R. v. P. Marsh and S. Marsh, 2014 BCPC 235 (CanLII)
Citation: R. v. P. Marsh and S. Marsh Date: 20141010
2014 BCPC 0235 File No: 3502/3501
Registry: McBride
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
PHILIP MARSH
REGINA
v.
SARAH MARSH
REASONS FOR JUDGMENT
OF THE
HONOURABLE REGIONAL ADMINISTRATIVE JUDGE
M. J. BRECKNELL
Agent for the Director of Public Prosecutions (The Crown) A. Varesi
Appearing on their own behalf: and on behalf of S. Marsh: P. Marsh
Place of Hearing: McBride, B.C.
Date of Hearing: July 11, 2014
Date of Judgment: October 10, 2014
INTRODUCTION
[1] Sarah Marsh (Ms. Marsh) and Philip Marsh, (Mr. Marsh) (collectively the Defendants) are each charged with one count of breach of s. 31(b) of the Statistics Act (the Act) between June 4, 2011 and September 17, 2011, in the case of Ms. Marsh, and between June 1, 2011 September 17, 2011, in the case of Mr. Marsh, in that they each did refuse or neglect to fill in a 2011 Census of Population Form (the Form) and return the Form as required. Each has pleaded not guilty to the charge alleged against them.
[2] Mr. Marsh represented both himself and Ms. Marsh, who is his mother. Mr. Marsh acknowledges that he did not complete or return the Form. Ms. Marsh acknowledges that she did nothing more with the Form than date it, add the following words in the comments section “I am an old age pensioner. You know everything about me” and returned it to the address provided. They found their joint defence on a number of legal arguments including seeking various remedies under the Charter of Rights and Freedoms (the Charter).
[3] The Defendants agreed to have both of their Information’s adjudicated by the Court at the same time. They further both agreed to be bound by the submissions made by Mr. Marsh and the Crown.
EVIDENCE
Ms. Marsh’s Agreed Statement of Facts/Admissions
[4] Ms. Marsh agreed to the following facts:
1. Statistics Canada conducted a Census in 2011;
2. Statistics Canada required one Census form to be completed per household. In all cases, it was to be completed within ten days of receipt of the letter or paper Census Form;
3. On May 26, 2011, a Census Canada enumerator attended to the Accused’s residence at 5269 Mountainview Road in McBride, British Columbia and delivered a Census Form to the Accused. The Accused advised that she would not fill out the Census;
4. The Accused was a resident of 5269 Mountainview Road in McBride, British Columbia at all relevant times;
5. A letter dated August 24, 2011 advising Sarah Marsh that she did not complete the Census Form was sent to her residence and received by her on September 6, 2011. This letter reminded Sarah Marsh that she was required to complete the Census, enclosed another Census Form, and advised her to return the Census form by September 16, 2011;
6. Sarah Marsh did not complete the Census by September 16, 2011;
7. On October 1, 2011, Sarah Marsh dated the Census Form and returned it to Statistics Canada. The Form was not completed, save for a comment on the last page that reads, “I am an old age pensioner. You know everything about me”.
Mr. Marsh’s Agreed Statement of Facts/Admissions
[5] Mr. Marsh agreed to the following facts:
1. Statistics Canada conducted a Census in 2011;
2. Statistics Canada required one Census Form to be completed per household. In all cases, it was to be completed within ten days of receipt of the letter or paper Census Form;
3. On May 23, 2011, a Census Canada enumerator attended to the Accused’s residence at 4855 Mountainview Road in McBride, British Columbia and delivered a Census Form to the Accused. The Accused advised that he would not fill out the Census;
4. The Accused was a resident of 4855 Mountainview Road in McBride, British Columbia at all relevant times.
5. A letter dated August 24, 2011 advising Philip Marsh that he did not complete the Census Form was sent to his residence and received by him on September 6, 2011. This letter reminded Philip Marsh that he was required to complete the Census, enclosed another Census Form, and advised him to return the Census Form by September 16, 2011;
6. Philip Marsh did not complete the Census, and to date no Census has been filed by Mr. Marsh or any resident of 4855 Mountainview Road.
