français

EXTRACTS FROM HANSARD
-----
PROCEEDINGS OF CANADA'S SENATE

The following extracts have been taken from Hansard Records
of Canada's Senate for the 38th Parliament of Canada:

Debates of the Senate (Hansard)
1st Session, 38th Parliament,
Volume 142, Issue 14
Tuesday, November 16, 2004
The Honourable Dan Hays, Speaker

---

ORDERS OF THE DAY

Statistics Act

Bill to Amend—Second Reading—Debate Adjourned

Hon. Lorna Milne moved second reading of Bill S-18, to amend the Statistics Act.

She said: Honourable senators, I sincerely hope that we are nearing the end of this story. On October 27, 1998, just a little more than six years ago, I rose and said:

I give notice that on Thursday next, November 5, 1998, I will call the attention of the Senate to the lack of access to the 1906 and all subsequent censuses caused by an Act of Parliament adopted in 1906 under the government of Sir Wilfrid Laurier.

After six long years of negotiating and fighting since that notice of inquiry, I rise once again on this issue. Today, though, I sincerely hope is different. This time, I am pleased to announce that the government, genealogists, historians and archivists have worked out a solution to this most complex problem that has bedevilled us for years.

Bill S-18 is a government bill that will allow for the release of historic census records without conditions 92 years after the date of the census. It also contains provisions to authorize Statistics Canada to ask Canadians' permission to deposit their individual census records at the National Archives of Canada for future research purposes. All of the stakeholders support this bill and none are calling for amendments.

From the outset, I want to thank Minister David Emerson for his leadership on this file. From the first time I briefed him on this issue, he understood the urgent need that Canada's genealogical, historical, medical and archival communities have for this information. His common sense approach has allowed this bill to come forward quickly in this Parliament with support from all quarters. He has shown a desire to get this matter taken care of quickly. I hope that all honourable senators will agree that we can move forward on this bill without delay.

Before I get to the specifics of the bill, I want to take a few minutes to explain why so many of us have been fighting for so many years to obtain the release of historic census records. The census is Canada's only record of every Canadian in their family groups. Up until 1998, individual census returns were regularly made available through the National Archives. In fact, over 300 years of censuses covering what is now Canada are stored and can be accessed in their entirety by anyone.

In 1998, though, Statistics Canada announced they would not be releasing any further census records to the National Archives. They took the position that the regulations in legislation governing censuses taken after 1901 prevented Statistics Canada from ever releasing the information to the public. As you can imagine, this announcement took many of us by surprise.

As I said earlier, over 300 years of Canadian census information was already available in the National Archives and there was no hint that the practice of sending individual census returns to the Archives would change. As a genealogist, I was concerned at the time that we would be losing important historical documents forever, but the politician in me thought that this was a mere legislative oversight that could be quickly rectified and that we could then quickly send everyone back to their research. How wrong I was.

The intervening six years have been filled with study, research, debate and negotiations by politicians, bureaucrats, genealogists, lawyers, academics, archivists and judges, both sitting and retired. For the longest time we were all focused on the question of what was the law governing those censuses and what contemporary law affects how we treat those documents.

In a nutshell, the research community felt that perpetual confidentiality had never been promised to Canadians and Statistics Canada was concerned that its regular assurances of confidentiality for decades had to mean something or the integrity of the census would be forever damaged.

There were two key studies done on the state of Canadian law on this issue. One was conducted by the Expert Panel on Access to Historical Census Records that was appointed by former Industry Minister John Manley. The panel, chaired by former Supreme Court Justice Gerard LaForest, came to the conclusion that there were no laws that prevented the release of historical census records. In his words:

...we are persuaded that perpetual confidentiality was not likely either assumed or intended by the lawmakers. ... while we find the legal situation ambiguous, we find no convincing evidence that Parliament intended to create perpetual confidentiality. We have come to the view that the release of pre-1906 records constitutes a particularly important precedent when combined with the fact that the release of the 1891 and 1901 census records occurred in concert with the 1983 Privacy Act. We further believe that the passage of time — 92 years in this case — is an important legal and moral consideration and that the release of census records after 92 years in no way violates the original intent of those who developed the census in Canada.

