, an agreement was reached. [ 16 ] The agreement reached between the parties was significantly different from the reporting requirements under the Bylaw. Cards were not to be used. Instead, BN was encouraged to use a software program called BWI, which charged $0.50 per recorded transaction. That program was ultimately not used as BN decided to purchase another software program called ScrapIt.

In the end, BN was to record the name, address, driver’s licence number, eye colour, height, and the licence plate number of the vehicle for each vendor of scrap metal that came to their business. Additionally, information about the purchases by BN was to be submitted, including the date/ticket number, product type, weight, how many units of the product, and its cost. This reporting was to begin with a grace period, ending in May, 2014. [ 17 ] The daily reporting of the three scrap metal yards increased the workload with respect to the information being submitted. Eventually, Cst.

Bergamasco was assigned to help Sgt. Pfeil within the General Investigations section. Her task, as Sgt. Pfeil testified, was to take the daily reports and put them into a more useable form. This would allow him to make better use of the information and it would assist with investigating metal thefts. The Crown’s evidence was that about 75% of the information collected was innocent, with 25% being relevant to their investigative purposes. [ 18 ] During the grace period, reporting was generally consistent, and then fell. The daily reports were not being submitted each day.

Sometimes emails would have to be sent out in order to gain compliance with their reporting agreement. At other times, information that was to be included in the reports, such as licence plate information, was missing. In other words, there was a trend of late reporting and incomplete reporting. That said, I am mindful of the fact that the factual issue before the Court is much more narrow, that is, compliance with the Bylaw between June 15 and 18 of 2015. [ 19 ] On June 18, 2015, Sgt. Pfeil decided to charge BN for non-compliance with the Bylaw.

Bylaw No. 6066 provides, in part, for licensing, regulating and governing certain businesses. There is no specific penalty provision in the Bylaw for ss. 39 or 39A. The Bylaw does, however, provide for the appointment of a Licence Inspector, some of whose duties under s. 2 are to monitor licensees for compliance with the Bylaw and to diligently prosecute those who violate it. The Bylaw seems to imply that under s. 13 licences can be denied, suspended or cancelled. [ 20 ] The City decided to prosecute for non-compliance with Bylaw No. 6066.

City of Saskatoon Bylaw No. 8177 provides generally for penalties and enforcement of City of Saskatoon bylaws.

Section 3 of Bylaw No. 8177 states that its penalties and procedures apply unless a different penalty or procedure is provided for in the bylaw creating the offence. Section 4(1)(

b) of Bylaw No. 8177 creates a penalty whereby every corporation that contravenes any provision of a City of Saskatoon Bylaw is liable on

summary conviction to a fine not exceeding $25,000. [ 21 ] No argument was made as to whether or not Bylaw No. 8177 should apply in this case. IV POSITION OF THE PARTIES

i. Crown [ 22 ] With respect to the Constitutional challenge, the Crown states that s. 39 of the Bylaw is not in conflict with PIPEDA . In short, they argue that PIPEDA , as it applies to this case, requires the collecting and disclosing of personal information pursuant to s. 39 of the Bylaw be done by fair and lawful means, with the individual’s consent and only for stated and reasonable purposes. Since Sgt.

Pfeil’s testimony discloses a reasonable purpose for s. 39 of the Bylaw, and since s. 39 does not state that such information should be collected without the consent of individuals, the reporting requirements under the Bylaw are not in conflict with PIPEDA .

The Crown states that BN is therefore obligated to obtain the knowledge and consent of individual vendors before the collection and disclosure of their information to SPS by BN in order to maintain compliance with PIPEDA . [ 23 ] In short, the Crown submits that BN should be telling its customers that they will be submitting their information to the police, and that if they do not agree with that, then they can take their business elsewhere.

Since no one would therefore give over their information absent consent, PIPEDA will not be contravened. [ 24 ] On the substantive issue, the Crown submits that each element of the offence has been proven beyond a reasonable doubt, and that a conviction should be entered against BN. ii. BN Steel & Metal [ 25 ] On the Constitutional issue, BN argues that s. 39 of the Bylaw, as it is drafted, conflicts with PIPEDA ’s scheme, is void because of that conflict, and that therefore BN cannot be found liable as a result. The crux of the argument is this: PIPEDA protects the privacy interests of individuals.