Other Evidence and Documents
[6] In addition to the admissions made by the Defendants, the Crown also relied on the following documents:
a) the Form used for the 2011 Census as forwarded to each of Mr. Marsh and Ms. Marsh;
b) letters dated August 24, 2011, signed by Wayne R. Smith on behalf of the Chief Statistician of Canada and sent to each of Mr. Marsh and Ms. Marsh reminding each of them that they must complete the Form by September 16, 2011 or their file may be referred to the Public Prosecution Service of Canada;
c) an Affidavit of Gordon McCallum attached to each of the letters described above detailing how the Form was originally provided to each of the Defendants and the nature of the follow-up correspondence forwarded to the Defendants by Mr. Wayne R. Smith;
d) an Affidavit of Gordon McCallum attaching an English copy of the Form signed by Ms. Marsh, dated October 1, 2011, and otherwise incomplete save and except for the words in the comments section “I am an old age pensioner. You know everything about me” and a French copy of the Form signed by Ms. Marsh and dated October 1, 2011 and otherwise incomplete.
[7] In support of his submissions on behalf of the Defendants, Mr. Marsh also referred the Court to the following:
a) the Canadian Gazette Volume 144, No. 34, STATISTICS CANADA,P.C. 2010-1077 August 12, 2010 which states in part:
Her Excellency, the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subs. s 19 (1) and 21 (1) of the Statistics Act, hereby repeals Order in Council P. C. 2010 – 792 of June 17, 2010, fixes May 2011 as the month in which a Census of Population shall be taken by Statistics Canada and prescribes the questions to be asked in the 2011 Census of Population, as set out in the annexed schedule.
b) an on line copy of a newspaper article from the Brantford Expositor written by Susan Gamble and dated January 16, 2008 entitled "Native census boycott rooted in distrust of government" which reads in part:
Statistics Canada says that 35,000 people on Canadian reserves refuse to fill out their Census in 2006.
That's a federal crime which is punishable by $500 fine up to three months in prison.
And while dozens of non-natives were charged with not completing their Census Stats Can has said the natives won't be charged because the agency prefers to work with the native communities rather than penalize them.
c) an online copy of a newspaper article from the Ottawa Citizen dated July 8, 2008 entitled "Saskatchewan census refusnik headed to court" which reads in part:
…
An estimated 35,000 Aboriginals living on reserves also refused to fill out the census, according to published reports, but federal officials decided they should not be charged.
…
Peter Morrison, the director general of the census program branch at Statistics Canada, said he can't discuss individual cases but noted that the public prosecution service of Canada decides when to charge individuals. "Is usually based on clear evidence and usually repeated refusals by the respondent" he explained.
…
He pointed out that it is a legal requirement for all Canadians to fill out the census form and that such data is key in determining everything from public and healthcare policy to the distribution of almost $70 billion in federal funding.
Asked why Finley and Stelmach were being charged when a large number of natives were not, Morrison explained that a small number of reserves refuse to allow Statistics Canada access to their communities.
"The bottom line is you can't prosecute a community when you don't have access to that community," he said.
d) the Frequently Asked Questions portion of the Statistics Canada website under the heading "Who is included in the census?" which reads in part:
The census includes every man, woman and child living in Canada on Census Day, as well as Canadians who are abroad, either on a military base, attached to a diplomatic mission, at sea or in port aboard a Canadian-registered merchant vessels.
THE LAW
[8] The Court was referred to the following sections of the Canadian Charter of Rights and Freedoms:
S. 7
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
S. 8
Everyone has the right to be secure against unreasonable search or seizure.
S. 11
Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
S. 15
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[9] The Court was referred to the following sections of the Statistics Act:
S. 19 (1)
A census of population of Canada shall be taken by Statistics Canada in the month of June in the year 1971, and every fifth year thereafter in a month to be fixed by the Governor in Council.
S. 23
(1) . . . the Minister may prescribe that a form be sent to a person from whom information authorized to be obtained under this Act is sought.
(2) . . . a person to whom a form is sent pursuant to subsection (1) shall answer the inquiries thereon and return the form and answers to Statistics Canada property certified as accurate, not later than the time prescribed therefor by the Minister and indicated on the form or not later than such extended time as may be allowed in the discretion of the Minister.
