NATIVE COUNCIL OF NOVA SCOTIA , NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL, NATIVE COUNCIL OF PRINCE EDWARD ISLAND , MARITIME ABORIGINAL PEOPLES COUNCIL, CHIEF JAMIE GALLANT, CHIEF KIM NASH-MCKINLEY v. CHIEF GRACE CONRAD, 2011 FC 72

Federal Court Cour fédérale Date: 20110125 Docket: T-1375-10 T-1494-10 Citation: 2011 FC 72 Ottawa, Ontario , January 25, 2011 PRESENT: The Honourable Mr.

Justice Zinn BETWEEN: NATIVE COUNCIL OF NOVA SCOTIA , NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL, NATIVE COUNCIL OF PRINCE EDWARD ISLAND , MARITIME ABORIGINAL PEOPLES COUNCIL, CHIEF JAMIE GALLANT, CHIEF KIM NASH-MCKINLEY and CHIEF GRACE CONRAD Applicants and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicants ask the Court to declare that decisions of the Governor in Council and the Minister of Industry regarding the 2011 Census and National Household Survey are unconstitutional, to enjoin the Government of Canada from administering the 2011 Census and National Household Survey in the format proposed, and to direct the Government of Canada to administer the mandatory long-form census as it did in 2006. [ 2 ] The applicants, Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, and Native Council of Prince Edward Island, are three self-governing organizations representing off-reserve aboriginal peoples in their respective provinces.

Each is a

member of the Maritime Aboriginal Peoples Council, an aboriginal Intergovernmental Council which advocates at the regional level. Chief Jamie Gallant is the President and Chief of the Native Council of Prince Edward Island. She is a Mi​kmaq and resides off-reserve. Chief Grace Conrad is the Chief and President of the New Brunswick Aboriginal Peoples Council. She is a Wolastoqiyik (Malecite) and a status Indian residing off-reserve. Chief Kim Nash-McKinley is the President and Chief of the Native Council of Nova Scotia.

She is a Mi​kmaq and a status Indian residing off-reserve. [ 3 ] The applicants object to the manner in which the Government of Canada has ordered the 2011 Census to be taken and to the questions relating to aboriginal peoples that have been ordered to be asked in the National Household Survey. The decisions under review changed the 2011 Census methodology and format from that used in 2006.

The applicants submit that these changes are contrary to the Crown​s constitutional and legal obligations to aboriginal peoples, infringe the constitutional and legal rights of aboriginal peoples to equality and non-discrimination, and will result in the Crown being unable to fulfill its duties under the Statistics Act , R.S.C. 1985, c. S-19. [ 4 ] For the reasons that follow, this application is dismissed, with costs.

The Census versus a Voluntary Survey [ 5 ] There is a constitutional requirement that a census of the population of Canada be taken by the Government of Canada every ten years: Constitution Act, 1867 , ss. 8 and 91(6) . Since 1971 the Government of Canada, through Statistics Canada, has undertaken a census of the Canadian population every five years: Statistics Act , s. 19(1). [ 6 ] The Constitution Act, 1867 offers no guidance as to the manner of taking the census or the information to be gathered.

The first Canadian census of the population was taken in 1871; it recorded n ame, sex, age, whether the person was born within the last twelve months, country or province of birth, religion, origin, profession, occupation or trade, whether the person was married or widowed or married within the last twelve months, as well as questions related to whether the person was in school or literate, and whether the person was deaf and dumb or blind. [1] [ 7 ] Subsection 19(2) of the Statistics Act provides the only direct legislative requirement as to the content of the census format.

It provides that the census ​shall be taken in such a manner as to ensure that counts of the population are provided for each federal electoral district of Canada.​ Pursuant to s. 21(1) of the Statistics Act , 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.​ [ 8 ] Given the constitutional nature of the census and the requirement that it record every person resident in Canada on the date it is taken, it is hardly surprising that s. 31 of the Statistics Act creates an offence for those who refuse or neglect to answer, or who willfully answer falsely, any census question. It is because of this provision that participation in the census is often described as being ​mandatory.​ [ 9 ] Statistics Canada , which performs the census on behalf of the Government of Canada, is also empowered to perform surveys.

Section 8 of the Statistics Act provides that ​the Minister [of Industry] may, by order, authorize the obtaining, for a particular purpose, of information other than information for a census of population or agriculture, on a voluntary basis​ and where such information is requested there is no offence for those who refuse or neglect to answer, or who wilfully answer falsely, any survey question.

The fundamental distinction between the census and a survey is that the former is intended to count everyone and it is mandatory that persons in Canada complete it accurately, whereas surveys are voluntary and typically are only sent to a portion of the Canadian public. [ 10 ] In 2006, as in each census since 1971, there were two census forms used. Most households (80%) received the short-form census which contained eight questions on basic topics such as age, sex, marital status, and mother tongue.

The remaining 20% of households received the long-form census, which contained the eight questions from the short-form census plus 53 additional questions on topics such as education, ethnicity, mobility, income, employment and dwelling characteristics. Completion of these forms was mandatory and failure to complete them accurately was an offence. [ 11 ] In 2010 the Government of Canada determined that the long-form census would be eliminated but that the mandatory short- form census would continue to be required to be completed by every household in the country.

In addition, it was determined that Statistics Canada would conduct a voluntary survey to be called the National Household Survey (NHS) which would be distributed to one third of Canadian households. The questions posed in the NHS, with limited exceptions, will include those that were asked in the 2006 long-form census.

Questions Directed to Aboriginal Peoples [ 12 ] There are no questions regarding aboriginal peoples in either the 2006 short-form census or in the proposed 2011 Census. [ 13 ] The 2006 long-form census contained four questions concerning aboriginal identification and ancestry: Questions 17, 18, 20, and 21. The questions are reproduced in full in Appendix A, however, the questions, in brief, were as follows: 17. What were the ethnic or cultural origins of this person​s ancestors? 18. Is this person an aboriginal person, that is, North American Indian, Métis or Inuit (Eskimo)? 20.

Is this person a member of an Indian Band/First Nation? 21. Is this person a Treaty Indian or a Registered Indian as defined by the Indian Act of Canada ? [ 14 ] The 2011 NHS will contain four questions concerning aboriginal identification and ancestry: Questions 17, 18, 20, and 21. Again, these questions are also reproduced in Appendix A, however, the questions, in brief, are as follows: 17. What were the ethnic or cultural origins of this person​s ancestors? 18. Is this person an aboriginal person, that is, First Nations (North American Indian), Métis or Inuk (Inuit)? 20.