(1530)

The second legal opinion came to light as a result of the work of the Standing Senate Committee on Social Affairs, Science and Technology when it studied my private member's bill on this issue. In response to questioning from committee members, Chief Statistician Dr. Ivan Fellegi indicated that he had received legal advice on this issue and would be happy to give it to the committee to look at. One of the legal opinions was particularly important from my perspective. Ann Chaplin, a lawyer in the Department of Justice, took the time to try to balance two sections of the regulations governing many of the censuses taken in the early 1900s. One section stated that Statistics Canada employees were not allowed to disclose a person's individual census information, while the other section specifically stated that the individual census records would be kept in the National Archives of Canada. Ms. Chaplin noted:

The rational approach to the various pieces of legislation at play here seems to be one which would prohibit census workers from giving anyone access to individual returns but which would allow census information to be transferred to the Archives and, after 92 years, released in accordance with the Privacy Regulations.

There is no doubt, then, that from a legal viewpoint there is nothing to stop the government from releasing historic census records.

In January 2003 the government came to the same conclusion and released the 1906 census records to the National Archives. Shortly afterward it was put online, and since that time there have been millions of hits to the National Archives' Web site by those researching family roots or researching Canadian history. The central question remained, though: How should the records from future censuses be handled? After all, it made very little sense to go through this entire debate without also taking a serious look at how future censuses are handled.

When the government released the 1906 census, they also announced that they would introduce a bill to govern the release of census records, including those for censuses that have not yet been taken. That bill was introduced in the Senate and passed. We have already been through this exercise. Unfortunately, it was stalled at second reading in the other place in November 2003 when Prime Minister Chrétien prorogued the Second Session of the Thirty-seventh Parliament. The bill was not revived in the third session.

As I will outline in more detail later, there was not widespread support for the bill introduced last year. That bill would have reduced the access that researchers would have after 92 years for a further 20 years. Some of its contents may have threatened the historic record. The debate on whether to amend the bill caused delays in both the Senate and the other place.

In the year since the first government bill died, there have been substantial negotiations between the government and stakeholders about what a new bill should entail. I am happy to report that there has been compromise on both sides, agreement on both sides, and a new deal has been reached. I want to take the time to go over the various provisions for honourable senators.

Bill S-18 has three clauses that are easily explained. The first clause directs Statistics Canada to turn over the individual schedules for each census from 1911 to 2001 to the National Archivist on the ninety-second anniversary of each census. The National Archivist is then given explicit permission to grant access to this information, without restriction, to any researcher who wants to take a look. Indeed, I expect that shortly after this bill is passed we will be able to find the 1911 census online, alongside the 1906, the 1901 and other censuses that have already been posted online by the National Archives.

The second clause of Bill S-18 states that Statistics Canada will ask Canadians on each census, starting in 2006, whether they will give permission for their census information to be stored in the National Archives. Statistics Canada may then deposit the census information of Canadians in the National Archives only if that person has actively granted permission. If the person answers no to the relevant question on the census or if the question remains unanswered on the census, Statistics Canada will not have the authority to give the information to the National Archives and will not do so.

The third clause is for the purpose of review, which has become standard in so many bills. It states that not less than two years before the third census taken after this bill is passed, there will be a review of the section that governs future censuses. This section was inserted because of concerns raised by many researchers. They want to ensure that the census remains a viable historic record. However, it is conceded by everyone that to the extent that people refuse to allow their census returns to be sent to the National Archives, the quality of the census for research purposes is reduced. The review section allows Parliament to revisit this issue once we see clearly how Canadians will respond to the question.

As I indicated earlier, the government did introduce a bill in the last Parliament that was the subject of much debate, and many called for amendments to that bill. I think it is important to highlight both the similarities and the differences between the old government bill and Bill S-18 so that senators may understand the concessions made on both sides of this issue that bring us to the harmony that we have today.