S. 31
Every person who, without lawful excuse,
(b) refuses or neglects to furnish any information or to fill in to the best of his knowledge and belief any schedule or form that the person has been required to fill in, and to return the same when and as required of him pursuant to this Act, . . .
is, for every refusal or neglect, ….. guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both.
S. 37
Any proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within but not later than two years after the time when the subject- matter of the proceeding arose.
[10] The Court was also provided with the case of R. v. Finley 2013 SKCA 47, (leave to appeal to the Supreme Court of Canada refused). There were no other cases referred to by the Crown or the Defendants.
[11] Mr. Marsh is not a lawyer. However, in representing himself (and his mother) and in advancing a variety of legal submissions he has an obligation to attempt to research how the courts have interpreted the Charter and statutes on which he relies.
[12] The Crown is a very large legal entity. Between the Federal and Provincial Governments, there are thousands of Crown lawyers engaged in prosecution of citizens across Canada. The Crown has a duty to the Court and to the Defendants to assist in all circumstances, but particularly in unusual ones like this case, by providing the applicable case authorities. Unfortunately this was not done. This left the Court in the uncomfortable position of having to ascertain what the state of the law is concerning the legal points raised by the Defendants.
[13] Thankfully, the Court has for several years engaged with the University of British Columbia Law School in a student intern program where senior law students work for a semester with the Court. The students have the benefit of seeing the inner workings of the Court and having daily contact with judges as they go about discharging their duties.
[14] Court has the benefit of a group of intellectually inquisitive and academically high achieving individuals who assist in a variety of court related activities. It was one of those interns, Ms. E. Gray, who assisted the Court by providing valuable legal research on the issues raised in this case.
SUBMISSIONS
[15] Mr. Marsh’s submissions on behalf of the Defendants were divided into four categories. The Crown responded to each of the categories in turn.
Limitation Period
[16] Mr. Marsh contended that the Informations had been laid beyond the two-year limitation period provided for under s. 37 of the Act.
[17] He submitted that Order in Council 2010-1077 prescribed May 2011 as the time for the Census. He noted that the Form was delivered to Ms. Marsh on May 26, 2011 and to him on May 23, 2011. He contended that the offence can only have occurred within 10 days of service.
[18] He also noted that the two Informations were sworn on August 20, 2013, and were outside the statute prescribed limitation period.
[19] The Crown submitted that the offences as charged in the Informations were continuing offences from the time the Form was delivered to the Defendants up to and including the time the Informations were sworn, or alternatively, were continuing offences at least from June 4, 2011 through September 17, 2011 inclusive as described in the Informations.
The Charter s. 11 (a) and (b)
[20] Mr. Marsh submitted on behalf of the Defendants that they had a right under s. 11 of the Charter both to be informed of the offence they face and be tried for that offence within a reasonable time.
[21] He submitted that the offence alleged on each the Informations occurred in 2011 but that the Defendants were not served with the Informations until January 2014. He noted that Ms. Marsh is 79 years old, that it was an unreasonable delay for a simple proceeding and that it was difficult for her to remember after such a long period of time.
[22] Although he did not specify the case law he was relying on Mr. Marsh made submissions with regard to the four factor analysis set out in R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 as follows:
a) Length of Delay: a reasonable length of delay is between 8 to 10 months from initial intake and that the delay here was much longer;
b) Waiver of Delay by the Accused: there was no waiver whatsoever on the part of either of the Defendants;
c) Explanation for the Delay: there was no explanation given by either the Crown or Statistics Canada in their affidavit evidence as to why there was the lengthy delay encountered here;
d) Prejudice to the Accused due to the Delay: both he and Ms. Marsh have suffered prejudice because they cannot recall the actual facts of what occurred at the time.
[23] The Crown submitted that they had no previous notice that the Defendants intended to argue s. 11 of the Charter. With regard to the merits of the Defendants’ submission, the Crown replied that in the Morin analysis, time begins to run from when the Information is sworn and not from when the allegations arise.