One way it does this is by requiring that only personal information which is necessary be collected and disclosed. This necessity criterion, they argue operates in relation to SPS’s purposes, that is, investigating illegal acts such as metal theft.

Because the majority of the information collected and disclosed is innocent and at best helpful, it is not necessary and some of the information is entirely irrelevant, such as recording a person’s race. [ 26 ] Therefore, since s. 39 as drafted substantially conflicts with this “necessity” criterion in PIPEDA , s. 39 should not apply to BN. [ 27 ] In support of this argument, BN relies on a number of provisions of PIPEDA , such as ss. 5 and 7 , as well as clause 4.4, and a number of cases, which I will address in the course of these reasons.

V ANALYSIS [ 28 ] I would note at the outset that, in my opinion, both the argument of the Crown and of BN misconstrues the scheme and application of PIPEDA in the circumstances of this case. [ 29 ] In short, the Crown’s

interpretation would mean that PIPEDA imposes an obligation on organizations to gain knowledge and consent of individuals for collection and disclosure of their personal information in the law enforcement context. There is no wording in PIPEDA creating such an obligation; indeed, the scheme of the legislation on this point is permissive, it permits for collection and disclosure to the government for law enforcement purposes without consent where certain preconditions are met. [ 30 ] BN’s

interpretation, in my opinion, subtly misconstrues the meaning of clause 4.4, which contains the necessity test. Part of what makes PIPEDA confusing are the variety of purposes which the legislation tries to deal with. Clause 4.4 requires that the collecting organization only collect that personal information which is necessary for its purposes. That purpose, in this situation, is to comply with the requirements of a lawful request of a governmental institution. The purpose of SPS, the governmental institution, is law enforcement.

[ 31 ] The purposes of the SPS, to investigate illegal conduct and enforce the law, are not found anywhere in the wording of clause 4.4. A. PIPEDA and

Section 39 of Bylaw No. 6066 i. PIPEDA ’s operation in Saskatchewan [ 32 ] There is legislation in Saskatchewan dealing with information of individuals and privacy issues: The Freedom of information and Protection of Privacy Act , SS 1990-91, c F22.01 and The Privacy Act , RSS 1978, c P-24 are two examples. However, in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 , 2013 SCC 62 the Supreme Court at para 13 stated: PIPEDA generally applies to private sector organizations engaged in commercial activities in any province.

It does not apply, however, if the Governor in Council determines that there is comparable protection in place in the province[.] [ 33 ] This is the situation because of s. 26(2) of PIPEDA , which uses the wording “substantially similar” instead of “comparable”. Under s. 25(1), the Privacy Commissioner is to submit an annual report indicating which provinces have enacted substantially similar legislation. No such determination that Saskatchewan has legislation substantially similar to that of PIPEDA has been made. Accordingly, PIPEDA applies in this jurisdiction.

Of note, given the reliance on certain cases in this matter, is that Ontario and Alberta have legislation deemed substantially similar. ii. Relevant provisions of PIPEDA 2

(1) The

definitions in this subsection apply in this Part. commercial activity means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists. organization includes an association, a partnership, a person and a trade union. personal information means information about an identifiable individual.

(2) In this Part, a reference to clause 4.3 or 4.9 of

Schedule 1 does not include a reference to the note that accompanies that clause. 3 The purpose of this

Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. 4

(1) This Part applies to every organization in respect of personal information that (

a) the organization collects, uses or discloses in the course of commercial activities; …

(1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in

Schedule 1. …

(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. 7

(1) For the purpose of clause 4.3 of

Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if … (

e) the collection is made for the purpose of making a disclosure (

i) under subparagraph (3)(c.1)(

i) or (d)(ii), or (ii) that is required by law. …

(3) For the purpose of clause 4.3 of

Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is … (c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that … (ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law,

SCHEDULE 1 4.4 Principle 4 — Limiting Collection The collection of personal information shall be limited to that which is necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means. 4.4.1 Organizations shall not collect personal information indiscriminately. Both the amount and the type of information collected shall be limited to that which is necessary to fulfil the purposes identified. Organizations shall specify the type of information collected as part of

their information-handling policies and practices, in accordance with the Openness principle (Clause 4.8). 4.4.2 The requirement that personal information be collected by fair and lawful means is intended to prevent organizations from collecting information by misleading or deceiving individuals about the purpose for which information is being collected. This requirement implies that consent with respect to collection must not be obtained through deception. 4.4.3 This principle is linked closely to the Identifying Purposes principle (Clause 4.2) and the Consent principle (Clause 4.3). iii.

