Written submission of Gordon A. Watts
1455 Delia Drive
Senate Standing Committee on
This document forms the written portion of my submission to the Senate Standing Committee on Social Affairs, Sciences and Technology for their deliberation on Bill S-13 - An Act to amend the Statistics Act.
The opening 'Summary' of Bill S-13 states that "this enactment removes a legal ambiguity in relation to access to census records taken between 1910 and 2003".
This enactment does considerably more than remove a legal ambiguity. It imposes conditions that are neither necessary nor desirable, and that were not envisioned in either the applicable legislation, or in the Instructions to Enumerators of Census that have, and always have had, the force of law. It imposes conditions upon the 1911 and 1916 records that were taken under the same legislative statute, and similar Instructions to Enumerators, as was the 1906 Census that has been made available without restrictions or conditions of any kind. In releasing the 1906 records without restriction the government has conceded that existing legislation allows them to do so. There is no valid reason why the 1911 and 1916 Censuses should be treated any differently than the 1906. They should be made available without restrictions or conditions of any kind.
The 'Summary' further states that Bill S-13 "allows genealogical and historical researchers access to these records under certain conditions for a 20-year period, beginning 92 years after the census took place. One hundred and twelve years after the census, anyone may examine the records without restriction."
There is no valid reason whatsoever, either legal or moral, to require a twenty-year extension beyond the mandated period of closure (92 years), wherein information beyond specified basics can be viewed by any researcher, but cannot be disclosed by that researcher to others.
If the records themselves are accessible without restriction to any person doing research, it makes no sense whatsoever to say that researcher may not subsequently disclose part of the information contained in those records for an additional twenty years. Such provision would not prevent the information being known because a researcher need only advise where the information might be found, rather than disclosing it themselves. It keeps the information from no one.
Such a requirement is not logical. The decision to include it cannot be based in logic, in reason or on past legislation. In our opinion it is included only for one reason -- to provide an appeasement to the Chief Statistician so that he can state that he did not lose the Census issue entirely.
Without the twenty-year extension there would be no need to include an "undertaking". Without the twenty-year extension there would be no need to require anyone to sign an "undertaking", or to include a clause requiring anyone signing the "undertaking" to comply with same. Without the twenty-year extensions there would be no need to distinguish between genealogical and historical researchers. Without the twenty-year extension there would be no need to include clauses stating that the "Governor in Council may, on the recommendation of the Minister and the Minister of Canadian Heritage, make regulations" that allow for prescribing forms of "undertaking" or "categories of persons" for approval of historical research projects. Without the twenty-year extension there would be no need to prescribe penalties for failing to comply with the "undertaking". Without the twenty-year extension there would be no question about being able to index Census records following the mandated period of closure instead of having to wait a further twenty years.
Without the twenty-year extension and the other clauses included because their existence is dependent upon it, we are left essentially with a slightly reworded clause (4) without sub-clauses, clause (8), and a slightly reworded clause (10).
Section (4) of Bill S-13 states "The information contained in the returns of any census of population taken between 1910 and 2003 may, starting ninety-two years after the census is taken, be examined by"
Use of the term "may" in legal terms implies a degree of discretion and ambiguity. As the stated purpose of this Bill is to remove any ambiguity, it would be more proper to state "The information contained in the returns of any Census shall be accessible, following a mandated period of closure, for examination by….".
I have used a reference here to "a mandated period of closure" deliberately. The 92-year period of closure is referenced in Regulation 6(d) of the Privacy Regulations. It is felt that the frequent reference in Bill S-13 to "92 years" might be considered redundant, and that reference to a "mandated period of closure" might be more appropriate.
The use of a reference specifically to "any census of population" would eliminate any possibility of access to information contained in a census of agriculture. A census of agriculture would certainly provide identifying information of interest to genealogists. The inability of academic historians and demographers to access information in a census of agriculture would severely limit the scope of their research. Is there really a need to keep from researchers information such as how many cows and chickens an individual owned, how many acres of land are cultivated, or how many bushels of wheat and oats were harvested? All references in this document to "any census of population" should be changed to read simply "any census" or "any census of population or agriculture".
There is no record to date showing that genealogists and historians have been abusive in their use of information found in Census records. There is no reason to believe that all of a sudden there would be abusive use of subsequent records. There is no need for any undertaking to be prescribed by regulation, or for such an undertaking to require a signature by those seeking access to the records. As with the requirement for a twenty-year extension where information allowed to be disclosed by a researcher is restricted, we view the need to sign an "undertaking" as simply an appeasement to the Chief Statistician.