Is this person a Status Indian (Registered or Treaty Indian as defined by the Indian Act of Canada )? 21. Is this person a member of a First Nation/Indian band? [ 15 ] As noted previously, the applicants object to the elimination of the long-form census and to the wording of the questions directed to aboriginal peoples in the 2011 NHS. These decisions were made in the two orders under review. The Governor in Council, by Order in Council P.C. 2010-1077 dated August 12, 2010, established that the 2011 Census was to take place in May 2011 and set out the ten questions that were to be asked.

The Chief Statistician of Canada by order dated July 19, 2010, ordered the NHS and prescribed the 66 questions to be asked. Preliminary Objection to the Evidence [ 16 ] The applicants filed the affidavits of the personal applicants as well as affidavits from Roger Hunka, Andrew J. Siggner and David A. Binder. Roger Hunka is the Director of Intergovernmental Affairs for the Maritime Aboriginal Peoples Council. Mr. Siggner is a demographer. His training is in sociology and demography.

He graduated from the University of Western Ontario with a B.A. in sociology in 1969, and with an M.A. in sociology with a speciality in demographics in 1971. He is a member of the Canadian Population Society and its former secretary-treasurer. Mr. Binder is a mathematical statistician.

He has a Ph.D. in mathematical statistics and a P.Stat. accreditation in mathematical statistics from the Statistical Society of Canada. [ 17 ] Prior to the hearing, the respondent moved to strike portions of each of the six affidavits filed by the applicants on the basis that the affidavits were ​largely composed of extrinsic evidence not before the statutory decision-maker​ and were not confined to the personal knowledge of the deponents, as required by Rule 81(1) of the Federal Courts Rules , SOR/98-106, but were ​full of opinions, conclusions, speculation and irrelevancies.​ The ultimate disposition of the motion was left by the case management Prothonotary to the applications judge. [ 18 ] The general rule in this Court is that affidavits are to be confined to the personal knowledge of the deponent.

Rule 81(1) of

the Federal Courts Rules provides that: 81.

(1) Affidavits shall beconfined to facts within thedeponent​s personal knowledgeexcept on motions, other thanmotions for

summary judgmentor

summary trial, in whichstatements as to the deponent​sbelief, with the grounds for it,may be included. 81.

(1) Les affidavits se limitentaux faits dont le déclarant a uneconnaissance personnelle, saufs​ils sont présentés à l​appui d​unerequête ​ autre qu​une requête enjugement

sommaire ou en procèssommaire ​ auquel cas ils peuventcontenir des déclarations fondéessur ce que le déclarant croit êtreles faits, avec motifs à l​appui. [19] The applicants submit that Rule 81(1) does not apply to the admissibility of constitutional or legislative evidence. They saythat Rule 81(1) reflects the general rule against hearsay but does not displace the common law exceptions to the rule: Canadian TireCorp. v P.S. Partsource Inc., 2001 FCA 8. Relying on Westergard-Thorpe v Canada (Attorney General), [1999] F.C.J. No. 721 (T.D.),at para. 3, they submit that there are only two limitations on the admissibility of extrinsic evidence in constitutional cases: (

i) evidencewhich is inherently unreliable or offends public policy and (ii) evidence used to aid in statutory construction. The applicants say that theevidence tendered is necessary and they point to the importance the Supreme Court of Canada has placed on ensuring that there is aproper factual foundation when one is challenging the validity of legislation on Charter grounds. In MacKay v Manitoba, (SCC), [1989] 2 S.C.R. 357, at paras. 8 and 9, the Court wrote that: Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society.

Forexample, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individualwill have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives ofCanadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courtshave every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases.

Therelevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinionas to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance tothe courts. Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitablyresult in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential toa proper consideration of Charter issues.

A respondent cannot, by simply consenting to dispense with the factual background, require orexpect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses ofenthusiastic counsel. [20] There is no question that a Charter challenge requires a proper factual foundation and I reject the submission of therespondent that the only materials properly before the Court in applications such as these are those that were before the decision-makerswhen the orders under review were made.

However, I agree with the respondent that many of the paragraphs of the affidavits of theapplicants​ affiants provide no factual information at all but rather consist of opinion and speculation. [21] The respondent submits that all or parts of the following paragraphs should be struck from the affidavits: a. Affidavit of Nash-McKinley: paragraphs 16, 19, 20, 21, 22, 23, 24; b. Affidavit of Conrad: paragraphs 19, 20, 21, 22, 23, 24; c. Affidavit of Gallant: paragraphs 19, 20, 21, 22, 23, 24; d.

Affidavit of Hunka: paragraphs 11, 12, 13, 15, 16, 17, 28, 29, 33, 40, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 61,62; e. Affidavit of Binder: paragraphs 13, 14, 15, 17, 18, 19, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39,40; and f. Affidavit of Siggner: paragraphs 7, 9, 14, 22, 23, 24, 25, 26, 27, 28, 58, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45,47, 48, 49, 50, 51. [22] The Federal Court of Appeal has recently confirmed the circumstances in which the Court ought to strike all or portions ofaffidavits.

In Canada (Attorney General) v Quadrini, 2010 FCA 47, at para 18, the Court wrote that: As a general rule, the affidavit must contain relevant information which would be of assistance to the Court in determining theapplication. As stated by our Court in Dwyvenbode v. Canada (Attorney General), 2009 FCA 120, the purpose of an affidavit is to

adduce facts relevant to the dispute without gloss or explanation. The Court may strike affidavits, or portions of them, where they areabusive or clearly irrelevant, where they contain opinion, argument or legal conclusions​. [Emphasis in the original]. [23] In general, factual evidence in constitutional cases consists of either adjudicative facts or legislative facts. Adjudicative factsserve as the foundation for facts that concern the parties, which, given their specificity, must be proved by admissible evidence.

Legislative facts demonstrate the purpose and the background of the legislation, including its social, economic, and cultural context, andare subject to less stringent evidentiary requirements: Danson v Ontario (Attorney General), (SCC), [1990] 2 S.C.R.1086. [24] Extrinsic evidence is admissible in constitutional cases because often it is the only way to address a constitutional issue,particularly when it concerns want of jurisdiction: see Gitxsan Treaty Society v Hospital Employees​ Union, (FCA),[2000] 1 F.C. 135 (C.A.) at para. 13. [25] Much of what is objected to by the respondent in the affidavits tendered by the applicants can be said to constitute legislativefacts because its purpose is to lend context to the constitutional claims.

In this regard, the applicants have tendered evidence that the2006 census data was used by the government and others in making decisions on services for aboriginal peoples, that programs andservices provided to aboriginal peoples through registered bands is often not available to those who live off-reserve, and that aboriginalpeoples are less likely to complete a voluntary NHS than a mandatory census. The personal applicants state in their affidavits that theseare their concerns. I find this to be unobjectionable, although it may be deserving of little weight.

