Stanbury on Coercion

Professor Emeritus at University of British Columbia, William Stanbury, has produced a handy treatise on coercion, published online in the Hill Times this week. Stanbury focused his career as a professor of economics on strategic decision-making in business, including government relations, competition rules, regulations and other public policies that strengthen business performance.

His insightful summary of the arguments on coercion that have emerged during the census debate follows in full here, with his permission as well as that of The Hill Times.

Government coercion in perspective: where does the long form of the census fit?
Filling out the long form census takes under 30 minutes, it does not ask about your sex life and no individual data have every been released. StatsCan officials know that their very existence depends on keeping individual data top secret.
By W.T. STANBURY
Published July 26, 2010

The core of the Harper government’s case for making the long form of the census voluntary (rather than mandatory for 20 per cent of households as it has been for 35 years) is that it is intrusive and coercive.

Here I examine the various types of coercion that are now or have been imposed by the federal government in an effort to put the mandatory long form into perspective.

The opponents of the government’s move to spend an additional $35-million to try to elicit one-third of households to volunteer to complete the long form (and I am one of them) need to deal directly and respectfully with the arguments for the change. Analysis can help here as in all policy issues.

The Government’s Arguments

The initial stated argument for the change in the census was as follows: “Our feeling was that the change was to make a reasonable limit on what most Canadians felt was an intrusion into their personal privacy in terms of answering the longer form,” Erik Waddell, spokesman for Industry Minister Tony Clement, said (Jennifer Ditchburn, Canadian Press, June 29, 2010).

Mr. Clement said the government’s decision (actually that of the PM personally, according to Jeffrey Simpson, The Globe and Mail, July 17, 2010) was “based on the fact that many Canadians had complained of the coercive and intrusive nature of the census, but Clement had not seen polling on the issue.”….According to Clement, “Every MP has had complaints like that so this year we decided to at least try another method that could be a sound method that would beat the issue of concern of degradation of data, and deal with the issue of coercion and too much intrusiveness,”(Ditchburn, Canadian Press, July 1,2010)

Mr. Clement said a week later that “Every four years, when the census is taken, Canadians flock to their local Member of Parliament to complain about being forced to answer ‘very intrusive questions,’” which cover everything from income to education level. “That’s the balance we’re trying to strike, between people who are concerned about that as opposed to the need for data,” (The Globe and Mail, July 7, 2010).

On July 13, 2010, Industry Canada issued a press release. “The government does not think it is appropriate to force Canadians to divulge detailed personal information under threat of prosecution.”

When told that the privacy commissioner had received less than a handful of complaints, Mr. Clement said that “If you’re concerned about government intrusion, you’re not likely to complain to another organ of government….They would see it as compounding the issue if they complained,”(Steven Chase, The Globe and Mail, July 15, 2010).

Sen. Marjory LeBreton, who leads the Conservatives in the Senate, suggested nothing will be lost by moving to a voluntary long census. “There’s still going to be a long form,” she said in Ottawa. “The only difference is, this is voluntary. Canadians, I believe and we believe, will be very happy to fill in the long forms,” she said, (The Canadian Press, July 13,2010)

Maxime Bernier, a former minister of Industry, was quoted in a news story on July 18 saying that during the last census period in 2006, he received an average of 1,000 e-mail complaints a day while the survey was going on.(Heather Schofield, Canadian Press, July 18, 2010).

Treasury Board President Stockwell Day said “All we’re saying is, people shouldn’t be threatened with jail because they don’t want to tell some unknown bureaucrat how many bedrooms they’ve got in their house,” on Calgary radio station QR-77… “And you know, even prisoners of war only have to give their name, rank and serial number,” (quoted by Steven Chase, The Globe and Mail blog, July 23,2010).

Editorial Support

By July 24, only one newspaper editorial supported the government. (In contrast, The Globe and Mail has published five editorials opposing the change: July 12, 19, 21, 22, 24).

Here is the core of its argument of the Toronto Sun on July 20,2010: “Call us crazy, but we believe the less the government knows about our personal lives the better. Big Brother is so … well, so 1984.It’s also more reminiscent of the constraints of communism than the freedoms of democracy….We hope this bully-boy tactic—either fill it out or face prosecution—is forever down for the count…. If it [the state ] has no business in the bedroom, then it has absolutely no business knowing how many bedrooms are in our homes.”