In considering Bill S-13, we have not been shown the terms of the "undertaking" referred to. As such we are being asked to accept "a pig in a poke". We are advised that the "undertaking" would prevent disclosure of any information from Census other than the following: Name, Address, Age (or birth-date), Sex, Marital Status, Origin, and Occupation. There are a number of other items it is felt necessary to be included in the minimal information that may be disclosed by a researcher. Those would include, but are not restricted to, the following: Relationship to Head of Household, Religion, Birthplace, Date and place of Immigration and Naturalization.
For access to records after the mandated period of closure (currently 92 years) there is no valid reason or need for historical research to be approved, or for the same reasons stated above, for any signing of an "undertaking". Such requirement might be acceptable to allow academic historical research prior to the expiration of the mandated period of closure, but not after.
There may be reason to allow earlier access to the records for approved academic historical and demographic research, and it is believed there is precedent for such approved research. Results of academic historical and demographic research are typically released without identifying information being included. It is also typical that what is of interest to academic researchers is not the personal identifying information, but it is specifically the information that we understand would be restricted from disclosure by the "undertaking" required above. Access to identifying information is, however, necessary during the academic research to be able to track individuals and families through successive Censuses.
Inclusion of clause (7), frankly, does not make any sense at all. Basically, Section (4) already states that anyone willing to commit to an "undertaking" may examine the Census records. Aside from our belief that such an "undertaking" is not necessary, we are led to believe that once having committed to the "undertaking" any person will have unrestricted access to all information in those records. It is not what may be examined that is restricted, but what may be passed on to others by those doing the examination. Removal of the twenty-year extension beyond the mandated period of closure would remove any need to include clause (7)
Section (8) is an "informed consent" provision. It is an "OPT-IN" requirement for future Censuses that would entail EVERY person participating in Census to give individual consent for their records to be retained and made accessible after 92 years. Experience with "OPT-IN" circumstances has shown that many people simply ignore such "check-box" options and leave them blank. Government typically views empty "check-box" options in a negative manner and many persons not having any particular feeling about the issue one way or the other, not having responded to the question, would have their records excluded.
The Expert Panel appointed by Industry Minister John Manley in November 1999 had this to say about Release of Future Census Records:
"It will not have escaped the reader's attention that we have said little about the situation with respect to the release of the records for future censuses. We do not consider this to be a difficult matter. Provided that respondents are advised that individual census records will be released after a 92-year period we do not foresee a problem. Our public opinion data suggest the vast majority of Canadians are untroubled by this prospect and will not consider it an impediment to response. It is incumbent on Cabinet to keep this in mind when it approves questions for the census but we believe the addition of this consideration to Cabinet's concerns is a proper exercise of the executive power."
About "Consent" the Expert Panel stated:
"The Panel does not recommend that each individual's or respondent's consent be sought for future release of census records.
The Panel is not convinced that the provision of consent, for example, as proposed for the 2001 Australian Census, would achieve an adequate result in Canada. The notion of "group consent" whereby the individual who completes the household census form provides consent on behalf of all household members is not a form with which Canadians are familiar; nor is it founded in Canadian privacy law and practice.
Rather, the Panel recommends for the 2001 Census that Canada adopt the practice currently in place in the United Kingdom and the United States. For the 2001 Census and all others where a household questionnaire is used, respondents would be informed that their individual census information would be kept secret for 92 years and after this time, the information would be publicly released by the National Archives.
In most countries where records of Census are released to the public after a period of closure, requesting permission from respondents for future release is not the norm.
We do not view a check-box option as being either necessary, or desirable. Such an option would result in a somewhat fragmented history, possibly to the point of making the records unusable for any scientific demographic research in the future.
If, in order to ensure continued release of Census records, we are forced to accept a "check-box" option, that option must be an "OPT-OUT" choice, and information for those who do not respond to the option, or do not specifically choose to opt out, must remain in the records for future access. In that manner, only those who specifically object to access of their information after the mandated period of closure, and who have consciously made a choice not to allow access to their records, would be excluded from future access.
The 2001 Census of Australia included a question on their forms that provided, for the first time, a question that allowed respondents to have their census return microfilmed and stored by the National Archives, in a 'time capsule', and publicly released in 99 years time.