The evidence of the two expertsoffered by the applicants generally addresses the possible impact of the changes in the methodology of the census and NHS compared tothe 2006 Census and the possible consequences of the shift to the NHS in place of the mandatory long-form census. I find neitherobjectionable ​ they arguably provide legislative facts necessary for the applicants​ constitutional challenge. However, there are occasionswhere the experts go beyond their expertise, become less than objective, and become too closely aligned with their clients​ interests.

Those paragraphs will be struck. [26] The statement that the funding received is inadequate to meet the needs of the off-reserve aboriginal peoples is irrelevant toany issue before the Court in these applications and accordingly paragraph 16 of the Nash-McKinley affidavit is struck. [27] Paragraphs 11, 12, 13, and 59 of the Hunka affidavit are statements of law and, while appropriate in a written submission bycounsel, are inappropriate in an affidavit, especially when there is no evidence that the affiant has any legal training.

Paragraphs 29, 33,and 35 of his affidavit are hearsay, being statements alleged to have been made by others, and they are struck. Paragraph 34 is struck asit purports to set out the reason for the resignation of the Chief Statistician. This is a matter that is not within the affiant​s personalknowledge and, in any event, is irrelevant to these applications. Paragraphs 43 to 58 speculate as to the consequences of the changesobjected to by the applicants; they constitute the affiant​s opinion.

No basis for these opinions is provided in the affidavit nor is there anyindication that the affiant is qualified as an expert on the subjects on which he states his opinion. These paragraphs are struck. [28] Paragraph 38 of the Siggner affidavit, commencing with the words ​in the hopes that ​​ to the end of the paragraph, andparagraph 39, are struck.

These passages speculate on the motives of the Government of Canada and provide a characterization of itsactions which is unwarranted, prejudicial, and beyond the expertise or knowledge of the affiant. [29] Paragraph 17 of the Binder affidavit is struck as it provides a legal conclusion that is beyond the expertise of the affiant. [30] Ultimately, given my disposition of this application and the reasons for my decision, the evidence filed by the applicants wasof marginal value and little weight was given to it. Issues [31] The issues raised by the applicants and respondent are the following: 1.

What is the appropriate standard of review? 2. Are the changes to the census contrary to the respondent​s constitutional obligations to aboriginal peoples pursuant to s. 91(24)of the Constitution Act, 1867 and s. 35 of the Constitution Act, 1982?

3. Do the changes to the census violate s. 15 of the Canadian Charter of Rights and Freedoms ? 4. Do the changes to the census violate the Canadian Human Rights Act ? 5. Do the changes to the census violate s. 9 of the Statistics Act ? 6. Do the changes to the census result in the respondent being unable to fulfill its duties under the Statistics Act ? 7. If there is a rights violation, what is the appropriate remedy?

Analysis Standard of Review [ 32 ] The respondent submits that in making the orders under review the Government of Canada is exercising powers of a legislative nature and accordingly its decisions are entitled to deference from the Court. It is further submitted that the Court should not investigate the motive which caused the Governor in Council to pass the Order in Council as this falls within the Crown prerogative. [ 33 ] I agree that the Court is not a forum to examine the motives of the Government as its motives are irrelevant to the issues before the Court.

However, there is no deference owed to the respondent when deciding whether or not the orders under review are constitutionally valid. Section 52(1) of the Constitution Act, 1982 , being

Schedule B to the Canada Act, 1982 ( U.K. ), 1982, c.11, provides that: 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. 52.

(1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit. The standard of review is therefore correctness. If the orders under review are inconsistent with the Constitution of Canada, then they must be declared to be of no force or effect. If they are not inconsistent with the Constitution, then the Court must not intervene.

Are the changes to the census contrary to the respondent​s constitutional obligations to aboriginal peoples pursuant to s. 91(24) of the Constitution Act, 1867 and s. 35 of the Constitution Act, 1982 ? [ 34 ] The applicants submit that the duties that the Crown owes to aboriginal peoples are derived from s. 91(24) of the Constitution Act, 1867 , which gives the federal government jurisdiction over ​Indians and lands reserved for Indians,​ and s. 35 of the Constitution Act, 1982 , which recognizes the ​existing aboriginal and treaty rights of the aboriginal peoples of Canada.​ The applicants say that included in these Crown duties is the ​honour of the Crown,​ as recognized by the Supreme Court in Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 , which requires the Crown to act honourably in its dealings with aboriginal peoples.

Finally, they submit that these Crown duties must be interpreted in light of the UN Declaration on the Rights of Indigenous Peoples , which was endorsed by the Government of Canada on November 12, 2010. [ 35 ] The applicants submit that the cancellation of the mandatory long-form census and its substitution with a voluntary NHS will violate the obligations owed by the Crown to aboriginal peoples. They submit that this change will compromise the quality, accuracy, reliability and comparability of data on aboriginal peoples, particularly off-reserve and non-status aboriginal peoples.

The applicants argue that census data is a key source of information used by the Government when designing programs and services to fulfill its constitutional duties to aboriginals. In short, the ultimate consequence of the changes, they assert, will be to compromise the programs and services available to aboriginal peoples and, most particularly, to those who live off-reserve. [ 36 ]

Section 35 of the Constitution Act, 1982 provides that:

(1) The existing aboriginaland treaty rights of the aboriginalpeoples of Canada are herebyrecognized and affirmed.

(2) In this Act, "aboriginalpeoples of Canada" includes theIndian, Inuit and Métis peoplesof Canada.

(3) For greater certainty, insubsection (1) "treaty rights"includes rights that now exist byway of land claims agreementsor may be so acquired.

(4) Notwithstanding any otherprovision of this Act, theaboriginal and treaty rightsreferred to in subsection (1) areguaranteed equally to male andfemale persons. 35.

(1) Les droits existants ​ancestraux ou issus de traités ​ despeuples autochtones du Canadasont reconnus et confirmés. (2) Dans la présente loi, «peuples autochtones du Canada »s'entend notamment des Indiens,des Inuit et des Métis du Canada.

(3) Il est entendu que sontcompris parmi les droits issus detraités, dont il est fait mention auparagraphe (1), les droitsexistants issus d'accords sur desrevendications territoriales ouceux susceptibles d'être ainsiacquis.

(4) Indépendamment de touteautre disposition de la présenteloi, les droits ​ ancestraux ou issusde traités ​ visés au paragraphe (1)sont garantis également auxpersonnes des deux sexes. [37] In order to demonstrate a violation of s. 35 of the Constitution Act, 1982, the applicants must demonstrate that there is anaboriginal or treaty right at stake. They have not done so. The applicants have not suggested that there is any treaty right at issue andthey have failed to point to a possible aboriginal right that has been infringed.

Instead, they rely on the general duty of the ​honour of theCrown​ to ground their claim that there has been a violation of a constitutional right. [38] The applicants submit that the Supreme Court in Haida Nation held that the honour of the Crown arises in all of the dealingsof the Government of Canada with Canada​s aboriginal peoples. In particular, they rely upon paragraphs 16 and 17 of the reasons: The government's duty to consult with aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.