For a wonderful deconstruction of the Sun’s editorial, see Robert Silver, Globe and Mail blog, July 20,2010

Legitimate Exercise of Coercion

In a democratic society, sovereignty rests with the people. They delegate to their elected representatives authority to make laws which are ultimately backed by coercion. Thus the people arrange to be coerced by the government they establish. The power to impose coercion is—properly—tightly circumscribed. First, both Houses of Parliament must approve the laws under which coercion can be exercised. Second, the civil right of individuals are protected in the Charter of Rights and Freedoms, part of the 1982 Constitution. Third, in almost every case, coercion on the form of monetary penalties or imprisonment cannot be imposed until after a trial has been held before a court or court-like tribunal. In all cases, there are rights of appeal, usually in two stages. Fourth, in some cases, individuals can appeal to one or more specialized bodies which have a measure of independence to investigate allegations of improper action by a government department or agency.

Coercion in Perspective

Coercion by the state is always a matter of degree. Clearly the most coercive act by the state is the imposition of the death penalty after due process of law. (Canada eliminated the death penalty for murder on July 14,1976. The last execution was in 1962). Next might come the imposition of the draft for military service in time of war. (Note that the death rate varies greatly by branch of service and particular types of assignment.) Somewhat less coercive is imprisonment for a long tern (up to life) after due process of law. (But we know that the actual sentence may be far less than the one handed down at trial.) Then would come a large fine—by large I mean large relative to the person’s ability to pay—and which also ensures that there are no ill-gotten gains from the crime. And then we come to fines for parking tickets (at the local level) and civil monetary penalties (for example, the Ethics Commissioner can impose a penalty of up to $500 for failure to file the required information.)

Taxes are by definition compulsory levies, and in Canada the overall tax burden is high because we have a welfare state. People understand that if they fail to pay the taxes levied by government, they could be fined ,hit with penalties exceeding the unpaid taxes, and—just possibly—be put in jail.

Long Form as Coercion

So how coercive was the mandatory long form of the Census? Every five years a random sample of 20 per cent of households were selected to complete the 53-question long form. This task–done only by an adult for the entire household–usually took less than 30 minutes. The questions may probe what some define as intimate matters, but the responses are not just confidential—they are treated as top secret by Statistics Canada. The agency takes great pride in keeping individual files secret, and in preventing inferences about small groups of individuals from published information.

How many people would be required to respond to the long form? About 1.1 million persons out of a total population of some 34.2 million as of July 1,2010. Here is the calculation. The average size of households is 2.5 persons, based on the 2006 census—so that means 13.7 million households. A 20 per cent random sample equals 2.74 million households. But only one adult in each household answers the questions—so divide by 2.5 to get a total of 1.1 million..

Despite the possible use of coercion, StatsCan relies—as do the income tax authorities—on voluntary compliance. They are prepared to make several call backs and/or telephone calls to urge compliance. Officials know that the maximum fine that can be imposed if a case is taken to court is $500. In theory ,a judge could jail a person for non-compliance, but there is no record of this ever being done. Section 31 of the Statistics Act provides for these penalties: “fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both.”

Prosecution can take years to reach a resolution. For example, Saskatoon-based activist Sandra Finley continues to fight the federal government in court over her refusal to return the 2006 census, (Ditchburn, Canadian Press, July 1, 2010).

In summary terms, the average Canadian adult will be chosen to fill out the long form once in a lifetime. The task will take under 30 minutes. Some of the questions may be puzzling, but they do not ask about anyone’s sex life. (That is left to Oprah and some other talk show hosts.) Finally, no individual’s data have ever been released. StatsCan officials know that their very existence depends on keeping individual data top secret.

Conclusion

When compared to the full range of coercion exercised by the federal government, that related to the long form of the census is the most mild. And there are very good reasons why it is mandatory. A random sample (in this case 20 per cent of households, not individuals) is the only scientific way (short of a 100 per cent count) of assuring that the data will not be biased in ways that are impossible to determine precisely.

W.T. Stanbury is professor emeritus, University of British Columbia.

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