Interpreting PIPEDA [ 34 ] A recent decision of the Supreme Court, R v Spencer , 2014 SCC 43 [ Spencer ], discusses some of the provisions of PIPEDA that are relevant to this case. Spencer is not on point for BN’s situation. However, it does provide some guidance on how to interpret these provisions: 61 … [ PIPEDA ] protects personal information held by organizations engaged in commercial activities from being disclosed without the knowledge or consent of the person to whom the information relates: Sch. 1, clause 4.3.

Section 7 contains several exceptions to this general rule and permits organizations to disclose personal information without consent. The exception relied on in this case is s. 7(3) ( c.1 )(ii).

It permits disclosure to a government institution that has requested the disclosure for the purpose of law enforcement and has stated its "lawful authority" for the request… 62 Section 7(3)( c.1 )(ii) allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. …[T]he purpose of PIPEDA is to establish rules governing, among other things, disclosure "of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information" (s. 3), it would be reasonable… to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA 's general prohibition on the disclosure of personal information without consent. 63 …[Section] 7(3)( c.1 )(ii) of PIPEDA … permits disclosure only if a request is made by a government institution with "lawful authority" to request the disclosure.

It is reasonable to expect that an organization bound by PIPEDA will respect its statutory obligations with respect to personal information. …Section 5(3) is a guiding principle that underpins the

interpretation of the various provisions of PIPEDA . It does not allow for a departure from the clear requirement that a requesting government institution possess "lawful authority" and so does not resolve the essential circularity of using s. 7(3)( c.1 )(ii) as a factor in determining whether a reasonable expectation of privacy exists. 64 I also note with respect to an ISP's legitimate interest in preventing crimes committed through its services that entirely different considerations may apply where an ISP itself detects illegal activity and of its own motion wishes to report this activity to the police.

Such a situation falls under a separate, broader exemption in PIPEDA , namely s. 7(3) ( d ). The investigation in this case was begun as a police investigation and the disclosure of the subscriber information arose out of the request letter sent by the police to Shaw. 65 The overall impression created by these terms is that disclosure at the request of the police would be made only where required or permitted by law. Such disclosure is only permitted by PIPEDA in accordance with the exception in s. 7 , which in this case would require the requesting police to have "lawful authority" to request the disclosure.

For reasons that I will set out in the next section, this request had no lawful authority in the sense that while the police could ask, they had no authority to compel compliance with that request. …

…… 70 … PIPEDA prohibits disclosure of the information unless the requirements of the law enforcement provision are met, including that the government institution discloses a lawful authority to obtain , not simply to ask for the information: s. 7(3)( c.1 )(ii). … 71 "Lawful authority" in s. 7(3)( c.1 )(ii) of PIPEDA must be contrasted with s. 7(3) ( c ), which provides that personal information may be disclosed without consent where "required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records".

The reference to "lawful authority" in s. 7(3)( c.1 )(ii) must mean something other than a "subpoena or [search] warrant". "Lawful authority" may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins .

As the intervener the Privacy Commissioner of Canada submitted, interpreting "lawful authority" as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3) and should be preferred over alternative meanings that do not do so… [ 35 ] In Spencer , one of the main issues was whether the accused had a reasonable expectation of privacy in the data that was provided to the police from the Internet Service Provider.

The decision provides that PIPEDA does not itself create a reasonable expectation of privacy, nor does it create the lawful authority needed by law enforcement to collect personal information. Some lawful authority must exist. [ 36 ] In this case, the issue of standing came up with respect to the privacy interests of individuals. BN’s argument relies not on any one individual’s s. 8 Charter rights, based on a reasonable expectation of privacy.