Thehonour of the Crown is always at stake in its dealings with aboriginal peoples: see for example R. v. Badger, (SCC),[1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456. It is not a mere incantation, but rather acore precept that finds its application in concrete practices. The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect theunderlying realities from which it stems.

In all its dealings with aboriginal peoples, from the assertion of sovereignty to the resolution ofclaims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "thereconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown": Delgamuukw, supra, at para. 186, quotingVan der Peet, supra, at para. 31. [Emphasis added] [39] I am not convinced that the decision of the Supreme Court goes as far as the applicants submit.

In my view, the SupremeCourt​s decision, properly interpreted, does not assert that the honour of the Crown arises whenever the Crown takes an action that mayindirectly impact aboriginal peoples. Rather, in Haida Nation and other decisions, courts have observed that the honour of the Crownarises when there is a specific aboriginal interest or right at stake in the Crown​s dealing. In Haida Nation, the right or interest was theassertion of the Haida Nation that it had aboriginal title to all of the lands of the Haida Gwaii and the waters surrounding it.

In theBadger and Marshall cases referred to in the quote above, the individuals were asserting rights given to them through treaties enteredinto between the Crown and their aboriginal nations. This is evident, for example, in para. 41 of Badger where the Supreme Court states:

​ the honour of the Crown is always at stake in its dealing with Indian people.

Interpretations of treaties and statutory provisions whichhave an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is alwaysassumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. [Emphasis added] [40] In Haida Nation there was no proven aboriginal right but there was a claim to title supported by a good prima facie case thatwas found by the Supreme Court at para. 35 to be sufficient to engage the honour of the Crown and its duty to consult: But, when precisely does a duty to consult arise?

The foundation of the duty in the Crown's honour and the goal of reconciliation suggestthat the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title andcontemplates conduct that might adversely affect it​ [Emphasis added]. [41] In this case, the applicants have failed to establish any case for the existence of an aboriginal right or title that may beadversely affected by the Government​s actions regarding the 2011 Census.

Accordingly, I find that the honour of the Crown is notengaged. [42] Furthermore, I agree with the respondent that although s. 91(24) of the Constitution Act, 1867 assigns the Government ofCanada jurisdiction to legislate regarding ​Indians, and lands reserved for Indians,​ it does not oblige Canada to legislate on all issuesconcerning aboriginal peoples. In particular, it does not create a positive obligation on the Government of Canada to collect data aboutaboriginals in Canada at all, let alone in a specific and mandatory long-form census.

I concur with the views expressed by Justice Addyin Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development, [1987] F.C.J. No. 1005, at para54: ​ [T]he provisions of our Constitution are of no assistance to the plaintiffs on this issue. The Indian Act was passed pursuant to theexclusive jurisdiction to do so granted to the Parliament of Canada by subsection 91(24) of the Constitution Act 1867.

This does notcarry with it the legal obligation to legislate or to carry out programs for the benefit of Indians anymore than the existence of variousdisadvantaged groups in society creates a general legally enforceable duty on the part of governments to care for those groups althoughthere is of course a moral and political duty to do so in a democratic society where the welfare of the individual is regarded as paramount.

Do the changes to the census violate s. 15 of the Charter? [43] In R. v Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483, the Supreme Court rearticulated the test for a finding ofdiscrimination under s. 15 of the Charter as originally developed in Law Society of British Columbia v Andrews, (SCC),[1989] 1 S.C.R. 143 and Law v Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497. Atpara. 17 of Kapp the Court stated the test as follows: ​

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?​ [44] The applicants correctly note that both aboriginality and aboriginality-residence have been recognized by the Supreme Courtas prohibited grounds of discrimination: Corbiere v Canada (Minister of Indian and Northern Affairs), (SCC), [1999]2 S.C.R. 203. They submit that the changes to the census will result in discrimination on both of these grounds.

They say that thechanges will result in differential and disadvantageous treatment of aboriginal peoples as compared to non-aboriginal peoples becausethe changes will cause an undercount of, and the collection of less accurate data about, the aboriginal population, which will deny usersof the data the benefit of accurate, reliable, and comparable data about this group. [45] The applicants claim the problem will be particularly acute for the off-reserve and non-status aboriginal population becausethe off-reserve population is geographically dispersed and it is difficult to locate, identify, and obtain data about this population withoutthe mandatory long-form census and the Aboriginal Peoples Survey, which is based on the census results.

They say that because thisdata is used to formulate and implement policies, programs, and services for aboriginal peoples, the decrease in the quality of data willlikely impact the quality and availability of these programs and services, resulting in unequal treatment vis-à-vis the non-aboriginalpopulation, with an especially egregious impact on off-reserve aboriginals. The applicants essentially allege discrimination on threeintertwined but distinct grounds: aboriginality, not having Indian status, and off-reserve residence.

The use of multiple comparatorgroups has been recognized as appropriate where an equality claimant alleges discrimination based on different personal characteristics:Falkiner v Ontario (Ministry of Community and Social Services, Income Maintenance Branch) (2002), (ON CA), 59O.R. (3d) 481 (C.A.). Accordingly, here, the appropriate comparator groups would be non-aboriginals, status Indians, and aboriginalsliving on-reserve.

[46] In my view, the applicants have failed to establish that the legislative provisions at issue create a distinction based onaboriginality or aboriginality-residence. The changes to the census do not draw an explicit distinction on any of the alleged grounds ofdiscrimination; what the applicants allege here is, in essence, adverse effect discrimination.

Adverse effect discrimination arises where alaw which is on its face neutral, as the changes to the census are here, has a discriminatory effect. [47] The discrimination the applicants allege they would suffer under the new census is the denial of ​equal benefit of the law​ unders. 15, specifically the benefit of access to accurate data about their constituents. The problem with this submission is that any decline indata quality that might be occasioned by the changes to the census would not differentially affect the claimant groups. The allegeddecline in data quality would affect all Canadians.

If, as the affidavit evidence suggests, a number of social groups are less likely torespond to a voluntary survey, the reliability of the data as a whole, not just the data relating to aboriginals, would be impeached.

Furthermore, the applicants​ submission that data regarding aboriginal peoples will be skewed because aboriginals who respond to theNHS will tend to be educated, literate, of a high socioeconomic status, older, and less mobile does not assist them in establishing adistinction based on aboriginal identity or aboriginality-residence, since these factors would equally tend to influence response ratesacross the entire Canadian population. [48] Second, any potential adverse effect on aboriginal response rates stemming from the decision to discontinue the mandatorylong-form census and replace it with the voluntary NHS would not be the result of the inherent characteristics of the claimant groups.