The result was that 52.7% (or just under 10 million) said yes, 31.9% said no, and 15.4% left the question unanswered. If the question was left unanswered that was regarded as a no vote. A result such as this, with only 52.7% responding yes, would render the results useless for any scientific or academic historical research. It would also deprive a large number of genealogists of the future any information regarding us - their ancestors.
In a modern Census, the head of household typically fills out the Census forms, including information regarding minor children. Does the head of household have the right to make a decision on opting out on behalf of those minor children? What about the case where the head of household opts out for minor children who, given the choice themselves would choose to have their records retained for future access. If a minor child, reaching the age of majority wished to change the opting out done by a parent it would not be possible to do so. The right of that child will have been preempted. Does the head of household have the right to make a decision on opting out on behalf of visiting relatives or others, including servants and employees? Does the head of an institution, filling out Census on behalf of inmates of that institution have the right to decide for them whether to opt out or retain their records for future access? Presumably the records of those that were opted out would be destroyed making it impossible for anyone having opted out to change their mind.
Section (10) is conceivably the most important, and in our view possibly the only necessary clause of Bill S-13. It is this clause that provides the clarification that was stated to be the purpose of this legislation. Not only does it establish and ensure that Records of Census will be transferred to the National Archives, but it states the reason for such transfer is to permit their examination after a period of closure. Once having been transferred to the National Archives it would take some time to prepare the records for release thus extending the period beyond which the records would be available for examination. We would prefer to see the records transferred to the National Archives earlier, say 30 years after collection.
Sections (2) and (3) would seem to be necessary only because of the inclusion of the twenty-year extension restricting what information, from records accessible by any researcher, that may be disclosed by the researcher. As indicated above that twenty-year extension is not viewed as either necessary or desirable. That twenty-year extension should be removed from this Bill, and in so doing there would no longer be any need to include Sections (2) or (3).
If, as has been stated, the purpose of the Bill is to clarify that records of Census after 1906 will be made available to the public on a continued basis, following a mandated period of closure, that can be done simply by the addition to the Statistics Act of one statement such as the following:
"Original schedules of Census, or microfilm thereof, shall, thirty years following collection, be transferred to the care and control of the National Archivist for subsequent public examination for purposes of research, in accordance with provisions in the Access to Information and Privacy Acts, and Regulations attached thereto."
A few added comments. Searching of records of census can be a long tedious job without a nominal index. A great deal of volunteer time is spent poring through microform in order to compile nominal indexes for census records. There is a fear that if the twenty-year extension is maintained, volunteers will be prevented from doing this indexing work until the twenty-year extension has expired.
While it has not been an active part of our campaign there are a great many people that would like to see the mandated period of closure shortened from the current 92 years. It has been noted many times that the United States releases their records of Census, with great fanfare, 72 years after collection. They currently have access to their 1930 Census records. As Canada has done so many times with other things, we might consider following their lead in this regard.
The increasing intrusiveness of questions asked on the long form Census schedules has been used as reason for withholding Census from public access. It is our understanding that the US Census for the year 2000 was the last on which they will include a long form. This is another area in which we might consider following their lead. Statistics Canada could easily obtain the information included on our long forms by using a separate survey, not connected with Census. Such a survey could be conducted at the same time as Census, but as stated, not be connected directly to it.
There is much more that could be said about the provisions of Bill S-13, but time is limited. We can only hope that the Committee will view this submission, and the submissions of others, with an open mind. We ask that they keep in mind that many tens of thousands of Canadians and others have petitioned our parliamentary representatives seeking unrestricted access to Census records after the mandated period of closure. There has been no evidence that anyone other than the Chief Statistician of Canada, and possibly the Privacy Commissioner opposes this unrestricted access. There has been no demonstrated public opposition to that access.
Changes in legislation are normally influenced by numbers of complaints by the citizens of the country concerned. In 1999 it was estimated that 620 million people had been enumerated in Canada, England and Wales, and the United States - a very low estimate in my opinion. There had never been a single recorded complaint regarding public access of these records after a period of closure.
Since that time a further 380,520,834 people in these countries have been enumerated for a total exceeding one billion people. There still have been no known recorded complaints regarding access after a period of closure. Considering this extraordinary precedent, we cannot understand the desire of the government to attach conditions to access for which no need has been demonstrated.
Gordon A. Watts