Last chance for the 2011 Census?

It is clear by now that reasoned argument, public opposition, political pressure or bad press will not sway the government's decision on the 2011 Census of Population. Even a public letter to the Prime Minister signed by the ex-Chief Statistician, the ex-Governor of the Bank of Canada and two ex-Clerks of the Privy Council, a rather extraordinary event by itself, barely registered with them. This government just does not back off from silly decisions unless forced into it by the courts (and even then, reluctantly and in bad faith). So it will be interesting to follow the Federal Court's hearing of the Fédération des Communautés francophones et Acadiennes' request for an injunction to suspend the government's decision to make the census long form voluntary.

The Court agreed on August 10th to fast track its hearing of the case, which is scheduled for next week, on September 27-28. Even though the government reacted to the Court's scheduling decision by adding a few language questions to the mandatory short form,the FCFAC has decided not to comment on this move and to let the legal procedures play themselves out.

At issue is whether the Charter rights of francophones can be respected in the absence of the language data collected in the long form census (the same case can be made for anglophones in Quebec). The Official Languages Act requires that the government provide services in the official language of choice of Canadians in areas where there is sufficient demand. In this respect, the Act states,

"In prescribing circumstances under paragraph (1)(a) or (b), the Governor in Council may have regard to
(a) the number of persons composing the English or French linguistic minority population of the area served by an office or facility, the particular characteristics of that population and the proportion of that population to the total population of that area;"

The requirement to use census data for the calculation of the official language minority population, which is what prompted the government to add language questions to the short form, is found in the Official Languages Regulations, made by the Government pursuant to the Act, but not in the Act itself.

If the Federal Court finds for the claimant, the government can argue that they have already acted in accordance with the decision by adding the relevant language questions to the mandatory short form. But the Official Languages Act also refers to "the particular characteristics of the population", which may include characteristics such as education, employment and income, found only in the Census long form. It also refers to "area", which in the Regulations is defined, among others, as Census Metropolitan Areas, which are delineated using data only available in the long form.

A favourable decision would also open the door to other legal challenges. There is similar language in the Employment Equity Act and Regulations. In this case, the relevant Census data include aboriginal status, visible minority status, which is derived from race and ethnic origin, disability status and occupation, all found in the Census long form.

Such legal challenges are likely the only remaining avenues for prodding this government into restoring the integrity of the Census of Population. That, or an electoral defeat.