Chronology of Canada’s Post 1901 Census Issue
Updated 16 September 2003
235 years of Census records, from the first Census of New France in 1666, up to and including the 1901 national Census of Canada, currently reside in the National Archives of Canada and are accessible to any person or body for purposes of research. There are no conditions or restrictions that limit that accessibility, or what might be done with information found within those records.
Clauses in the Access to Information and Privacy Acts make specific provision for public access to ‘personal’ information contained in Census 92 years after collection.
The National Archives of Canada Act provides that the National Archivist shall determine what records of government are of historical or archival value and that shall be deposited in the National Archives.
The National Archivist, Ian E. Wilson, has determined that records of Historic Census do have historical or archival value and are, in fact, a National Treasure. He has formally requested Statistics Canada to turn the nominal schedules of the 1906 Special Census of the Western Provinces (Alberta, Saskatchewan and Manitoba) over to his control.
Chief Statistician of Canada, Dr. Ivan P. Fellegi, refused the request of the National Archivist to turn control of Historic Census records after 1901 over to control of the National Archives of Canada.
The rational for this refusal is based on misinterpreted legislation and Instructions to Officers and Enumerators of Census going back as far as 1905, and Statistics Canada’s claim that a ‘promise’ was made to the people of Canada that confidentiality of Census was perpetual.
Statistics Canada has been unable to provide a single piece of documented evidence that a ‘promise’ of ‘confidentiality of Census in perpetuity’ has ever been made. It does not exist!
Instructions to Officers and Enumerators of Census from at least 1901 to 1946, having the Force of Law, contain clauses that state that records of Census “have value as a record for historical use”, that “The Census is intended to be a permanent record, and its schedules will be carefully preserved for future reference.”, and “its schedules will be stored in the Archives of the Dominion.” If any ‘promise’ was made to the people of Canada regarding Census it was this.
In November 1999, then Industry Minister John Manley appointed an Expert Panel to study and make recommendations regarding public access to Historic Census Records. Their report, finally made public 15 December 2000, found no evidence that legislators of the day intended that records of Census were to remain confidential for all time. They recommended allowing public access to all Census records, past, present and future, 92 years after collection. They urged caution only in the method by which records from 1918 to 2001 were made available.
In making the Report of the Expert Panel on Access to Historical Census Records public, then Industry Minister Brian Tobin discounted the recommendations contained therein, claiming that ‘further broad based consultations with all Canadians’ was required. He stated these consultations would take place with already mandated reviews of the Access to Information and Privacy Acts.
The review of the Access to Information Act took place and the report released with no mention of public access to Historic Census records – it was not part of their mandate. A review of the Privacy Act is not expected to be completed within three years, and access to Census is likewise not included in the mandate of those expected to review it.
On 7 September 2000, Professor Bill Waiser (University of Saskatchewan) made application to Statistics Canada, through Access to Information, for access to nominal schedules of the 1906 Special Census of the Western Provinces. On 6 October 2000 Statistics Canada refused this request. Professor Waiser subsequently submitted a complaint to the Information Commission of Canada regarding this refusal.
In December 2001 and January 2002 a series of Town Hall Meetings and Focus Groups were conducted across Canada. Of 157 presenters at the Town Hall Meetings, 151 were fully supportive of unrestricted public access of all records of Census, 92 years after collection, in accordance with current legislation.
Each of these 151 presenters likewise rejected the so-called ‘compromise solution’ being pushed by Statistics Canada as being too restrictive in who might access the records, what information might be accessed and what might be done with information retrieved.
The ‘compromise’ does not do what it is proposed to do. It would be excessively expensive to set up and maintain, and would be a bureaucratic nightmare to administer. It would prevent access for the greater portion of the Canadian population that do not live within reasonable travel distance to a government office holding copies of the Census records.
On 5 March 2002, Calgary lawyer Lois Sparling, on behalf of the Canada Census Committee and many thousands of genealogists and historians, submitted an Application for Judicial Review to the Federal Court of Canada. The purpose of this Application is to obtain a Writ of Mandamus to compel the Chief Statistician of Canada to turn control of 1906 Census schedules over to the National Archivist. It was later modified to include a request for certain declarations relating to public access of these records. As of November 2002, witnesses had been questioned, all written testimony had been exchanged and a date for a hearing by the Federal Court had been requested. At the time of writing a date for the hearing had not yet been given.
To date (September 2002), more than 60,000 signatures have been sent to Ottawa seeking to regain public access to Post 1901 Census records on the same basis as records up to and including 1901 are currently available.
With the proroguing of the First Session of the 37th Parliament of Canada in September 2002 all Bills and Motions (including Bill S-12) once again ceased to exist, making it necessary, if no government action takes place, to again re-introduce our Private Member bills in the House of Commons and the Senate.
