IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Karen Stegenga is charged under s. 31(b) of the Statistics Act with refusing to fill in the Canadian 2011 Census of Population form and return it. S. 31 provides the following:

[2]         Ms. Stegenga admits that she refused to complete the census form. She says she refused for the following reasons:

[3]         Ms. Stegenga asserts that s. 31’s compulsion to complete the census form violates her rights to freedom of conscience and freedom of expression under ss. 2(a) and (b) of the Canadian Charter of Rights and Freedoms. She seeks a judicial stay of proceedings, or as Crown counsel, Ms. Allen, put it, a constitutional exemption from compliance with s. 31.

[4]         In deciding this application, I have considered the following case law: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; R. v. Babos, 2014 SCC 16; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284; Syndicat Northcrest v. Amselem, 2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551; Little v. R., 2009 NBCA 53; Petrini v. Canada, [1994] F.J.C. No. 1451 (QL); R. v. Churnin (OCJ),(unreported), Queen Street West Registry, Toronto, January 22, 2014; and R. v. Tobias (OCJ), (unreported), Old City Hall Registry, Toronto, October 9, 2013.

[5]         Some of those cases reveal that other judges across Canada have considered applications for similar Charter relief from prosecution under s. 31 and have reached consistent conclusions. In R. v. Churnin, Madame Justice Mocha sets out those conclusions clearly, and I adopt her reasons. Because the arguments have been thoroughly analysed elsewhere, I will simply summarize the jurisprudence briefly as it applies to Ms. Stegenga.

[6]         Ms. Stegenga’s decade long commitment to peace and democracy is a matter of conscience protected by s. 2(a) of the Charter. However, to establish infringement of this right, Ms. Stegenga would have to demonstrate that s. 31 interferes in a way that is more than trivial with her ability to act in accordance with her belief. She is not able to do this. Neither the purpose nor the effect of s. 31 interferes with her beliefs. She would not enrich Lockheed Martin if she complied with the Statistics Act. Nor would she be collaborating with the company by filling out a census form. There is no rational connection at all between s. 31’s requirement and her commitment to peace and integrity, and the connection she postulates is far too remote to infringe her freedom of conscience and violate s. 2(a).

[7]         There are limitations on the right to act on one’s beliefs, opinions and conscience described by the Supreme Court of Canada in R. v. Big M. One’s actions must not injure others or violate their rights; one’s actions must also not violate constitutional laws. Ms. Stegenga does not argue that s. 31 is an unconstitutional law. As Crown counsel in R. v. Tobias submitted:

[8]         In R. v. Irwin Toy, the Supreme Court of Canada stated that freedom of expression was entrenched in the Charter in order to ensure that everyone can express their thoughts, opinions and beliefs, however unpopular. Requiring Ms. Stegenga to fill out a census form does not infringe her right to freedom of expression under s. 2(b) of the Charter. Neither the purpose nor the effect of s. 31 deprives her of the ability to speak her mind about Lockheed Martin and the government’s action in contracting with that company. Filling out the form cannot rationally be viewed as an expression of support for Lockheed Martin or the federal government. Nor can the requirement to fill out the census form be considered “forced expression” as that term is used in law. Again, there is no nexus or connection between Ms. Stegenga’s freedom of expression of her beliefs and the legal requirement to complete the census.

[9]         Unlike the issues involving ss. 2(a) and (b) of the Charter, this issue was not considered in R. v. Churnin or R. v. Tobias.

[10]      In R. v. Tobias Yves Beland, Director of Census Operations Division of Statistics Canada testified that Lockheed Martin’s role in the 2006 census was reduced from its initial scope because some Canadians, including Members of Parliament, were concerned regarding the Patriots Act. The corporation’s role was further reduced to providing technical solutions to fine-tune the system for the 2011 census, and Lockheed Martin will be “out of the picture totally” for the next census. The Crown in this case has admitted these facts.

[11]      Ms. Stegenga argues that it is wrong for the federal government to prosecute her when it appears to have accepted the pressure exerted by Canadians to stop dealing with Lockheed Martin. She points to Canadians’ letters and emails to government, discussions on the internet, and refusals to complete the census as examples of this pressure.

[12]      Ms. Stegenga acknowledges that she is making moral and ethical arguments in court, a forum bound to apply the law. In order to give this argument a legal framework, I have considered it to be an application for a judicial stay on the ground of abuse of process.

[13]      I believe Ms. Stegenga to be saying that in these circumstances, prosecuting her amounts to state conduct impinging on the integrity of the justice system. This issue was recently considered in R. v. Babos, where the Court confirmed that a stay of proceedings is the most drastic remedy a criminal court can order and only warranted for abuse of process in the clearest of cases. It stated the test to be applied in an application like this one as “whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”.

[14]      In this case, the government’s conduct is not offensive to fair play and decency. Although the reasons for the absence of Lockheed Martin from the next census have not been established, if its absence results from public pressure, then democracy has worked well. Citizens’ opinions have been heard. Nevertheless, Ms. Stegenga was required to comply with the law in 2011, and a subsequent change in public policy would not absolve her of the duty to comply with the law. Nor would it make the prosecutor’s exercise of discretion in proceeding with this prosecution unfair. 

[15]      Ms. Stegenga has failed to establish that s. 31 infringes her rights to freedom of conscience or freedom of expression. She has also failed to establish that a stay for abuse of process is warranted.  Accordingly, I dismiss her application for a judicial stay and for constitutional exemption from compliance with s. 31.