Indeed, it was not argued before me one way or the other whether individual vendors who enter a public place of business to sell scrap metal had a reasonable expectation of privacy in the information to be collected under s. 39 of the Bylaw. The attack by BN on the reporting requirements of s. 39 is broader in that it focusses on how PIPEDA may protect personal information through its regulation of how such information is collected, used and disclosed. In any event, I rely on Spencer with regards to the general

interpretation of the provisions of PIPEDA relevant to this case, especially with respect to the meaning of “lawful authority” in s. 7(3) (c.1)(ii). [ 37 ] Another recent case that gives a broader

summary of the scheme of PIPEDA is Canadian Civil Liberties Association v Canada , 2016 ONSC 4172 [ CCLA ]. In this decision, the CCLA was allowed to proceed with an application with a full hearing that seeks to have certain provisions of PIPEDA ruled unconstitutional pursuant to ss. 7 and 8 of the Charter of Right and Freedoms . The Court’s

summary of the scheme of PIPEDA is helpful: 13 The overall nature and purpose of PIPEDA is found in the

preamble:

An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions... 14

Part 1 of PIPEDA is titled “Protection of Personal Information in the Private Sector”.

Section 3 sets out the purpose of

Part 1[.]... 15 Subsection 5(3) of PIPEDA limits the collection of personal information by an organization… 16 An “organization” includes a business. Personal information is simply information about an identifiable individual. … 17

Section 7 of PIPEDA governs the collection, use, and disclosure of personal information that is collected without the person's knowledge or consent for purposes that are unrelated to business. What the Applicants are specifically concerned about is personal information that may be used for law enforcement or security intelligence purposes.

18 Section 7(1) is the collection provision. It permits an organization to collect information about an individual under certain circumstances. Of particular note is s. 7(1)(e), which states: For the purpose of clause 4.3 of

Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if . . . . . (

e) the collection is made for the purpose of making a disclosure (

i) under subparagraph (3)(c.1)(i)... 19 Section 7(3)(c.1) of PIPEDA permits disclosure of personal information to “government institutions” under certain circumstances.

The government institution must make a request and identify its “lawful authority to obtain the information” and indicate that: … (ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, … 25 … Spencer decided a narrow issue within the context of a criminal prosecution. The Applicant's challenge to s. 7(3)(c.1) is much broader. It is a systemic challenge to the scheme for disclosure to government institutions.

In particular, Spencer did not deal with either intelligence gathering or accountability mechanisms. [ 38 ] Spencer did not deal with the application of PIPEDA in the context of gathering personal information for the general enforcement of laws. The CCLA decision was in regard to an application for a full hearing involving a systemic attack on PIPEDA . I found the discussion in these cases helpful when wading through the somewhat confusing scheme of PIPEDA , and see no principled reason to deviate from them when applying PIPEDA to this case. iv.

Application to this Case [ 39 ] BN is an organization as defined in s. 2 that is involved in commercial business, also as defined in s. 2, in Saskatoon, purchasing scrap metal from individual vendors, some of whom are commercial. [ 40 ] SPS is a government institution within the meaning of s. 7 . [ 41 ] BN is permitted under PIPEDA to collect the personal information, defined in s. 2, of individuals and disclose that information to SPS where the preconditions in s. 7 are satisfied. [ 42 ] These conditions are that SPS makes a request, identifies its lawful authority to obtain the information, and indicates a permitted purpose, such as the one found in s. 7(c.1)(ii), disclosure for the purpose of enforcing any law of Canada. [ 43 ] What is the purpose of BN, the organization, in all of this?

The answer, in my opinion, is found in s. 7(1)(e)(i). That is, BN’s purpose is to collect the personal information for the purpose of making a disclosure under s. 7(3)(c.1)(ii). In other words, their purpose

in collecting information is to comply with a lawfully authorized request for that information, and it is this collection which is subject toclause 4.4, which limits collection to that which is necessary. [44]

Schedule 1, clause 4.4 states in clear language, that the organization must limit the collection of the information to that whichis necessary. The purpose of the government institution is not mentioned at all. Further, the wording only speaks to the collection, anddoes not state that the information requested to be disclosed be limited. This

interpretation fits with the scheme of PIPEDA. Clauses 4.4.1and 4.4.2 state that organizations are not to collect information indiscriminately in a deceptive manner.