The old government bill contained extensive provisions that would have allowed limited access to the 1911 through 2001 censuses after 92 years and unlimited access to the data after 112 years. Genealogists would have to sign various waiver forms and historians who wanted to do research after only 92 years would have to have their proposed work peer-reviewed first. This was despite the fact that until 1993 census data was routinely released after 92 years with no restrictions. When that complicated provision was introduced, genealogists and historians recoiled at the fact that an entire bureaucracy was being set up to trace their research. They could not understand why that had to be done. They also wondered what the magic of the extra 20 years was and whether there was any policy justification for these provisions.

I discussed this matter with Minister Emerson and department officials, and it became clear that the extra 20-year waiting period and the bureaucracy involved with it did not serve much purpose. In fact, the cost, time and effort of setting up such a bureaucracy would far outweigh any marginal benefit for those who were interested in privacy issues. As a result of these discussions, the government agreed to remove from the bill the extra 20-year waiting time and the resulting bureaucratic nightmare.

As was the case with the old bill, Bill S-18 includes provisions that will allow Canadians to determine whether they will allow their own census information to be deposited at the National Archives. This clause causes significant concern within the genealogical and historical communities. Many are worried that the integrity of Canada's historic record would be unnecessarily degraded if such a measure were passed. Over the last number of months, the potential effect of this section and the reason for its inclusion have been the source of significant discussions between genealogists and historians on the one hand and Statistics Canada on the other hand.

By and large, genealogists and historians understand the two key reasons for including this section in these amendments to the Statistics Act. First, this is not a complicated issue. Canadians can easily understand the choices they are being asked to make and the consequences of their actions. In the end, this is the personal information of Canadians who have the right to determine what happens to that information about their lives. It was in this spirit that the Personal Information Protection and Electronic Documents Act was passed by Parliament to protect Canadians' privacy.

Second, Statistics Canada must ensure an extremely high level of privacy in order to guarantee that there is almost complete participation in the census. Stats Canada genuinely felt that the 92-year waiting period was not a sufficient level of privacy to ensure continued full participation in the census. The census provides the backbone for Canada's transfer and equalization payments to the provinces and the modeling to predict the consequences and costs of taxation policies and future Canadian demographics, which allows for proper planning of education and health care services across the country. Complete participation by Canadians in the census is key to ensuring that all these basic government functions are carried out to the highest standards.

(1540)

There is no doubt that to protect the integrity of the census Statistics Canada felt that it needed to ask Canadians directly about the future treatment of their census information. Over time, genealogists and historians have come to understand why Statistics Canada has insisted on this kind of privacy protection for future censuses.

Statistics Canada has made two important concessions on this issue that have given the research community enough reason to support this bill. First, Statistics Canada has agreed to help ensure that as many Canadians as possible say yes to the release of their census information. Both Chief Statistician Ivan Fellegi and Minister Emerson have agreed that in order to ensure as many Canadians as possible agree to deposit their census schedules in the National Archives they will launch a large public advertising campaign to encourage Canadians to say yes. They have said they feel it is important to the country that everyone say yes. I take them at their word and am looking forward to Canada's campaign to have everyone say yes to the historic census.

Second, the government has inserted the third clause to this bill at the request of the research community. This clause mandates a parliamentary review of the effect of the requirement that permission must be granted before an individual's census return is given to the National Archives. The truth is that no one knows how Canadians will respond to this question. We do not know if 20 per cent or 89 per cent will say yes. We have no idea. The other thing that we do not know yet is what kind of a problem that would create for future researchers.

About a month ago, I asked Dr. Chad Gaffield, a professor at the University of Ottawa's Institute of Canadian Studies and a member of the expert panel that was appointed by John Manley, what level of opting out would create a problem for the historic record. He said he did not know. He said it would depend entirely on whether it was a random group or a certain age group, race, gender, religion or community that opted out. If 99 per cent of Canadians opted into the National Archives but all of Prince Edward Island said no, for example, that would cause great damage to the historic record.