The Charter s. 15
[24] Mr. Marsh submitted that s. 15 of the Charter requires that individuals not be discriminated against based on their race. He pointed to the Frequently Asked Questions from the Statistics Canada website which states positively that every person should be counted in the Census.
[25] Relying on the newspaper articles he provided Mr. Marsh submitted that First Nations people who decide individually or collectively to refuse to complete the Form are exempted from prosecution due to policy reasons adhered to by Statistics Canada whereas individuals such as himself are singled out for prosecution.
[26] The Crown's response to those submissions was simply that s. 15 of the Charter is not applicable to the circumstances before the Court.
The Charter - s. 7 and 8
[27] Mr. Marsh submitted that everybody enjoys life, liberty and security of the person and that part of that entails being secure against unreasonable search and seizure. He submitted that being required to complete the Form violates those Charter rights.
[28] He used, by way of example, how throughout history, information gathered by governments for supposedly benign purposes have been utilized to the detriment of certain individuals or groups including:
a) cataloging and categorizing Jewish people by the Nazis during World War II to help in implementing the Holocaust and other atrocities against civilians;
b) identification and persecution of people by their ethnicity or religion such as what is occurring at present in countries like Iraq and Syria;
c) the internment of Japanese citizens in both Canada and the United States which was effected in some part utilizing data gathered by the United States Census Bureau.
[29] He also submitted that claims by Statistics Canada that their system is secure is of little comfort. No data is completely secure from breach. The actions of Mr. Snowden of the United States National Security Agency being of recent example of that.
[30] In response to Mr. Marsh's submissions, the Crown relied on Finley and particularly paragraphs 39, 41 and 47 which state:
[39] Thus, the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in information requested by the 2006 Long Form Census which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi-criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and "delinked" from individuals being required to so disclose.
[41] Ms. Finley also argued that both the summary conviction appeal court judge and the trial judge erred by failing to consider her alternative argument, which was that the protection of personal information pursuant to s. 8 of the Charter is a "lawful excuse" as set out in s. 31 of the Statistics Act. This argument, too, is without merit. Once the Court determined that Ms. Finley had no reasonable expectation of privacy, no basis exists for a claim of "lawful excuse". Put another way, Ms. Finley did not demonstrate a lawful excuse apart from her claim to privacy.
[47] …. Unless the court is satisfied that the state has intruded upon an individual's reasonable expectation of privacy, the individual will not be able to assert successfully that there has been a search let alone unreasonable search or seizure. The summary conviction appeal court judge might have expressed this principle more clearly, but I have no doubt what he meant is that s. 8 does not protect all privacy interests, but reasonable expectations of privacy only. With regulatory statutes, like the Statistics Act a person's reasonable expectation of privacy are considered to be lower than in other contexts. This does not mean a court is not required to undertake the close analysis that the trial judge did in this case, but it does mean that once the analysis is complete, the result may very well be that the person cannot claim the state action in question constituted a search for the purposes of raising a s. 8 Charter challenge.
[31] The Crown did not specifically address the submissions made by Mr. Marsh with regard to s. 7 of the Charter.
DISCUSSION
[32] In situations like this, where a citizen is applying to the Court for relief under the Charter, there is an obligation on that party to provide evidence to convince the Court, on a balance of probabilities, that the relief they seek can be granted.
Limitation Period
[33] Mr. Marsh submitted that May 2011 was the prescribed time for the 2011 Census to be taken. As such, the offences could only have been committed in May 2011.
[34] There is nothing in the plain wording of s. 37 of the Act, to suggest that Parliament intended to limit the time period during which individuals could be charged with non-completion of the Form to only May 2011.
[35] The Crown’s position was that the Defendants committed a continuing offence.
[36] What constitutes a ‘continuing offence’ was described by the Supreme Court of Canada in Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471 at 488 as:
A continuing offence is not simply an offence which takes or may take a long time to commit. It may be described as an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality while the offence continues…
[37] Bell dealt with continuing offences in the context of the Criminal Code, so it is important to determine how courts have characterized non-Criminal Code offences.