Itwould be the result of individual choice. Although this choice may be influenced by social factors affecting aboriginals, lower responserates to surveys is not a true characteristic of aboriginals, non-status aboriginals, or aboriginals living off-reserve. The doctrine ofadverse effect discrimination is intended to ensure the equality guarantee in s. 15 of the Charter results in substantive equality byrecognizing that certain groups​ characteristics may result in a distinction even when no such distinction is explicitly drawn by the law inquestion.

Here, the government​s action simply does not create a distinction. [49] The Supreme Court of Canada first addressed the concept of adverse effect discrimination in Ontario (Human RightsCommission) v Simpsons Sears Ltd., (SCC), [1985] 2 S.C.R. 536, where Justice McIntyre, in the context of human rightslegislation, wrote, at para. 18: A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effectdiscrimination in connection with employment.

Direct discrimination occurs in this connection where an employer adopts a practice orrule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here."There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the otherhand, there is the concept of adverse effect discrimination.

It arises where an employer for genuine business reasons adopts a rule orstandard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon aprohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee orgroup, obligations, penalties, or restrictive conditions not imposed on other members of the work force. [Emphasis added] [50] In Egan v Canada, (SCC), [1995] 2 S.C.R. 513, Justice Cory described adverse effect discrimination asfollows at para. 138: Direct discrimination involves a law, rule or practice which on its face discriminates on a prohibited ground.

Adverse effectdiscrimination occurs when a law, rule or practice is facially neutral but has a disproportionate impact on a group because of a particularcharacteristic of that group. [Emphasis added] [51] In Eaton v Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, at para. 67, the Supreme Courtwrote that: The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristicsbased on stereotypical attitudes relating to immutable conditions such as race or sex. ​ The discrimination inquiry which uses ​theattribution of stereotypical characteristics​ reasoning as commonly understood is simply inappropriate here.

It may be seen rather as acase of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces theindividual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonableaccommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.

[Emphasis added] [52] This understanding of the indicia of adverse effect discrimination was affirmed in Law at para. 36: In such cases, it is the legislation​s failure to take into account the true characteristics of a disadvantaged person or group within Canadiansociety (i.e., by treating all persons in a formally identical manner), and not the express drawing of a distinction, which triggers s. 15(1). [Emphasis added]. [53] The tendency of a certain group not to respond to a voluntary survey cannot be said to be a ​true characteristic​ within themeaning ascribed to that term by the jurisprudence.

The applicants have made no allegation that there is any characteristic ofaboriginals, non-status aboriginals, or off-reserve aboriginals which would impede their completion of a voluntary survey, and that assuch there has been no failure on the part of the respondent to recognize and accommodate the claimant groups​ characteristics. What theapplicants argue for is a positive duty on the government to compel participation in the census in order to compensate for an allegedtendency of certain groups not to respond to a voluntary survey.

This is a creative submission but it must fail because the adverse effectanalysis still requires a distinction in the way the claimant group is treated.

As explained by Justice Fichaud, writing for the Nova ScotiaCourt of Appeal in Boulter v Nova Scotia Power Inc., 2009 NSCA 17, at para. 77: ​ it remains necessary, even for adverse effect discrimination, that the claimants' group or subgroup be treated differently than thecomparator group, whose members do not have the protected characteristic but are otherwise similar to those in the claimant group orsubgroup. [54] Justice Fichaud​s pithy description, at para. 81, of the cases where adverse effect discrimination has been established, Eldridgev British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624 and Vriend v Alberta, (SCC),[1998] 1 S.C.R. 493, serves to further clarify why the applicants here are not victims of adverse effect discrimination: In Eldridge the deaf had no translation and those with hearing did not need translation.

In Vriend homosexuals had no human rightsprotection and heterosexuals did not need protection. These were adverse effect distinctions, on protected grounds, between the claimantsand comparator groups of persons without the protected trait but otherwise similar to the claimants. [Emphasis added] [55] In Eldridge, the claimants were treated differently because they could not access medical care. In Vriend, the claimants weretreated differently because they were not granted human rights protection.

Here the claimant groups are able to participate in thevoluntary survey, to have their identity reflected in the statistics, and to use the ultimate results. Any decrease in response rates amongaboriginals, would not be the result of any distinction or differential treatment, and accordingly would not engage s. 15 of the Charter. The alleged tendency not to complete a voluntary survey is not a characteristic of the claimant groups which prevents them fromobtaining equal benefit of the law; rather, it is a behaviour existing independently of the changes to the census procedure.

The applicantsthemselves submit that the response rates will be determined by factors such as education, literacy, socioeconomic status, and mobility. These factors, and the claimant groups​ alleged lower response rates generally, are not effects caused by the changes to the census, theyare independent social realities. Lower response rates are not the result of the applicants being treated differently.

As Justice Iacobuccistated in Symes v Canada, (SCC), [1993] 4 S.C.R. 695, at para. 134: If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved.

We musttake care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those socialcircumstances which exist independently of such a provision. [56] The above statement was further explained in Eldridge, above, at para. 76, where the Court wrote that: While this statement can be interpreted as supporting the notion that, in providing a benefit, the state is not required to eliminate any pre-existing ​social​ disadvantage, it should be remembered that it was made in the context of determining whether the legislation made adistinction based on an enumerated or analogous ground. ​

[ 57 ] This case, as in Symes , concerns determining whether the impugned law draws a distinction based on enumerated grounds. Symes , as further explained in Eldridge , provides that in providing a benefit, here a census, the state is not required to eliminate pre- existing social disadvantage. The applicants​ failure to demonstrate that the changes to the census create a distinction means that they have not met the first branch of the test for discrimination.

Changes in the Wording of the Questions [ 58 ] Although the above comments regarding the honour of the Crown and the lack of a distinction necessary to found a s. 15 complaint effectively dispose of the applicants​ claims that the change in the wording of the aboriginal questions adversely affects them, as much of the argument was devoted to this issue, a few comments are warranted. [ 59 ] For ease of reference, I set out again the changes to the questions: The Aboriginal Identity Question 2006 Census: ​Is this person an aboriginal person, that is, North American Indian, Métis or Inuit (Eskimo)?​ NHS: ​Is this person an aboriginal person, that is, First Nations (North American Indian), Métis or Inuk (Inuit)?​ The First Nation/Indian Band Question 2006 Census: Is this person a member of an Indian band/First Nation?

NHS: Is this person a member of a First Nation/Indian Band? The Registered or Treaty Indian Question 2006 Census: Is this person a Treaty Indian or a Registered Indian as defined by the Indian Act of Canada ? NHS: Is this person a Status Indian (Registered or Treaty Indian as defined in the Indian Act of Canada )? [ 60 ] The applicants​ concern with the change of wording in the Aboriginal Identity Question is that the terms ​North American Indian​ and ​First Nation (North American Indian)​ will not necessarily be seen to mean the same thing.

