An Alberta couple is suing the federal government over the long-form census, saying it violates their privacy rights.
Bradley and Linda Osborne launched a Charter challenge in June after being mandated to complete the long-form census.
The couple objects to having to answer questions about their sexual orientation, physical and mental disability and history of homelessness, among other things.
These questions force individuals to “divulge information that will tend to reveal intimate details of their lifestyles and personal choices,” their statement of claim reads.
Reoccurring controversy
Since 1971, the census has included both short and long versions.
The short-form census — which about 75 per cent of households are asked to complete — asks how many people live in a household, their relationship to each other, their gender, and whether people speak English or French.
The long-form census — which is completed by about 25 per cent of households — includes more detailed questions about a range of topics.
The long-form census has attracted controversy for years. In 2010, then prime minister Stephen Harper announced it would not be used in the 2011 census.
Justin Trudeau reversed that decision for the 2016 census.
Completing the census is mandatory, and failure to complete it can result in a fine of $500.
The possibility of fines means the government “requires Canadians under threat to complete [the long-form census],” said Hatim Kheir, the lawyer representing the Osbornes.
This year’s long-form census included questions about a person’s ethnic background, religion, language, sexual orientation and gender expression, disability and experiences of homelessness.
The lawsuit alleges some of these questions violate Charter rights to life, liberty and the security of the person, as well as the right to be free from unreasonable search and seizure.
The right to be free of unreasonable search and seizure typically applies to criminal searches. But courts have also ruled it applies to the government forcing individuals to disclose “information that goes to our biographical core,” said Kheir.
This is information people often “expect to be able to keep private and should be able to keep private,” he said.
Statistics Canada declined to comment for this story because of the legal proceedings.
Privacy concerns
Census data is used primarily to create electoral districts and plan government programs, such as Old Age Security. It may also be used for additional research, Statistics Canada says.
The data is not shared with anyone outside the agency, its website says, and Statistics Canada employees who view individual census answers take lifelong oaths of secrecy.
But the long-form census may require individuals to divulge personal information — such as sexual orientation or mental health concerns — to the person in their household who completes the census, says Kheir.
“[D]epending on their household situation, [people] may not want to do [this] for very good reasons,” said Kheir, noting the person completing the census is not obliged to keep the information private.Â
Gerard Kennedy, a law professor at the University of Alberta, says an argument can be made that the census violates individuals’ privacy. But it may be an “uphill battle” to prove a Charter violation, since the Charter only protects individuals against unreasonable searches and seizures.
“The fact that you have a reasonable expectation of privacy doesn’t end the matter,” he said. “The government further needs to be taking the information unreasonably.”
The government could argue that it has a reasonable reason for collecting information to make better public policy, and that it protects the information from public disclosure, he says.
But the privacy concerns about needing to share personal information with someone else in an individual’s household is an important factor, he says.
Research data
The long-form census provides valuable information for researchers, says Jennifer Zwicker, a University of Calgary kinesiology professor and Canada Research Chair in disability policy for children and youth.
“Canada has very limited population-level data on persons with disabilities, making the census’ disability-related questions in the long-form census particularly important,” she wrote in an emailed statement to Canadian Affairs.
Kheir says Statistics Canada has several ways other than the census to collect information needed to inform public policy decisions.
“Constitutionally speaking, the census just needs to find out how many Canadians there are and where they live for the purposes of drawing fair electoral boundaries,” he said.
“There are other non-mandatory ways for the government to obtain this information [in the long-form census].”
The structure of the long-form census is an “infringement on privacy [that] is so great that it outweighs the potential planning benefits that the government might hope to obtain from it,” he said.
Perhaps, but really, all the data goes into the pot for summarization. Such a waste of resources to pursue something in the courts.