By allowing for a review of this section after two censuses have been taken, the government is agreeing to take another look at the matter when there are real-life statistics that can be used to deal with the issues. Any attempt to solve this matter before that may be fruitless because the debate would be taking place in a vacuum. As I noted before, no one knows how Canadians will react to this issue, and it is best if we see how things pan out first before we make a final decision.

Honourable senators, it has been a long and hard battle, but it is one that I think will have great benefit to Canadians. I can say with confidence that for generations to come Canada will have the benefit of historic census records to help guide researchers. I can also say that Statistics Canada has stood on guard for the integrity of the census, and that integrity is not compromised by this bill. A balance between privacy and information has been achieved here, and all parties in this debate should be lauded for their hard work and dedication to their cause.

In closing, I urge all senators to vote for this bill and to ensure its speedy passage through this place. The Canadian medical community, historians, archivists and genealogists are counting on it.

Hon. Lowell Murray: Honourable senators, I do not intend to intervene at this stage but will do so perhaps at third reading, assuming the bill is referred to committee.

For the record, I would ask the sponsor of the bill to confirm that the only opting-out provision relates to personal information that would identify someone as an individual. To use the example that Senator Milne raised, if every individual in Prince Edward Island opted-out, then those individuals could not be identified by name. However, all the demographic information will still be on file. The collective data on population, whether a person is male or female, their ancestry, ethnic origin, religion, and perhaps their profession and income will be there. The only thing that will be closed to researchers is information relating to particular individuals, identified individuals, if those individuals choose not to have it made accessible.

Senator Milne: The honourable senator is are quite correct. The accumulated data would be available for all of Canada, so there is no threat at all to the integrity of the census as it stands for the entire country.

There would be a threat to trying to identify individual Canadians, 92 years from now, and track them through their family groups. There would be a threat to tracking demographic movements of Canadian families, of groups of people and their medical histories. I am quite sure that medical genealogies will become even more of a tool in the future than they presently are, as we heard today on the debate on juvenile diabetes.

Senator Murray: The information will be open to everyone. Ninety-two years from now, I or my descendants will be able to search Senator Milne's ancestry, will they not?

Senator Milne: Absolutely, because I intend to say yes. Now, if my honourable friend intends to say no, his descendants will not be able to research him.

Senator Murray: I am thinking about it.

Hon. Gerald J. Comeau: I move the adjournment of the debate.

Hon. Madeleine Plamondon: Does the honourable senator have the approval of the Privacy Commissioner?

Senator Milne: I have not spoken directly to the Privacy Commissioner, but I have been led to believe that she approves of this bill. I know that she has seen it and has read it. I have not heard from her directly but through intermediaries. Dr. Ivan Fellegi, the head of Statistics Canada, also approves of this bill.

Senator Comeau: Senator Milne just said that she had the approval of the Privacy Commissioner through someone who spoke on behalf of the Privacy Commissioner. This is the type of information that should come out at committee because I think we are into third- or fourth-hand references. I am quite sure the Privacy Commissioner, based on how Senator Milne just responded, would want to clarify the positions of her predecessors who expressed extreme misgivings about some of the provisions of what were then even more stringent bills.

I assume that Senator Milne wishes to bring the Privacy Commissioner before the committee, as well as the Chief Statistician, who seems to have also swallowed himself whole.

Senator Milne: I would never ask Senator Comeau to accept my word on anything, and I look forward to hearing them at committee.

Hon. Serge Joyal: Honourable senators, I should like to make a brief speech on Bill S-18 today so as not to delay further study. I know Senator Comeau had just moved the adjournment, but if he would allow me to speak for this side, I would be ready to proceed now.

Senator Comeau: It has been the normal practice that this side has the prerogative to adjourn the debate. Obviously, I leave it up to the house.

The Hon. the Speaker pro tempore: Senator Comeau will have 45 minutes when he rises to speak on the bill. Is it agreed, honourable senators?

