Most people know that they have to fill out the census form. Not many people see statisticians as police officers but the Statistics Act contains penal provisions for failing to fill out the census.
There have been arguments raised against doing so that go to the core of the man-in-the-street understanding of what ‘rights’ are.
In R. v. Finley [2012] S.J. No.134 the accused said that he felt his privacy invaded by having to tell the government whether he owned his own home (a question on the census). The court agreed that the accused Charter s.8 search and seizure right was engaged but that the census was a reasonable seizure of information.
In R. v. Marsh [2014] B.C.J. No.2572 the accused argued that since native reserve members have refused to fill out the census and since Statistics Canada has decided not to prosecute native census-resisters, the accused was not receiving equal benefit under the law. The court said that whom the crown chooses to prosecute is a matter of ‘prosecutorial discretion’ (para 51) and even though mis-use of prosecutorial discretion is at the core of Charter liberty rationale (para 55), the equality protection doesn’t mean what the man in the street always took equality to mean (equal application of the law: Dicey: Law of the Constitution, p.120).
The accused’ failure to properly choose an appropriate ‘comparator group’ for himself, meant that he doesn’t get to trigger s.15 of the Charter.
This result led me to search for any cases before the Charter (and before Diefenbaker’s Bill of Rights) where my man in the street would have ever enjoyed Dicey’s equal application of the law. Upon preliminary review there seem to be about nine references in the hundred years between 1860 and 1960, where the courts allude to equal application of the law.
Long story short:
there never was a hard and fast rule of equal application of the law in Canada. Prosecutorial discretion has always been the hard and fast rule only recently (and only gently) critiqued by the courts under the Charter.
Why would an economist end the census?
It has always been puzzling why Stephan Harper, an economist, abandoned the long-form census (2010). The above jurisprudential criticisms of the census apply to every statute including the criminal code. Those criticisms should not have led to stopping the census.
Economists most of all, know that statistics (more than taxes), feeds the modern state. It is the department of finance’s general equilibrium statistical model which allowed Harper to predict impacts of the HST tax cut. Knowing the census-derived spending patterns in every small community allowed Harper to know the partial-equilibrium impact of every tax idea he had over ten years.
There is always a reason why a government takes a policy step. Bringing back the long-form census was a good step.