They submit that the term ​First Nation​ is primarily used to describe Indian bands registered under the Indian Act , whereas the term ​North American Indian​ would include non-status Indians as well as those residing off-reserve. Accordingly, they submit that the NHS is likely to undercount the aboriginal population as off-reserve and non-status aboriginals are likely to respond negatively to the question.

They submit that the wording of the First Nation/Indian Band Question equates the terms ​First Nation​ and ​Indian Band​ and this question confirms their view that aboriginals will under-identify in response to the Aboriginal Identity Question. [ 61 ] This view must be balanced against the evidence offered by the respondent. Jane Bedets, the Director of the Social and Aboriginal Statistics Division of Statistics Canada, attests that ​extensive qualitative testing​ was conducted on questions proposed for inclusion in the 2011 NHS.

Specifically, with respect to the Aboriginal Identity Question, she states that testing occurred between October 9, 2007 and June 5, 2008, and that this testing ​included about 650 aboriginal and non-aboriginal participants in 23 locations across Canada .​ She attests that: [R]esults for the Aboriginal Identity question recommend the use of the terms ​First Nations (North American Indian)​, ​Métis​ and ​Inuk (Inuit)​ in the question and response categories. It was also recommended that the instruction ​First Nations (North American Indian) comprises Status and Non-status Indians​ be included.

A fourth phase of qualitative testing for the aboriginal identification questions took place between November 3, 2008 to March 30, 2009 in 22 locations across Canada to test the terminology changes for populations living in remote and on-reserve areas. This testing included about 300 aboriginal people.

The results of this testing showed that a majority of participants preferred the use of the term ​First Nations (North American Indian)​ andthe instruction that ​First Nations (North American Indian) includes Status and Non-Status Indians. [62] The result of the objective testing performed by Statistics Canada must be preferred over the subjective impression of theapplicants​ witnesses. In any event, as was noted by the respondent, whether there is an undercount as a consequence of the wordingchange will only be known after the NHS has been conducted.

If it turns out that the change in the wording of the questions results indata that is statistically inaccurate, there is nothing that prevents the Government of Canada from discarding it or conducting anothersurvey with different questions. [63] The applicants object to the use of the phrase ​Treaty Indian​ in the Registered or Treaty Indian Question. They say that it isnot a defined word and that the question may be confusing and thus result in a skewed response rate.

I note that the same term was usedin the 2006 Census and there is no evidence before the Court that its inclusion then resulted in any deviation from the expected response. [64] One can always parse questions and challenge the use of a particular term or phrase and wonder whether a better term orphrase could have been selected. Given that Statistics Canada is in the business of conducting the census and surveys it must beassumed, absent compelling evidence to the contrary, that they do their job with as much accuracy as possible.

In short, the Court shouldpresume that Statistics Canada prepared the census and survey questions appropriately, and the burden is on those who allege otherwiseto prove so with objective evidence. None was provided by the applicants and I dismiss their claims that the wording of the questionswill result in confusion and under-reporting by the aboriginal peoples of Canada. Do the changes violate the Canadian Human Rights Act? [65] The respondent submits that allegations that the Canadian Human Rights Act, R.S.C. 1985, c.

H-6, has been breached fallwithin the exclusive jurisdiction of the Canadian Human Rights Commission and Tribunal, and submit that judicial review cannotprecede the process prescribed under that Act. [66]

Section 40 of the Canadian Human Rights Act provides that: 40.

(1) Subject to subsections (5)and (7), any individual or groupof individuals having reasonablegrounds for believing that aperson is engaging or hasengaged in a discriminatorypractice may file with theCommission a complaint in aform acceptable to theCommission. 40.

(1) Sous réserve desparagraphes (5) et (7), unindividu ou un groupe d​individusayant des motifs raisonnables decroire qu​une personne a commisun acte discriminatoire peutdéposer une plainte devant laCommission en la formeacceptable pour cette dernière. [67] Judicial review is a discretionary remedy and where an adequate alternative remedy exists, the Court may decline to exerciseits jurisdiction: Froom v Canada (Minister of Justice), 2004 FCA 352, at para. 12, McMaster v Canada (Attorney General), 2008 FC647, at para. 23, and Giesbrecht v Canada, (FC), [1998] F.C.J.

No. 621 (T.D.), at para. 13. [68] The Canadian Human Rights Commission is certainly able to deal with complaints relating to alleged discriminatory practicesunder its Act; it does so on a daily basis.

Therefore, there is an adequate alternative remedy available to the applicants with respect totheir alleged violations of that Act and, in my view, even if the Court has jurisdiction to issue a declaration that there is a breach of theCanadian Human Rights Act, the Court should decline to assume jurisdiction, absent an extraordinary and overriding circumstance. [69] I am not satisfied that there is any extraordinary circumstance in the facts before me.

Given the reasons above, I am not evensatisfied that the applicants have established that the changes of which they complain establish a strong prima facie case of a breach ofthat Act. Accordingly, I will not exercise my discretion to consider issuing any declaration involving the Canadian Human Rights Act. Do the changes to the census violate s. 9 of the Statistics Act?

[70] Section 9(1) of the Statistics Act provides as follows: 9.

(1) Neither the Governor inCouncil nor the Minister shall, inthe execution of the powersconferred by this Act,discriminate between individualsor companies to the prejudice ofthose individuals or companies. 9.

(1) Ni le gouverneur en conseilni le ministre ne peuvent, dansl​exercice des pouvoirs conféréspar la présente loi, établir dedistinction entre des particuliersou des compagnies au préjudiced​un ou plusieurs de cesparticuliers ou compagnies. [71] The applicants acknowledge that there is little jurisprudential assistance as to the

interpretation and application of thatprovision. They point only to Re Armco Canada Ltd. and Minister of Department of Consumer and Corporate Affairs (1975), (ON CA), 8 O.R. (2d) 741 (C.A.), as a decision that references the provision at issue. That decision related to a motion foran exemption from the disclosure requirement in s. 129.3 of the Canada Corporations Act, R.S.C. 1970, c. C-32.

Justice Kelly grantedthe motion, in part, and in so doing, in obiter, noted the provision of the Statistics Act relied on by the applicants and stated: From this I would conclude that it is the intention of Parliament that the accumulation of statistical information shall not result indiscrimination to the prejudice of anyone. I would feel that, having so provided in the Statistics Act, it would not intend that the [CanadaCorporations] Act be so interpreted as to accomplish the discrimination it sought to avoid and tear away the secrecy attached tocompliance with the Statistics Act.