[38] In R. v. Pickles 2004 CanLII 60020 (ON CA), [2004] O.J. No. 662, the Ontario Court of Appeal considered how to make this determination. The court explained that where the statute includes a penalty-giving provision for each separate day the accused omits to perform a duty or fails to rectify the wrongful activity, then it will be fairly obvious that the offence is a continuing one.
[39] However, the Act makes no reference to a penalty being given for each separate day a person contravenes s. 31(b).
[40] In R. v. Sturby 2005 BCPC 583, Judge Bowden discussed the situation where an accused failed to comply with a statutory duty to perform an act. By failing to comply with a demand by the Canada Revenue Agency to file a Tax Return under the Income Tax Act, the accused had been served with a written demand to comply with the duty by a specific date. Judge Bowden referred to R. v. Sakellis (1970) 1969 CanLII 385 (ON CA), 2 C.C.C. 377, an Ontario Court of Appeal case where that court held that once the time period provided in an order of compliance has lapsed, the offence has been committed and continues to exist until the situation is rectified by the accused.
[41] In R. v. Newton-Thompson 2009 ONCA 449, the Ontario Court of Appeal relied on a number of Canadian and Australian decisions for their definition of a continuing offence:
“…A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed…”
[42] Here, the Defendants’ comportment falls into the category of “passive conduct” with an ongoing obligation that only ceases to be an offence once the obligation has been performed. This strongly supports characterizing failing to complete the Form as a continuing offence. Thus, there is no limitation issue because the time clock never starts.
[43] In the alternative, even if this was not a continuing offence, the dates in question do not support a limitation argument. According to Sakellis, the first date that Mr. and Ms. Marsh were non-compliant was September 17, 2011, as their letter of compliance gave them until September 16, 2011 to reply. Both Informations noted the dates of breach of the Act as between June 4, 2011 and September 17, 2011, which includes the first day of non-compliance. The Informations were sworn on August 20, 2013, which is less than two years after the date of non-compliance, and therefore within the limitation period prescribed by s. 37 of the Act.
The Charter - s. 11 (a) and (b)
[44] The Defendants were informed in a timely fashion about the specific offence they would be facing if they did not complete the Form in the correspondence they received from Statistics Canada in September 2011.
[45] In utilizing the Morin analysis to determine whether or not the Defendants were tried within a reasonable time the following issues must be addressed:
a) Length of Delay - the extent of the delay to be considered by the Court is from the date the Information was sworn (August 20, 2013) until the trial (July 11, 2014). That period of time is less than eleven months and given that McBride is a circuit court location that falls within the time limits mandated by the Supreme Court of Canada. The time prior to the swearing of the Informations is not considered in the analysis
b) Waiver of Delay by the Defendants - there was no waiver of any of the delay by the Defendants.
c) Explanation for the Delay - the time from the final date of the alleged offending behaviour (September 17, 2011) until the Information was sworn (August 20, 2013) was long and largely unexplained by Statistics Canada in the evidence or by the Crown in its submissions. However, s. 37 of the Act specifically provides for a two-year window in order for an Information to be laid and that time window was met. There was no delay in this matter attributable to the Defendants. There was no delay attributable to the inherent Court processes given the limited number of appearances made and the time necessary for arrangements to be made between the Crown and the Defendants in refining and defining the issues to be resolved.
d) Prejudice to the Defendants - the Defendants did not allege any interference with their liberty or that their security of the person interests were compromised in any way during the time it is taken for this case to be resolved. Mr. Marsh did allege prejudice in a general sense based on Ms. Marsh's age and the passage of time since 2011 but there was no evidence presented in support of those assertions. In addition, the Defendants had sufficient recall of the facts (which are in any event very straightforward) to permit them to set them out in the Agreed Statement of Facts and as such the prejudice to them, if any is minimal.
[46] Considering the Defendants’ submissions and applying them to the Morin factors, the Defendants’ Application on this point does not meet the necessary legal burden and it is dismissed.
The Charter - s. 15
[47] Mr. Marsh submits that the Defendants’ s. 15 right to equality was violated due to the Canadian Government’s willingness to forego prosecution of several Aboriginal communities for failure to complete the Form while prosecuting non-Aboriginal people.
