Why the Census is mandatory

Even though Stockwell Day assures us that the short form will be retained for the 2011 Census, and that it will be mandatory, it has now been reported that the Conservatives initially wanted the entire Census to be made voluntary.

If that is the case, they really don't understand what the Census is about. By definition, the Census cannot be made voluntary because its purpose is to count EVERYONE in the country. Not just those who want to be counted, but every single person that can be found and contacted. Why do we need a complete count of the population? Fundamentally, it is to ensure that there is a solid basis for our form of representative government. Democracies strive for representation by population. We want everyone to have approximately the same representation in our elected assemblies. The starting point for this is a complete count of the population. The Canadian Constitution specifically requires that the number of seats in the House of Commons be adjusted to maintain appropriate representation after each decennial census. This requirement was in the British North America Act (1867) and was retained in the Constitution Acts (1867 to 1982).

51. (1) The number of members of the House of Commons and the representation of the provinces therein shall, on the coming into force of this subsection and thereafter on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada from time to time provides ...,

The assumption in the Constitution Act that there will be a decennial census makes the holding of a census every ten years obligatory but it does not specify, limit or constrain its content. To support this constitutional requirement, the Statistics Act requires that a census be held every five years, and that, at a minimum, it must provide a population count for each Federal Electoral District.

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.
(2) The census of population shall be taken in such a manner as to ensure that counts of the population are provided for each federal electoral district of Canada, as constituted at the time of each census of population.

To ensure a complete population count, the Statistics Act also makes responding to the Census mandatory, and unlike all the other surveys conducted by Statistics Canada, there is no discretion given to the government to make it voluntary.

8. The Minister may, by order, authorize the obtaining, for a particular purpose, of information, other than information for a census of population or agriculture, on a voluntary basis.

So, holding a census of population every ten years is required by the Constitution Act, the Statistics Act requires that one be held every five years, participation in a census is mandatory and it cannot be made voluntary by order of the Government of the day. Given the logic of the constitutional requirement, it likely cannot be made voluntary even through legislative change. But then, just what exactly is this mandatory thing called the Census? Is it just a count of persons at each address, or does it include more information than that?

The Constitution Act assumes there will be a decennial census, but is silent on its content other than it must provide a population count by province. The Statistics Act specifies that it must provide at least a population count by Federal Electoral District. Many other statutes assume that the Census will provide specific information required for their administration. For example, the Employment Equity Act assumes that data on visible minorities will be provided by the Census as it is required in the administration of this legislation. The Official Languages Act assumes that information on official language and mother tongue will be included in the Census. Many other federal and provincial statutes assume that specific data will be available from the Census, much of which is traditionally found in the long form. All of these statutes reasonably assume that the Census will provide this wide variety of information as, from the very first Census in 1666 to this day, it has covered a wider range of topics that just a population count. The first post-Confederation census in 1871 covered age, sex, religion, education, race and occupation of each person as well as ancestral origins, including Aboriginal persons, plus housing questions.

This content has remained part of the Census for over a century, plus or minus a few additional topics determined through pre-census consultation. As a result, a wide range of uses of Census data at the provincial, municipal and local levels have become institutionalized.

Given these precedents, and the deeply rooted uses of Census data throughout Canadian levels of government , business and civil society, can the government of the day legally curtail census content by simple order in council, without consultation or recourse? If so, must all the statutes that require census data for their administration be amended now that the long standing assumption that such data would be provided no longer stands?

The government's case to do as it will rests on the section the Statistics Act that requires the Census questions to be prescribed by the Governor in Council, and thus recorded in the Canada Gazette.

21. (1) The Governor in Council shall, by order, prescribe the questions to be asked in any census taken by Statistics Canada under section 19 or 20.

But does this section deal with the specific wording of the census questions and their official publication, or does it provide carte blanche for the government of the day to limit content to a simple population count and destroy over a century of precedent and ingrained use throughout Canadian society? The Census is a national asset, owned by multiple stakeholders and made possible by the mandatory participation of all Canadians, a duty that most accept graciously, indeed with pride. That it can be destroyed on a whim for ideological reasons seems an affront to our sense of justice and decency. Maybe a court can be convinced to see it that way and to issue an injunction on the printing of the questionnaires for the new survey that has been proposed as a fatally flawed alternative to the Census. Hopefully, the Council of the Federation will take up the cause.