The use of the provisions of the [Canada Corporations] Act to acquire statistical information wouldhave this effect and to me indicates that it was not the intention of Parliament that the provisions of the Act could be used as a mediumfor the collation of material having a purely statistical value. [72] The applicants submit that the analysis for discrimination under s. 9(1) of the Statistics Act is substantially similar to thatunder s. 5 of the Canadian Human Rights Act and that the proposed changes discriminate between aboriginals and non-aboriginals andbetween on-reserve and off-reserve aboriginals. [73] The respondent notes that the applicants​ allegations with regards to s. 9(1) of the Statistics Act are virtually the same as thosemade in the context of its Charter challenge, and that in the absence of jurisprudence regarding discrimination under s. 9(1), it isappropriate to turn to the s. 15 Charter definition of discrimination in Kapp to maintain consistency in the

interpretation of the law. [74] There is no principled basis for the respondent​s argument that an analysis of discrimination under s. 9(1) of the Statistics Actshould import the s. 15 Charter definition of discrimination in order to maintain consistency. Following the definition of discriminationin the Canadian Human Rights Act and the associated jurisprudence, as suggested by the applicants, would be equally effective inmaintaining consistency.

Given that the Canadian Human Rights Act and the Statistics Act are both pieces of legislation rather thanconstitutional documents, it would seem more consistent not to impose the additional constitutional burden of demonstrating that thedisadvantage perpetuates prejudice or stereotyping under that second branch of the Kapp test. [75] Even with this lower standard the applicants have failed to demonstrate a distinction and hence discrimination, for the samereasons as they fail to meet the first branch of the Kapp test.

Section 5 of the Canadian Human Rights Act provides that: 5. It is a discriminatory practicein the provision of goods,services, facilities oraccommodation customarilyavailable to the general public (

a) to deny, or to deny access to,any such good, service, facility oraccommodation to anyindividual, or (

b) to differentiate adversely inrelation to any individual, on a prohibited ground ofdiscrimination. 5. Constitue un actediscriminatoire, s​il est fondé surun motif de distinction illicite, lefait, pour le fournisseur de biens,de services, d​installations ou demoyens d​hébergement destinésau public :

a) d​en priver un individu;

b) de le défavoriser à l​occasionde leur fourniture.

[ 76 ] There is simply no basis for an argument that there has been any denial or differentiation in the 2011 census or the NHS on the basis of aboriginal identity. Accordingly, even on the applicants​

interpretation, there is no violation of s. 9(1) of the Statistics Act . Do the changes result in the respondent being unable to fulfill its duties under the Statistics Act ? [ 77 ] The applicants submit that the respondent has duties under the Statistics Act , particularly ss. 3 and 22 , and that the proposed NHS fails to meet the requirements of these sections as it fails to provide accurate, reliable and comparable statistical data for many of the matters provided for in these sections. In their Notice of Application they also allege that this constitutes a refusal to exercise jurisdiction.

Sections 3 and 22 of the Statistics Act provides as follows: 3. There shall continue to be a statistics bureau under the Minister, to be known as Statistics Canada, the duties of which are (

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. ... 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 3. Est maintenu, sous l​autorité du ministre, un bureau de la statistique appelé Statistique Canada, dont les fonctions sont les suivantes :

a) recueillir, compiler, analyser, dépouiller et publier des renseignements statistiques sur les activités commerciales, industrielles, financières, sociales, économiques et générales de la population et sur l​état de celle-ci;

b) collaborer avec les ministères à la collecte, à la compilation et à la publication de renseignements statistiques, y compris les statistiques qui découlent des activités de ces ministères;

c) recenser la population du Canada et faire le recensement agricole du Canada de la manière prévue à la présente loi;

d) veiller à prévenir le double emploi dans la collecte des renseignements par les ministères;

e) en général, favoriser et mettre au point des statistiques sociales et économiques intégrées concernant l​ensemble du Canada et chacune des provinces, et coordonner des projets pour l​intégration de telles statistiques. 22. Sans pour autant restreindre les fonctions attribuées à Statistique Canada par l​

article 3 ni porter atteinte à ses pouvoirs ou fonctions concernant des statistiques déterminées qui peuvent être par ailleurs autorisées ou exigées en vertu de la présente loi, le statisticien en chef doit, sous la direction du ministre, recueillir, compiler, analyser, dépouiller et publier, en ce qui concerne le Canada, des statistiques sur tout ou

partie des

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. sujets suivants :

a) population;

b) agriculture;

c) santé et protection sociale;

d) application des lois, administration de la justice et services correctionnels;

e) finances publiques, industrielles et commerciales;

f) immigration et émigration;

g) éducation;

h) travail et emploi;

i) commerce extérieur;

j) prix et coût de la vie;

k) forêts, pêches et piégeage;

l) mines, carrières et puits;

m) fabrication;

n) construction;

o) transport, entreposage et communications;

p) services d​électricité, de gaz et d​eau;

q) commerce de gros et de détail;

r) finance, assurance et immeuble;

s) administration publique;

t) services communautaires, commerciaux, industriels et personnels;

u) tous autres sujets prescrits par le ministre ou par le gouverneur en conseil. [ 78 ] The respondent submits that s. 3 of the Statistics Act does not require Statistics Canada to obtain data in any specific way and notes that no methodology is mandated as to how Statistics Canada is to ​promote and develop integrated social and economic statistics.​ Similarly, the respondent says that s. 22 of the Statistics Act does not prescribe any specific methodology and, in any case, does not

mention the aboriginal population. The respondent also notes that s. 8 of the Statistics Act authorizes the collection of information on a voluntary basis, other than for a census of population or agriculture. [ 79 ] The respondent argues that these sections do not create a legal duty to conduct a specific type of survey or mandate that there be specific content in the survey, and submits that there is no merit to the applicants​ allegation that Statistics Canada is refusing to exercise any jurisdiction or duty.

The respondent says Statistics Canada is discharging all its statutory obligations by conducting the 2011 mandatory short-form census and the voluntary NHS. [ 80 ] I agree with the respondent. Neither

section of the Statistics Act prescribes any particular methodology for collecting statistics and the applicants have not advanced any cogent evidence that the changes amount to a refusal to exercise jurisdiction. I find that there is simply no basis for the suggestion that the planned 2011 Census fails to meet the requirements of the Act. I note that the questions to be asked in the 2011 Census questionnaire will capture most of the information that was captured in the 1871 census of Canada .

Statistics Canada will perform its duties under s. 3 of its Act through the mandatory short-form census and the NHS. [ 81 ] The parties agreed that the successful party should be awarded its costs, inclusive of any costs ordered to date, fixed at $3,700.00. JUDGMENT THIS COURT​S JUDGMENT is that these applications are dismissed and the respondent is awarded its costs which are fixed at $3,700.00, inclusive of fees, disbursements and taxes. "Russel W. Zinn" Judge APPENDIX ​A​ Census 2006 - 2B (Long Form) Recensement 2006 - 2B (Formulaire long) 17.