Hon. Senators: Agreed.

(1550)

Senator Joyal: Thank you, Senator Comeau. I understand you reserve the full right of the opposition to speak on this bill. It is just that my remarks might help the honourable senators, and especially Senator Milne, in their study of this bill.

First, I would like to commend Senator Milne for her persistence and dedication to this issue. She will recollect how many times this bill has been the object of discussion. However, since its first inception, there is a new situation in Canada which I think we should take into account when we study this bill. I think that Senator Comeau and Senator Plamondon have put their fingers on it. It is in relation to the Privacy Commissioner and, of course, the adoption by the United States, our friendly neighbour, of the Patriot Act.

As you know, Statistics Canada entered into a contract with Lockheed Martin Canada, which is a subsidiary of the Lockheed Martin American firm that we all know. According to the Patriot Act, any information that an American company can retain, either on American soil or abroad, is susceptible to being the object of a court order according to section 215 of the Patriot Act, and that company has no other choice than to provide the information. Moreover, when there is such a hearing of a request in the United States, it is secret, so that such a matter could really go before a court without any publicity or publication.

We all know the information that is contained in the census form — your religion, your race, your place of birth, your marital status, just to name a few. Let me depict a case. Let us say that you are Muslim, a practising Islamic. You were born in the Middle East or northern Africa. Third, of course, you are of Arabic decent, and fourth, your marital status is common law or gay marriage. It is legal in Canada for 85 per cent of that particular population to marry now, according to decisions in the Canadian court. We all know that. My friend Senator Comeau is from Nova Scotia, which is the last court to have ruled upon this matter.

In other words, if that information is accessible to Lockheed Martin, at a point in time, Lockheed Martin could be under subpoena in an American court and have no other choice than to provide information on all Canadians who are Islamic, Arabic, born wherever in the world, and, of course, on their marital status.

Therefore, honourable senators, my concern is not a theoretical one. The newspaper report of October 30 was a reprint of the report by the B.C. Privacy Commissioner, Mr. David Loukidelis, and I quote:

There is no way to prevent the long arm of U.S. anti-terrorism legislation from extending into Canada and plucking out otherwise confidential information about individual Canadians, B.C. Privacy Commissioner has concluded.

It is a reprint from The Globe and Mail and Le Devoir of the same day.

The Privacy Commissioner of British Columbia is advising the Canadian government to take some steps to protect the privacy of Canadians and, of course, the information that will be given to Statistics Canada and, according to this bill, that Statistics Canada in due time will make available to all Canadians.

My preoccupation, too, comes from the report of the Privacy Commissioner that was tabled today. Earlier on in our proceedings, the Speaker tabled the annual report of the Privacy Commissioner, and I would like to read to you from page 49 of that report two paragraphs on what the Privacy Commissioner says about cross-border flow of personal information. That is the title, "Cross-border Flow of Personal Information," and I quote:

On the subject of disclosure, a number of programs and activities established by federal government institutions and agencies provide for the disclosure of personal information about Canadian citizens and residents to departments and agencies of the United States government. During this fiscal year, the office completed an examination of agreements, arrangements and memoranda of understanding between Canada and the United States that include provisions for the sharing of personal information. Our review found that many of the sharing agreements were deficient in terms of containing adequate privacy protection provisions.

The last paragraph states:

The cross-border flow of personal information raises serious privacy risks relating to the jurisdictional differences affecting the protection of personal information, the security of personal information in transit and the adequacy of legal instruments governing the management of the information shared. Issues related to the transborder flow of personal information will be a key area of review for the office —

— that is, the Office of the Privacy Commissioner —

— during the next fiscal year. To this end, we are conducting an audit of the transborder information-sharing activities of the newly constituted Canadian Border Service Agency, CBSA.

Senator Milne, again I have the greatest respect for the work and dedication that you have expended on this matter. However, I want to conclude, honourable senators, by saying that I think it would be advisable to hear from the Canadian Privacy Commissioner at committee stage on this bill. In the article of October 30 from which I quoted earlier, "They are expecting an answer from the Canadian government." Let me find where I read that. It says that we will get the answers on what is the position of Canada in respect of this argument.