[48] In R. v. Kapp 2008 SCC 41, the Supreme Court of Canada succinctly explains the interaction between s. 15(1) and 15(2) of the Charter. Justice Abella, writing for the court, notes at para 40:
… once the s. 15 claimant has shown a distinction made on an enumerated or analogous ground, it is open to the government to show that the impugned law, program or activity is ameliorative and, thus, constitutional. This approach has the advantage of avoiding the symbolic problem of finding a program discriminatory before “saving” it as ameliorative, while also giving independent force to a provision that has been written as distinct and separate from s. 15(1). Should the government fail to demonstrate that its program falls under s.15(2), the program must then receive full scrutiny under s.15(1) to determine whether its impact is discriminatory.
[49] The Crown’s only submissions pertaining to Mr. Marsh’s s. 15 argument was that s. 15 did not apply to this situation.
[50] The Defendants’ equality argument essentially involves an allegation of unequal prosecution of persons for the offence of failing to complete the Form. This conduct is more correctly examined from the perspective of prosecutorial discretion.
[51] In Krieger v. Law Society (Alberta), 2002 SCC 65, the Supreme Court of Canada said at para 32:
The court's acknowledgment of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision-making process - rather than the conduct of litigants before the court - is beyond the legitimate reach of the court.
[52] Further, the court noted at paragraph 49 that for matters falling “Within the core of prosecutorial discretion” courts are not allowed to interfere “except in such circumstances of flagrant impropriety or in actions for "malicious prosecution". The non-exhaustive list of matters at the core of prosecutorial discretion are enumerated and include the decision of whether to prosecute (and, in British Columbia, the decision of whether to lay a charge):
[53] In R. v. Piccirilli 2014 SCC 16, the Supreme Court of Canada described at paragraph 31, when state conduct falling “within the core of prosecutorial discretion” will warrant a stay of proceedings:
Nonetheless, this Court has recognized that there are rare occasions - "the clearest of cases" - when a stay of proceedings for an abuse of process will be warranted…These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category)
[54] Piccirilli explains the test to determine whether there should be a stay of proceedings for abuse of process at paragraph 32 as follows:
1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome";
2) There must be no alternative remedy capable of redressing the prejudice; and
3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits".
[55] While the decision to prosecute the Defendants and not to prosecute Aboriginal people living on reserve appears to fall under the core elements of prosecutorial discretion, some examples may assist in describing a comparative approach to the situation of the Defendants, and why s. 15 did not to apply in those cases.
[56] R. v. Carter 2011 BCPC 253 was a case that dealt with an accused who failed to comply with a demand to file Tax Returns for six years under the Income Tax Act, and where a Charter argument was brought with regards to Crown’s decision to prosecute. In the decision, Judge O'Byrne explained at paras 47 and 49:
47. I think I can take judicial notice of the fact that while the Canada Revenue Agency may investigate offences like this, they do not prosecute them. It is also trite law that prosecutorial decisions made by the Crown are, absent egregious conduct, susceptible to limited judicial review. However, while the Supreme Court of Canada in Krieger v. the Law Society of Alberta, (citation excluded), makes it clear some decisions of the Crown are not a true exercise of prosecutorial discretion and therefore open to judicial review, these instances will by their very nature be rare…
49. In the case at bar, I find that this decision of the Director of Public Prosecutions is one of those decisions that is not open to judicial review. There is no evidence of any improper motive or conduct on the part of the Crown. Accordingly, there is no evidence to the standard on a balance of probabilities to hold that Mr. Carter's s. 12 Charter rights have been breached. I dismiss that argument.
[57] In R. v. Stegenga 2014 BCPC 187, Judge Rounthwaite considered whether prosecuting an accused who refused to fill out the 2011 Census Form (albeit, in that particular case, for moral reasons) would amount to an abuse of process and said at paragraphs 13 and 14:
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. Piccirilli, 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.
[58] In considering the Defendants’ submission on s.15 rights the Court must consider whether the Crown’s decision to prosecute certain individuals under s. 31(b) of the Act is within their discretion, or whether it results 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". As the cases make clear, this is a very high threshold and the Defendants’ complaint about the decision to prosecute in this case does not meet this threshold.