On 3 October 2002, the Hon. Don Boudria, during an address relating to the Fall Legislative Agenda, made reference to pending legislation to deal with the issue of public access to 92-year old Census records. As of 7 January 2003 no legislation had been presented.
On 11 and 12 December 2002, Information Commissioner John Reid finally responded to the complaint of Professor Bill Waiser, and some thirty other complainants, regarding the refusal of Statistics Canada to allow public access to nominal schedules of the 1906 Special Census of the Western Provinces. In his positive response Mr. Reid stated:
"As a result of theis investigation, I found that access to the withheld records is authorized pursuant to paragraph 19(2)(2) of the Access to Information Act by reference to subsection 8(3) of the Privacy Act and s.6 of the Privacy Regulations. On October 18,2002, I recommended that SC release the requested schedules. However, on November 1,2002, Dr. Ivan P. Fellegi, Chief Statistician, informed me that he does not intend to follow my recommendation."
Mr. Reid requested authourization from each complainant to proceed to Federal Court, on their behalf, for a review of the refusal by the Chief Statistician to release the records in question. His action was filed with the Federal Court on 4 January 2003.
On 24 January 2003, a joint News Release by Ministers Allan Rock and Sheila Copps announced the release of the 1906 Census of the NorthWest Provinces. The records were released with no conditions or restrictions, on the same basis that 235 years of Census records had been released before them. Within minutes of the announced release of these records, National Archivist Ian Wilson announced that scanned images of the original schedules of Census had been placed online for access by all interested parties. Microfilm copies of the schedules of Census were also sent to libraries of selected major cities in each Province of Canada.
The release and publication of the 1906 Census of the NorthWest Provinces effectively halted the legal actions of both the Canada Census Committee and the Information Commissioner. The court awarded costs to the lawyer for the Canada Census Committee thus strengthening the opinion that the action had been successful and was mainly responsible for the timing of the release of the 1906 Census records.
On 5 February 2003, the Hon. Fernand Robichaud (Deputy Leader of the Government in the Senate) introduced Bill S-13 in the Senate. The government stated S-13 was intended to 'remove a legal ambiguity' and claimed it was a 'compromise'. It contained conditions and restrictions which have numerous times been rejected by those seeking unrestricted access to Historic Census Records.
Bill S-13 passed through Committee with no clause-by-clause debate, and without expected amendments being moved or discussed. It passed through Report stage and Third Reading in the Senate with no amendments proposed or discussed. With the exception of Senator Milne, the only Senators speaking to the Bill were those who basically oppose any access at all. S-13 passed Third Reading and was referred to the House of Commons 27 May 2003.
Bill S-13 received First Reading in the House of Commons 28 May 2003. While scheduled for discussion more than once, it was pre-empted by debate on other issues, and received no further action prior to Parliament adjourning for the Summer recess.
On 5 June 2003 Calgary lawyer Lois Sparling filed a second Legal Action with the Federal Court on behalf of one plaintif -- Mertie Anne Beatty. It deals with the failure of the Chief Statistician to turn over control of the 1911 Census records to the National Archivist.
June 2003. The effective date of the 1911 Census of Canada being 1 June 1911, those concerned with obtaining access to these vital records are encouraged to seek that access through submitting Access to Information requests to Statistics Canada, and upon rejection of those requests to submit letters of Complaint to the Information Commissioner. This effort was later expanded to include ATI requests to the National Archives of Canada.
11 July 2003. Lawyers opposing our legal action served a motion to strike our action on the basis that the Chief Statistician has no duty to release control of the 1911 Census to the National Archivist and that the National Achivist has no duty to release the 1911 Census to the public, and as such our action has no chance of succeeding. The hearing for this application was set for 7 August 2003. This application was made on the day Affidavits from the government were due, thus delaying the submission of those Affidavits.
5 September 2003. The Hon. Madam Justice Layden-Stevenson rendered her decision re: the application of Justice Canada lawyers to strike the legal action of Mertie Beatty. Justice Canada lawyers received a small measure of success in that a request seeking an order 'directing the Chief Statistician and the National Archivist to make the nominal returns and schedules of the 1911 Census of Canada available to the public for research purposes' was struck. In all other respects, the motion of Justice lawyers was dismissed. In reading the judgement it would appear that the judge felt the request struck was premature -- that it must first be proven that the Chief Statistician has a responsibility to return care and control of the records to the National Archivist. At such time as that happens, and the National Archivist actually has care and control of the records, he can be requested to release them to the public. Should that request be denied, then an order directing the National Archivist to release the records to the public might be sought. Respondents were given 15 days from the date of the order in which to file any responsive affidavits.