I do not want to delay the proceedings, but in this article that was published on page A13 of The Globe and Mail — I could give it to you — it says quite clearly that the Canadian government will come forward with a formal comment to the B.C. Privacy Commissioner, David Loukidelis, because the commissioner studied that issue extensively. It is the most comprehensive report that is available in private hands right now. I know many senators on both sides of this chamber are very concerned about the flow of information, because many Canadian companies now subcontract with American companies.

I mention now the CIBC because it is mentioned in the article; I do not want to promote any bank, but many private companies subcontract, for instance, salary slips, management of pay and so forth. All that information is immediately available if American authorities want to plug into it, and we are not even informed that they have requested to plug into it.

This is a very serious issue. Again, I do not want to delay this bill. However, I think it could be a helpful exercise because when we review the Canadian anti-terrorist legislation sometime down the road, this will be an important part of that review, as well as exploring how we could prevent American companies from following the Patriot Act in this fashion. The B.C. Privacy Commissioner was suggesting that there should be very severe penalties for such breaches of privacy, such as one year in prison and $1-million penalties and so forth. In other words, there is a way to address the problem, and that should be done, in my opinion.

If we are to move forward and make more information available, it should be done in such a way that when a Canadian citizen files his census form, as I do myself, and when you cross borders and you are asked for personal information, you will know that at some point in time, by just plugging in your passport number, they will know everything: what is your religion, where you came from, where you were born. This is already on your passport in any event, but they will also know your marital status, and so on. If they decide to be tight at the borders, then that is it. I think we should know now what the name of the game is, and how we want to deal with it.

I know that this is not your objective as the promoter of this bill. However, you want this bill, too, and I sincerely would like you to have it, certainly, and all the researchers and university people; but there is an element of reality that must be taken into consideration here. We have to be very conscious and to address the situation in the proper shape and form if we want to do our job properly here, which is to be concerned about minority rights and the protection of the privacy of Canadians.

Senator Milne: Would Senator Joyal accept a question? I do not believe, if I can make a bit of a preamble, that Statistics Canada has ever leaked anything whatsoever out of any of our census forms. They have been most meticulous in guarding them; they have been extremely, perhaps overly, meticulous in guarding them. If I should happen to be a Muslim, I cannot see what possible benefit that would be to anyone at the border in the United States when that information is released 92 years from now.

(1600)

I believe you mentioned that Lockheed Martin was hired to help with the 2004 test census that Statistics Canada did. Still, the information that came in was proprietary information and was not Lockheed Martin's information. I have the understanding that Statistics Canada will not hire them again to do that sort of thing.

Senator Joyal: I thank the honourable senator for raising this point. I quote from the article in Le Devoir, which states:

[Translation]

Mr. Loukidelis pointed out that even Statistics Canada had entered into a contract with Lockheed Martin Canada — a Canadian subsidiary of an American company — for the development of software to process census forms. The information would be managed by Statistics Canada, however.

[English]

It is right that it is being managed by Statistics Canada. I do not dispute that at all, but as I said, if Lockheed Martin, or the mother company in the United States, is subpoenaed in court and receives an order from a federal court to release the information, they are confronted with two decisions: either comply with the American court order or breach Canadian law. We have to be aware that when a contract is signed with an American company, there are severe penalties for breach of the contract or the commitment not to disclose information. That is what B.C. commissioner Mr. Loukidelis is recommending, to ensure that we tip the balance in favour of the privacy of Canadian citizens rather than the good standing of the American company.

This is an issue that must be addressed, and I totally agree with the honourable senator. It is important that this be on the record because when the Privacy Commissioner Stoddart appears before us, we will have given her a signal today that she will have to prepare herself accordingly so that honourable senators can question her and follow up on this matter.

On motion of Senator Comeau, debate adjourned.