[59] However, an analysis of s. 15 and how it might operate in other contexts is worthy of further consideration.
[60] In Hodge v. Canada (Minister of Human Resources Development) 2004 SCC 65, the Supreme Court of Canada explained that s.15(1) claims should be evaluated by way of a “comparator group” that shares characteristics with the claimant with the exception of the characteristic of the claimant that is the alleged ground of discrimination:
A s. 15(1) claim will likely fail unless it can be demonstrated that the comparison, thus invited, is to a "comparator group" with whom the claimant shares the characteristics relevant to qualification for the benefit or burden in question apart from the personal characteristic that is said to be the ground of the wrongful discrimination.
[61] The Defendants contend that they have been discriminated on based on race. Specifically, they were prosecuted because they are not aboriginal while the Canadian Government is not prosecuting aboriginal people living on reserves. Under s. 15(1) of the Charter, race is included as an enumerated ground.
[62] While s. 31(b) of the Act makes no differentiation based on race, a law can advance “adverse effect discrimination” by its impact, even if that is not, on its face, how it appears. This concept was explained in Native Council of Nova Scotia v. Canada (Attorney General), 2011 FC 72, at paras 46 and 48:
The changes to the census do not draw an explicit distinction on any of the alleged grounds of discrimination; what the applicants allege here is, in essence, adverse effect discrimination. Adverse effect discrimination arises where a law which is on its face neutral, as the changes to the census are here, has a discriminatory effect.”
…The doctrine of adverse effect discrimination is intended to ensure the equality guarantee in s. 15 of the Charter results in substantive equality by recognizing that certain groups’ characteristics may result in a distinction even when no such distinction is explicitly drawn by the law in question. Here, the government’s action simply does not create a distinction.
[63] Apart from the enumerated grounds listed in s. 15(1), courts have also found a number of other ‘analogous grounds’ of discrimination. In Corbiere v. Canada (Minister of Indian and Northern Affairs) 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, the Supreme Court of Canada recognized “Aboriginality” and “Aboriginality-residence” as prohibited analogous grounds of discrimination under s. 15(1) of the Charter. However, when the claimants are non-Aboriginal and live in non-reserve places of residence and seek to make the comparator group Aboriginal peoples, the court made the following comments at para 15:
…First, reserve status should not be confused with residence. The ordinary “residence” decisions faced by the average Canadians should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible. The reality of their situation is unique and complex. Thus no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground.
Second, we note that the analogous ground of off-reserve status or Aboriginality-residence is limited to a subset of the Canadian population, while s. 15 is directed to everyone. In our view, this is no impediment to its inclusion as an analogous ground under s. 15. Its demographic limitation is no different, for example, from pregnancy, which is a distinct, but fundamentally interrelated form of discrimination from gender. “Embedded” analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination.
[64] In Haig v. Canada 1993 CanLII 58 (SCC), [1993] 2 S.C.R. 995, the Supreme Court of Canada explained at page 1044 that residency is not an analogous ground, as it is not a personal characteristic for it lacks “the element of immutability”:
…the group is not one which has suffered historical disadvantage, or political prejudice. Nor does the group appear to be “discrete and insular”. Membership in the group is highly fluid…
[65] According to Corbiere, the Defendants would not have an argument based on the analogous ground of “Aboriginality residence”. Further, “residence” is not an analogous ground according to Haig. In terms of the enumerated ground ‘race’, the Defendants would have to show that the law (i.e. s. 31(b) of the Act) made a differentiation based on race, or had racial adverse effect discrimination. This cannot be demonstrated because the law in question is neutral, and the law itself does not seem to have adverse effect discrimination. It is the way that the law is being applied (i.e. the prosecution of certain individuals) that is at the heart of the Defendants’ argument.
[66] However, if a distinction in law based on the enumerated ground of race under s. 15(1) is made out, it seems clear, as set out below, that s. 15(2) of the Charter precludes these practices from violating s. 15 of the Charter.
[67] In Andrews v. Law Society of British Columbia 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the Supreme Court of Canada explained that the right to equality under s. 15 does not necessarily mean that all groups will be treated identically:
It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.
