Obligation to provide personal information in “Long Form” Census not a breach of the right to privacy

Finley v The Queen, 2013 SKCA 47 (2 May 2013) (Saskatchewan Court of Appeal) Summary

The Court of Appeal for Saskatchewan in Canada has held that the government did not contravene the right to privacy protected under the Canadian Charter of Rights and Freedoms by requesting personal information from individuals through Census questions. A person is compelled to complete the Census, even though they are required to divulge personal information over which they could claim the right to privacy in other, non-regulatory settings.

Facts

In 2006, Canada required its population to complete the “2006 Long Form Population Census”. Ms Finley refused to complete the Census questions on the basis that it required her to divulge information from within a biographical core of personal information over which she claimed the right to privacy protected by section 8 of the Canadian Charter of Rights and Freedoms.

Following her refusal to complete the Census, Ms Finley was charged with an offence for failing to complete the Census pursuant to section 31(b) of the Statistics Act. The Act provided that any person who, without lawful excuse, refused to furnish information that they are required to provide, is guilty of an offence. Imprisonment was a possible punishment.

The Court of Appeal largely affirmed the decision at first instance, so it is necessary to canvass the trial judge's reasoning below.

At first instance, Ms Finley argued (among other things) that:

  • by compelling her to provide personal information by way of a criminal sanction, the State interfered with her reasonable expectation of privacy (protected by the Charter); and
  • the right to privacy under the Charter amounted to a “lawful excuse” under the Statistics Act for refusing to answer the Census.

Before Ms Finley could be afforded protection under the Charter, she had to demonstrate that the Census amounted to a “search or seizure of an existing thing” which would trigger the right to privacy under the Charter. Ms Finley also needed to demonstrate that in all the circumstances, she had a reasonable expectation of privacy (i.e. an objective test) that ought to be protected by the Charter.

The trial judge was called upon to balance the individual's right to privacy against the interests of the State in collecting information about its population.

The trial judge found that the government's request for personal information by way of a Census did not contravene Ms Finley's right to privacy under the Charter because:

  • the information was sought and used for statistical purposes;
  • the information was not sought for personal use but rather formed a small part of an aggregate collection of statistical information about the entire population;
  • Ms Finley was afforded sufficient anonymity and confidentiality;
  • Census data forms an integral part of the decision-making and policy formulation processes of the Canadian government; and
  • the enforcement provision contained in the Statistics Act was aimed at ensuring the integrity of the data, rather than punishing individuals for failing to respond to the Census - the data was collected for a regulatory purpose.

The trial judge found that the Census was a “search and seizure” and as such the protection of the right to privacy under the Charter could be invoked. However, on the basis of the factors outlined above and applying an objective test, the Census questions did not amount to an unreasonable interference with privacy. The trial judge concluded that an "appropriate balance has been struck between the societal interests of the individual's dignity, integrity and autonomy and the goal of effective information gathering for statistical purposes". Therefore, Ms Finley could not invoke the right to privacy as a “lawful excuse” for failing to respond to the Census and was guilty of an offence under the Statistics Act.

Ms Finley appealed to the Queen's Bench, which upheld the trial Judge's findings at first instance. She then appealed to the Court of Appeal.

Decision

The Court of Appeal affirmed the findings of the trial Judge and the Queen's Bench. The Court of Appeal considered the issue of importance to be whether a person should expect privacy in all the circumstances and, if so, whether that expectation of privacy is objectively reasonable.

The Court of Appeal held that although the information sought to be gathered by the Census was clearly personal information, a balance must be struck between an "individual's desire for privacy and society's desire for good government".

The Court of Appeal stated that "[u]nless a 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 an unreasonable search or seizure" of information.

Accordingly, the Charter does not protect all privacy interests but only reasonable expectations of privacy. The Court of Appeal considered that in regulatory contexts (such as a request from the State for information), an individual's expectation of privacy is (or at least ought to be) considerably lower than in other contexts.

Commentary

The Victorian Human Rights Charter also protects individuals from unlawful or arbitrary interference with their privacy. However, as in Canada, the right to privacy is not absolute and can be subject to reasonable limitations. Victorian Courts would be likely to weigh similar considerations, such as the extent and purpose of the interference, when assessing whether any alleged breach of the right to privacy is lawful.

The need to balance the competing considerations of individual privacy and the public interest in the free flow of information (and, more to the point, its collation by the State for regulatory purposes) is acknowledged in the Information Privacy Act 2000 (Vic), which governs the collection, use and management of personal information obtained by government authorities. The Act specifically provides that the right to privacy needs to be balanced with the public interest in the free flow of information.

This decision is available online at: http://canlii.ca/en/sk/skca/doc/2013/2013skca47/2013skca47.html

Jane Coventry is a lawyer at DLA Piper.