Otherwise, an organization mayhave a valid purpose, over-collect on the basis of that purpose by misleading individuals, and then have at their disposal otherinformation they want. [45] I cannot therefore find that s. 39 of the Bylaw is in conflict with PIPEDA. [46] Also, I cannot accept the Crown’s position since doing so in essence would require me to read into PIPEDA an obligation oncollecting organizations which clearly is not there and which goes against PIPEDA insofar as consent and knowledge is not required incertain situations. [47] To challenge s. 39 on the basis of a conflict with PIPEDA, it seems to me the issue would have to be framed as follows: Is s. 39 of the Bylaw capable of operating as the lawful authority under s. 7(c.1)(ii) of PIPEDA needed by the Saskatoon Police Serviceto require BN to collect and disclose the information thereby requested? [48] Taking this to be the relevant issue, which may or may not be the case, my short answer to this is that I do not know.

UnderThe Cities Act, SS 2002, c C-11.1, there are likely numerous heads under which a bylaw requiring scrap metal yards report may fall.There has also been recent jurisprudence discussing s. 6 of The Cities Act: see Duffield v City of Prince Albert, 2015 SKCA 46. In anyevent, since the nature and scope of the City of Saskatoon’s authority to enact bylaws has not been argued in this matter, I do not think itwould be appropriate to rule on the limits of that authority regarding what may constitute lawful authority in the context of this case. v.

Concluding Comments [49] BN has submitted several cases in support of its position, and I will address them here. [50] In Cash Converters Canada Inc. v City of Oshawa, 2007 ONCA 502 at paras 52 and 53 [Cash Converters - Oshawa], theCourt declared invalid a bylaw that required the collection and electronic transmission to police of detailed personal information ofvendors of second hand goods. In doing so, the Court relied on s. 28(2) of the Municipal Freedom of Information and Privacy ProtectionAct, RSO 1990, c M-56 [MFIPPA].

Ontario is one of the provinces that has been found by the Governor General in Council to havelegislation that replaces the jurisdiction of PIPEDA. Section 28(2) of MFIPPA is different than the sections of PIPEDA relevant to thismatter. This case is distinguished on this basis.

Section 28(2) reads: No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used forthe purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity. [51] In Ontario (Liquor Control Board) v Vin De Garde Wine Club, 2015 ONSC 2537, the “necessity” requirement was furtherdiscussed after citing Cash Converters - Oshawa, but this time in the context of s.38(2) of the Freedom of Information and Protection ofPrivacy Act, RSO 1990, c F.31.

This case is distinguishable for the same reason as Cash Converters – Oshawa. [52] Order F2007-001, (AB OIPC) [Cash Converters - Edmonton], is a decision of the Alberta Office of the

[52] Order F2007-001, (AB OIPC) [Cash Converters - Edmonton], is a decision of the Alberta Office of theInformation and Privacy Commissioner. The Governor General in Council has also found Alberta to have privacy legislation replacingthe jurisdiction of PIPEDA. This case also involves different legislation and relies on Cash Converters – Oshawa regarding theinterpretation of the necessity principle. BN sought to rely on this case when applying the necessity principle.

After citing from CashConverters – Oshawa, the decision states at para 82: [T]he same analysis holds true for [the Edmonton Police Service’s] collection of pawnshop and second-hand store clients’ personalinformation. Through its access to the database, EPS collects this information regardless of whether there is a law enforcement need forit. Therefore it cannot be said that it collects this information for a law enforcement purpose. [53] Based on the wording of PIPEDA, I did not find that SPS was the collecting organization, a distinction that these other piecesof privacy legislation may not make.

Had I found otherwise, I would, with respect, still not find the excerpted argument persuasive. BNstated in argument that some information which is not “necessary” may yet be helpful. Without deciding, it could be the case thatinnocent information is needed in order to look for criminal trends in the entirety of the information collected, narrowing ultimately tothe suspect information.

Even though there may be no ultimate need for the information for a law enforcement purpose, it maynonetheless be collected for that purpose. [54] Finally, in Eglander v Telus Communications, 2004 FCA 387 at paras 41-2 [Eglander], the Court discusses the focus of theprinciples in

Schedule 1 of PIPEDA on the purposes for which information is collected, used or disclosed. I take no issue with theanalysis there contained; however, Eglander did not deal with the distinct statutory purposes for which information may be collected byan organization without consent, and for which a government institution may request disclosure. [55] If the issue in this case correctly narrows down to what constitutes lawful authority, then it is for the City of Saskatoon,through the democratic process, to enact a bylaw that achieves its investigatory aims.