[68] Kapp determined that the alleged discrimination was the result of a potentially ameliorative program. As explained at paragraph 41, once a distinction under 15(1) is made, the next step is to perform a s. 15(2) analysis:
… A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.
[69] The pervasive historical disadvantage experienced by Aboriginal people was discussed at length in Kapp at paras 55 and 59:
… S. 15(2)'s purpose is to protect government programs targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs. Not all members of the group need to be disadvantaged, as long as the group as a whole has experienced discrimination.
…The disadvantage of Aboriginal people is indisputable. In Corbiere (citation excluded), the Court noted "the legacy of stereotyping and prejudice against peoples" (para. 66). The Court has also acknowledged that "Aboriginal peoples experience high rates of unemployment and poverty, and face serious disadvantages in the areas of education, health and housing"…This disadvantage, rooted in history, continues to this day…
[70] In this case, the Crown presented no evidence regarding s. 15(2).
[71] However, in light of the media articles presented concerning the non-prosecution of Aboriginal reserve communities, it seems apparent from the case law that Statistics Canada’s actions could be characterized as ameliorative or remedial in nature. Due to the historical disadvantage Aboriginal peoples have suffered, as well as the at times hostile relationship they have endured with the Canadian Government, ‘relationship building’ between the Canadian Government and Aboriginal reserve communities appears to be more pressing than the imposition of penalties for non-compliance with Canadian Census laws. This, in itself, raises other issues given that Aboriginal people living on reserves receive, on a per capita basis, more government funding than other Canadians.
[72] As a result of this analysis the Defendants' application for relief on the basis of an alleged equality discrimination based on race is dismissed.
The Charter - s. 7 and 8
[73] Mr. Marsh submitted that being required to complete the Form violates the Defendants’ rights to life, liberty and security of the person under s. 7 of the Charter. In addition, in his submission, Mr. Marsh joined the s. 8 right to be free from unreasonable search and seizure with the s. 7 right to life, liberty, and security of the person.
[74] The Saskatchewan Court of Appeal in Finley recently dealt with s. 8 of the Charter as it applies to those who refuse to complete the Census. As such, there is no need for the Court to further do so. Finley clearly establishes that being required to complete the Form does not violate the Defendants’ s. 8 rights and that portion of the argument is dismissed.
[75] In Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, at para 47, the court affirmed the process in a s. 7 challenge:
S. 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Thus, before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7.
[76] In Singh v. Minister of Employment and Immigration 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at pages 204 and 205, the Supreme Court of Canada emphasized that life, liberty, and security of the person in s. 7 are three distinct interests.
[77] In Blencoe, the Supreme Court of Canada delineated ‘liberty’ as a concept that “is engaged where state compulsions or prohibitions affect important and fundamental life choices” and can be comprised of either physical or psychological restraint to one’s freedom:
The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices.
[78] However, the court also emphasized the importance of distinguishing circumstances that do not engage the s. 7 liberty interest:
Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom. In the circumstances of this case, the state has not prevented the respondent from making any “fundamental personal choices”. The interests sought to be protected in this case do not in my opinion fall within the “liberty” interest protected by s.7.
[79] And it also stated:
The principle that the right to security of the person encompasses serious state-imposed psychological stress has recently been reiterated by this Court.
…Not all state interference with an individual’s psychological integrity will engage s.7. Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress”
[80] Considering the case law on security of the person interests, the situation that the Defendants have been subject to does not amount to serious state imposed psychological stress. While s. 7 promotes an individual’s personal autonomy, s. 7 liberty interests will not be engaged when an individual is dealing with state compulsions that do not rise to the level of affecting fundamental life choices. The Defendants’ argument has not met this threshold and as such it is dismissed.
DECISION
[81] The Defendants’ have failed to convince the Court that they are entitled to the relief they are seeking, a Judicial Stay of Proceedings, on any of the points they have raised.
[82] They have admitted the factual underpinnings of the case against each of them. The Crown has proven beyond a reasonable doubt that each of Sarah Marsh and Philip Marsh have breached s. 31(b) of the Statistics Act, and they are each guilty as charged.
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M. J. Brecknell
Regional Administrative Judge
Northern Region
Provincial Court of BC