Long Form Census Cases

I came across R. v. Finley, 2011 SKPC 16 (CanLII) and it struck me as extemely interesting given the brouhaha over the long form census.

On January 13 , 2011 Whelan, J. of the Provincial Court of Saskatchewan decided:

[1] Ms. Finley, the Defendant/Applicant, was charged pursuant to s. 31(b) of the Statistics Act for failing to complete and submit the 2006 Long Form Population Census. Section 31 imposes, upon conviction, maximum penalties of a fine, not exceeding five hundred dollars, or imprisonment for a term not exceeding three months or both. She did not dispute the factual underpinnings of the Crown’s case. Rather she sought relief having regard to sections 8 and 24(1) of the Charter, on the basis that s. 31, insofar as it compels the provision of personal information, is an interference with a reasonable expectation of privacy and is therefore unconstitutional. The burden of proof, on a Charter application, on a balance of probabilities, lay with the Defendant/Applicant.

[2] The Crown argued: that s. 8 of the Charter is not engaged having regard to all of the circumstances. Should the Court find that it is engaged and that there is a breach for which a remedy is appropriate, the Crown maintained that the appropriate remedy would be to dismiss the charge pursuant to s. 52 of the Charter as no one may be found guilty of an unconstitutional offence.

[3] For the reasons elaborated upon below, I found that the Defendant/Applicant did not meet the burden of proof on the Charter application. While I found that s. 31 of the Statistics Act was engaged by s. 8 of the Charter, I found that there was no breach and in any event that the search was carried out in a reasonable fashion. Accordingly, the application is dismissed and I find Ms. Finley guilty of the offence.

The case goes into significant detail on the reasons that the long form census is necessary to Canadians.

A recent Federal Court of Canada decision, Native Council of Nova Scotia v. Canada (Attorney General), 2011 FC 72 (CanLII), also looked at the long form census.

On January 25, 2011, Zinn, J dismissed the Native Council of Nova Scotia’s application 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.

The council and intervenors wanted to ensure that questions about aboriginal peoples were not eliminated from the census. Zinn found that the Statistics Act did not prescribe a methodology for the census.

Both decisions are very interesting reading. Have we seen the true end of the mandatory long form Census?

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