What were the ethnic or cultural origins of this person's ancestors ? An ancestor is usually more distant than a grandparent. For example, Canadian, English, French, Chinese, Italian, German, Scottish, East Indian, Irish, Cree, Mi'kmaq (Micmac), Métis, Inuit (Eskimo), Ukrainian, Dutch, Filipino, Polish, Portuguese, Jewish, Greek, Jamaican, Vietnamese, Lebanese, Chilean, Salvadorean, Somali, etc. Specify as many origins as applicable using capital letters . ______________________________ ______________________________ ______________________________ ______________________________ 17.

Quelles étaient les origines ethniques ou culturelles des ancêtres de cette personne?

Habituellement, un ancêtre est plus éloigné qu'un grand-parent. Par exemple, canadien, anglais, français, chinois, italien, allemand, écossais, indien de l'Inde, irlandais, cri, mi'kmaq (micmac), métis, inuit (esquimau), ukrainien, hollandais, philippin, polonais, portugais, juif, grec, jamaïquain, vietnamien, libanais, chilien, salvadorien, somalien, etc. Précisez toutes les origines qui s'appliquent en lettres majuscules . ______________________________ ______________________________ ______________________________ ______________________________ 18. Is this person an Aboriginal person, that is, North American Indian, Métis or Inuit (Eskimo)? If "Yes", mark the circle(

s) that best describe(

s) this person now. No Continue with the next question Yes, North American Indian Yes, Métis Go to Question 20 Yes, Inuit (Eskimo) 18. Cette personne est-elle un Autochtone, c'est-à-dire un Indien de l​Amérique du Nord, un Métis ou un Inuit (Esquimau)? Si «Oui», cochez le ou les cercles qui décrivent le mieux cette personne maintenant. Non Continuez à la question suivante Oui, Indien de l​Amérique du Nord Oui, Métis Passez à la question 20 Oui, Inuit (Esquimau) 20. Is this person a member of an Indian band/First Nation?

No Yes, member of an Indian band/First Nation Specify Indian band/First Nation (for example, Musqueam) ______________________________ 20. Cette personne appartient-elle à une bande indienne ou à une Première nation? Non

Oui, appartient à une bande indienne ou à une Première nation Précisez la bande indienne ou la Première nation (p. ex., Musqueam) ______________________________ 21. Is this person a Treaty Indian or a Registered Indian as defined by the Indian Act of Canada ? No Yes, Treaty Indian or Registered Indian 21. Cette personne est-elle un Indien des traités ou un Indien inscrit aux termes de la

Loi sur les Indiens du Canada? Non Oui, Indien des traités ou Indien inscrit 2011 National Household Survey Questions Questions de l'Enquête nationale auprès des ménages de 2011 1 7 . What were the ethnic or cultural origins of this person's ancestors ? An ancestor is usually more distant than a grandparent. For example, Canadian, English, French, Chinese, East Indian, Italian, German, Scottish, Irish, Cree, Mi'kmaq, Salish, Métis, Inuit, Filipino, Dutch, Ukrainian, Polish, Portuguese, Greek, Korean, Vietnamese, Jamaican, Jewish, Lebanese, Salvadorean, Somali, Colombian, etc.

Specify as many origins as applicable using capital letters. __________________ __________________ __________________ __________________ 17. Quelles étaient les origines ethniques ou culturelles des ancêtres de cette personne? Habituellement, un ancêtre est plus éloigné que les grands-parents. Par exemple, canadien, anglais, français, chinois, indien de l​Inde, italien, allemand, écossais, irlandais, cri, mi​kmaq, salish, métis, inuit, philippin, hollandais, ukrainien, polonais, portugais, grec, coréen, vietnamien, jamaïquain, juif, libanais, salvadorien, somalien, colombien, etc.

Précisez toutes les origines qui s​appliquent en lettres majuscules . __________________

__________________ __________________ __________________ _______________________________________________________________________________ 18. Is this person an Aboriginal person, that is, First Nations (North American Indian), Métis or Inuk (Inuit)? Note: First Nations (North American Indian) includes Status and Non-Status Indians. If "Yes", mark the circle(

s) that best describe(

s) this person now. No, not an Aboriginal person → Continue with the next question Yes, First Nations (North American Indian) → Go to Question 20 Yes, Métis → Go to Question 20 Yes, Inuk (Inuit) → Go to Question 20 18. Cette personne est-elle un Autochtone, c​est-à-dire Première Nation (Indien de l​Amérique du Nord), Métis ou Inuk (Inuit)? Nota : Première Nation (Indien de l​Amérique du Nord) comprend les Indiens avec statut et les Indiens sans statut. Si « Oui », cochez le ou les cercles qui décrivent le mieux cette personne maintenant.

Non, pas un Autochtone → Continuez à la question suivante Oui, Première Nation (Indien de l​Amérique du Nord) → Passez à la question 20 Oui, Métis → Passez à la question 20 Oui, Inuk (Inuit) → Passez à la question 20 _______________________________________________________________________________ 20. Is this person a Status Indian (Registered or Treaty Indian as defined by the Indian Act of Canada )? No Yes, Status Indian (Registered or Treaty) 20. Cette personne est-elle un Indien avec statut (Indien inscrit ou des traités aux termes de la

Loi sur les Indiens du Canada)? Non Oui, Indien avec statut (Indien inscrit ou des traités) _______________________________________________________________________________ 21. Is this person a member of a First Nation/Indian band? If "Yes", which First Nation/Indian band? For example, Musqueam Indian Band, Sturgeon Lake First Nation, Atikamekw of Manawan. No Yes, member of a First Nation/Indian band Specify name of First Nation/Indian band

____________________________________ ____________________________________ 21. Cette personne est-elle membre d​une Première Nation/bande indienne? Si « Oui » de quelle Première Nation/bande indienne? Par exemple, Atikamekw de Manawan, Première Nation de Sturgeon Lake, bande indienne Musqueam.

Non Oui, membre d?une Première Nation/bande indienne Précisez la Première Nation/bande indienne. __________________ __________________ _______________________________________________________________________________ FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1375-10 and T-1494-10 STYLE OF CAUSE: NATIVE COUNCIL OF NOVA SCOTIA ET AL v. THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: December 13, 2010 REASONS FOR JUDGMENT AND JUDGMENT: ZINN J. DATED: January 25, 2011

APPEARANCES : Ann E. Smith and Derek A. Simon FOR THE APPLICANTS M. Kathleen McManus and Melissa R. Chan FOR THE RESPONDENT SOLICITORS OF RECORD : BURCHELLS LLP Barristers & Solicitors Halifax, Nova Scotia FOR THE APPLICANTS MYLES J. KIRVAN Deputy Attorney General of Canada Halifax, Nova Scotia FOR THE RESPONDENT