This must be done with a bylaw that canmeaningfully be characterized as a lawful authority, whatever that may be in this situation. In my opinion, it goes too far to suggest thatPIPEDA may limit the investigatory aims in this regard by imposing a limiting principle with a necessity test. [56] What strikes me about s. 39 of the Bylaw as currently drafted is that it seems to be no more than an ongoing bare request forinformation without any meaningful parameters that relate to the investigatory purposes of the SPS.

Keeping in mind the aim ofinvestigating metal thefts from places like construction sites and critical infrastructure, several such possible parameters suggestthemselves: - transactions with commercial vendors of scrap metal are not likely to give rise to suspicion; - transactions involving certain types of purchasable scrap metal are not likely to give rise to a suspicion (for e.g., fridges, freezers,air conditioners, other appliances, etc.); - multiple transactions from the same individual within shorter periods of time may be more likely to give rise to a suspicion; - transactions involving certain types or quantities of purchasable scrap metal may be more likely to give rise to a suspicion (fore.g., bare copper metal wiring); and - transactions bearing markers relating to reports of theft of metal give rise to a suspicion. [57] Lastly, it may be helpful for a bylaw as a lawful authority to have a modern procedure for how such personal information is tobe collected, stored, transmitted for disclosure and for the enforcement of such a bylaw, whether it relates to licencing requirements orsome other kind of penalty.

B. Whether the charge has been proven beyond a reasonable doubt

B. Whether the charge has been proven beyond a reasonable doubt [58] BN is charged for failing to report as required by s. 39(

e) of the Bylaw. When asking what offence is it this Bylaw creates,and to which BN must then be held accountable, I see no reason to deviate from the following principle of statutory construction: We must…read the words of the statute in their entire context, in their grammatical and ordinary sense harmoniously with the scheme ofthe statute, its objective and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, atp. 41 (quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). R v ADH, 2013 SCC 28 at para 19. [59]

Section 39(

e) refers to the application of “this section”, and must be taken to mean s. 39 generally.

Section 39 is subject to s.39A. Therefore, the offence is as I described it above, and so the question here is: Whether BN Steel recorded on separate cards similar to the one attached as

Schedule A the information required thereto, including all ofthe information required under s. 39(c), for each transaction for every working day, and deliver the same to the Chief of Police on thefollowing business day by 11:00 a.m, for August 15, 16, 17, and 18 of 2015? i. The Evidence [60] Sgt. Pfeil testified that he did not want to burden the scrap metal companies with actually having to fill out a card. He statedthat such a reporting system would not be viable. That is why the meeting between the scrap metal companies and SPS, as well as othercommunications, took place.

Essentially, SPS worked out a reporting agreement, outside of the Bylaw, with these companies. Violationof that agreement will not ground a conviction in this case, unless it establishes a breach of their reporting obligations under the Bylaw. [61] Sgt. Pfeil was asked about the enforcement of the card system and stated that he did not know who would have beenresponsible for that. [62] Sgt.

Pfeil stated that “June the 15th’s actual report, what was required for the 15th, wasn’t received until the 18th… .” Thereport here referenced is the one required under their agreement with BN to electronically submit software generated reports. This doesnot refer to reporting to the Chief of Police with cards. [63] Sgt. Pfeil was asked whether BN was given any instruction on how to complete the card contained in

Schedule A of theBylaw. He responded: We went over the requirements and initially the instructions were that we wanted them to go with BWI [a software program]… we didn’tactually decide at the end of that meeting what the reporting requirements were going to be as far as the actual method of delivery. …thebylaw itself doesn’t specify electronic reporting.

And the other reason we went over this is there’s some things in here that are outdated.It didn’t seem politically correct at the time to record somebody’s race, so we start to play with this a little bit to decide what would befair and what would be good information to have, just to modernize it and have it agreed upon amongst all the parties as opposed tohaving to go and rewrite the bylaw. This answer does not tell me what BN did with respect to reporting via the cards in

Schedule A. [64] When questioned about the information requirements under the Bylaw, such as race, Sgt. Pfeil stated in cross-examination that“On

Schedule ‘A’ and under the bylaw, yes, they are, they were required to. But, like I said, it was agreed upon there that that would besomething that we could probably do without.” Again, that SPS could probably do without certain information required by the Bylaw

does not establish that that information was not reported as required by the Bylaw on the dates in question. [ 65 ] Sgt. Pfeil had a clear opportunity to testify as to his knowledge regarding BN’s reporting obligations under the Bylaw: THE COURT: Just for my edification, Sergeant Pfeil, on June 15th, 2015 they [BN] had the option of reporting electronically as per the earlier meeting – A: Yes. THE COURT: --is that correct? A: Yes. THE COURT: Or by card, according to the bylaw? A: Yes.

