A McBride mother and son have been found guilty of breaching the federal Statistics Act by failing to complete their 2011 census forms.
While Sarah Marsh sent one back, the form was not completed save for a comment on the last page that reads "I am an old age pensioner. You know everything about me." And to date, son Philip Marsh has never filed one.
Representing themselves rather than hiring a lawyer, the two opted against pleading guilty and took the matter to a hearing in July, which resulted in a lengthy and sometimes complex 28-page decision from provincial court judge Michael Brecknell, issued earlier this month.
Among the concerns Brecknell found himself addressing was an apparent double standard in which Statistics Canada has exempted from prosecution on-reserve aboriginal people who refuse to complete the form.
For that aspect of their defence, the Marshes provided two newspaper articles that state 35,000 aboriginals living on reserves refused to fill out the census but won't be charged, in part because Statistics Canada opted to work with the native communities rather than penalize them.
Brecknell concluded Statistics Canada had discretion under the law to take that route and, in part, noted the Supreme Court of Canada found that the right to equality under the Charter of Rights and Freedoms does not mean all groups will be treated identically.
"Due to the historical disadvantage Aboriginal peoples have suffered, as well as the at times hostile relationship they have endured with the Canadian Government, 'relationship building' between the Canadian Government and Aboriginal reserve communities appears to be more pressing than the imposition of penalties for non-compliance with Canadian Census laws. This, in itself, raises other issues given that Aboriginal people living on reserves receive, on a per capita basis, more government funding than other Canadians," Brecknell wrote.
The Marshes also argued that being forced to complete the form violates their rights under the Charter of Rights and Freedoms.
Brecknell disagreed and noted a court ruling on a similar matter found the census is not an unreasonable intrusion on a person's privacy and so does not constitute unreasonable search and seizure.
He also found filling out the census did not amount to "serious state imposed psychological stress" and did not "rise to the level of affecting fundamental life choices" and so did not impinge on their rights to security of person and liberty.
The Marshes also contended authorities violated a two-year limitation for pressing charges under the Statistics Act, noting that while the census forms were delivered to them in May 2011, the information against them were sworn in August 2013.
But Brecknell agreed with Crown prosecution's response that the ongoing refusal to return the forms constituted a "continuing offence" and, failing that, it actually had until Sept. 17, 2013 to swear in the information because the Marshes had until Sept. 16, 2011 to reply to their letters of compliance.
In the same vein, the Marshes argued the time it took to file charges also posed an unreasonable delay under the Charter of Rights and Freedoms because the information against them was not served until January this year and noted Sarah Marsh is 79 years old, making it difficult for her to remember after such a long time.
Crown argued that the time begins to run from when the information is sworn in and not from when the allegations arise, and the trial was held within the time limit mandated by the Supreme Court of Canada. Brecknell agreed.
The two were given absolute discharges without penalties.
"The judge indicated the reason was their age and good background and character," Statistics Canada spokeman Peter Frayne said.
The maximum penalty is a $500 fine and three months in jail.
