Government’s collection of census information does not breach Charter

On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.

The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:

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 the 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 the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.

The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.

R v Finlay, 2013 SKCA 47.

Case Report – Alta. C.A. says “chewing gum survey” does not cause an unreasonable search

On May 11th, the Alberta Court of Appeal held that a defendant abandoned an expectation of privacy in his DNA by depositing chewing gum into a paper cup provided by an undercover officer who had asked him to participate in a “gum survey.” It rejected the defendant’s argument that spitting something out into a receptacle (as opposed to an environment that would promote anonymity) did not demonstrate abandonment. (Wouldn’t the opposite be true?) It also held that the police set up was neither a trick that warranted sanction nor was it an act that affected the Crown’s abandonment claim: “The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it.”

R. v. Delaa, 2009 ABCA 179 (CanLII).

Case Report – BCCA says non-occupant has standing to challenge search warrant

In a fact-driven award released on January 2nd, the British Columbia Court of Appeal held that an accused person who did not occupy premises discovered to be a grow operation had standing to challenge a search of the premises.

The accused lived elsewhere, but the Court inferred possession and control from evidence showing the accused was the owner, possessed keys and was seen there on a few occasions in the two weeks before the search. It held that the trial judge erred in denying standing merely because the accused was not an occupant and that based on possession and control and all the circumstances, the accused had a reasonable expectation of privacy that he was entitled to exercise.

R. v. Vi, 2008 BCCA 481 (CanLII).