THE COURT: Did they report anything on June 15th that you required, either electronically or by card, to the best of your knowledge? A: It’s a complicated answer. THE COURT: Okay. I’m prepared to hear it. A: Okay. So the offence date of June the 15th, 2015 is for failing to report of May the 30th, June the 9th and there are a couple of other dates there. So June the 15th typically would be – the report would be received for the previous Friday, okay. We didn’t receive that report. There were other reports missing as of the 15th.

So as of the 15th nothing had been received for dates the week previous as well as the Friday, and we received nothing electronically for those dates or via card until it was asked for. [ 66 ] I accept the testimony of Sgt. Pfeil showing that the reporting obligation, as per the Bylaw, on Monday, June 15th was to report on the transactions from June 13th, 2015, being the Saturday. The week previous to which Sgt. Pfeil refers in this passage, is the Monday to Friday, being June 8th to 12th.

While reports, whether in electronic form or by card, may not have been received which were required from that date range, the testimony here falls short of showing that no report as required by the Bylaw was submitted for the transactions from June 13th, 2015 on June 15th, 2015. [ 67 ] Sgt. Pfeil testified that the reports for June the 15th, 16th, and 17th were not received until June the 18th. The reports he refers to are the software generated ones that are emailed.

Most of the other evidence regarding reporting relates to failing to report on dates in this range under the agreement that was reached, not the Bylaw. [ 68 ] Cst. Bergamasco testified the document, being the electronic PDF report generated by the Software used by BN, needed for June 15th, 2015 under the agreement was not received until June 18th. In the context of discussing the electronic reports attached as email attachments, she further testified that June 15th, 16th, and 17th of 2015 were all reported on the 18th.

Again, this is not what the Crown has to prove under the Bylaw, since the Bylaw clearly does not require electronic reports sent by email.

[ 69 ] Lastly, Sherri McEwen testified in relation to the agreement between SPS and BN for reporting through software.

She was asked about what she recalled about the meeting from December 5th, 2013, and stated: Well, it was presented to us [Bylaw 6066] and the card was brought into question and I think that kind of put a few feathers up and it was quickly realized that that’s just not a possibility, a possible way to submit, would be a physical, handwritten thing. … [ 70 ] I accept that this shows that at the meeting they discussed the feasibility of submitting cards under the Bylaw, but this does not establish that such cards were not submitted between June 15th to 18th, 2015.

The rest of her evidence is similarly silent on the issue of whether or not cards were submitted as required by the Bylaw on the dates in question. ii. Conclusion [ 71 ] The Saskatoon Police Service reached a collateral agreement with BN, whereby BN was to submit reports to SPS. This was to be done using software to generate electronic PDF reports with certain pieces of information relating to each transaction throughout the day.

The reports were to be emailed to SPS. [ 72 ] When BN did not comply with the terms of this agreement, the police charged BN with failing to comply with the Bylaw. [ 73 ] However, at trial, the prosecution of that charge focused not on BN’s possible non-compliance with the s. 39 of the Bylaw, but rather on their violation of the terms of the collateral agreement. [ 74 ] This collateral agreement is substantially dissimilar to what is required under the Bylaw. [ 75 ] The evidence in its entirety does not directly establish that BN did not comply with the reporting requirements as required by law on the days in question. [ 76 ] Without evidence establishing material elements of the offence charged, I find that guilt has not been proven beyond a reasonable doubt.

To do so would require me to draw an inference, based on the fact that BN did not comply with the agreement, and were prosecuted for that, that therefore they must also not have complied with the Bylaw. [ 77 ] Therefore, having found that the Crown has not proven beyond a reasonable doubt BN’s failure to comply with the reporting requirements imposed through s. 39(

e) of City of Saskatoon Bylaw No. 6066 between June the 15th and 18th, 2015, I find BN not guilty and dismiss the charge against it. __________________ B.M. Klause, J