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EXTRACTS FROM HANSARD
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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 15
Wednesday, November 17, 2004
The Honourable Dan Hays, Speaker

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ORDERS OF THE DAY

Statistics Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Losier- Cool, for the second reading of Bill S-18, to amend the Statistics Act.

Hon. Gerald J. Comeau: Honourable senators, I would first like to acknowledge the work of Senator Milne and her legion of census patrons who have mounted an aggressive and capable campaign to have confidential census records made public. I do not doubt their sincerity and their belief in their campaign. I also do not dispute that census records are a valuable source of information to people who wish to trace their ancestry. One cannot be faulted with the desire to trace one's background and there is no doubt that open access to census records is valuable to historians.

I acknowledge the value of research data but, in turn, I would also like the proponents of Bill S-18 to recognize that parliamentarians do have a duty to consider the implications of legislative changes. My role is not to rain on their parade, but to express legitimate concerns. I ask to be given a fair hearing without being accused of not being a proud Nova Scotian.

The purpose of Bill S-18 is to repeal the secrecy provisions, section 17 and 18, of the Statistics Act, to allow for information in the census no longer to be confidential 92 years after the census is taken. Allow me to read into the record the relevant provisions of section 17 and 18 of the current Statistics Act which is to be repealed. The title of these two sections, written right into the act, come under the heading "Secrecy." Section 17(1) has the margin description, "prohibition against divulging information."

Section 17(1):

(a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; and

(b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization.

(1450)

Section 18 of the Statistics Act, also to be repealed, has the margin description, "Information is privileged." It reads:

18.(1) Except for the purposes of a prosecution under this Act, any return made to Statistics Canada pursuant to this Act and any copy of the return in the possession of the respondent is privileged and shall not be used as evidence in any proceedings whatever.

(2) No person sworn under section 6 shall by an order of any court, tribunal or other body be required in any proceedings whatever to give oral testimony or to produce any return, document or record with respect to any information obtained in the course of administering this Act.

Most of us in this chamber have probably at one time or another filled out a census form. I would like to read into the record the statutory promise written right on the census form itself. It states:

As Canada's national statistics agency, Statistics Canada uses census data for producing statistical tables, analytical reports and for selecting samples or following up responses for some of our surveys. These uses are strictly for statistical purposes and no one outside the agency can have access to your identifiable information.

Again, right on the form it says:

By law, Statistics Canada must take a census every five years and every household must fill in a census form. Also, by law, Statistics Canada must protect the confidentiality of the personal information you provide. Our employees, including census takers, are personally liable to fines or imprisonment should they break the confidentiality of your information.

This form is signed by Ivan P. Fellegi, Chief Statistician of Canada, who, we learned yesterday from Senator Milne, now supports the release, in spite of his signature on the form.

Further down the form it says:

Confidential when completed.

The last page of the census states:

The law protects what you tell us.

The confidentiality of your census questionnaire is protected by law. All Statistics Canada employees have taken an oath of secrecy. Your personal census information cannot be given to anyone outside Statistics Canada — not the police, not another government department, not another person. This is your right.

Your census questionnaire will be retained in accordance with legislative requirements and will be stored securely.

In spite of all of this clear, concise, unambiguous wording, Minister David Emerson, in his promotional package forwarded to us, states:

This enactment will remove a legal ambiguity in relation to access to census records for the period 1911 to 2001 inclusive and to future census records starting with the 2006 Census.

In spite of what we see in the act and on the census forms, Minister Emerson says it is quite ambiguous as to whether or not this information was protected.

Minister Emerson admits in the promotional package that:

Justice Gibson of the Federal Court in his June 25, 2004 decision ruled that the care and control of the 1911 Census rests with the Chief Statistician. Furthermore, Justice Gibson suggested that the balance between privacy rights of Canadians and public access was a policy matter for the government to address.

The court ruling means that the government needs us — parliamentarians — to authorize the release. The purpose of Bill S-18, therefore, is to break the promise of confidentiality made by our predecessors — a promise made to our grandparents, parents, and to us in more recent years.

The U.K. and the U.S. are often cited as countries where the census is released after a certain number of years. This is true, but there was no legislative promise to keep them permanently secret. The citizens of these countries knew what the stakes were when they responded to the census.

Proponents of this bill also argue that those who responded 92 years ago have raised no complaints. There is little doubt that most of these people are deceased or too old to follow this debate, but it is a rather disrespectful argument to be making at this point. Should one's right to privacy be disrespected because one is dead, old or sick?

For those honourable senators who may not be aware, I would like to draw attention to certain questions in the 1911 census regarding family members. This is one reason we should consider seriously before opening up this census. This was a different age.

One question was: Is the person deaf or dumb? This census was taken by neighbours who visited houses and wrote down their impressions of the people there. Other questions were: Is the person crazy or a lunatic? Is the person idiotic or silly?

As I say, that was a different age, but if we do pass this bill, we will be able to access those old census forms and find out if Aunt Matilda was in fact silly. That information would be right in the census form. We always thought she was a little bit batty, but now we will know for sure.

Other questions on the census form at that time included: Name your race or tribal origin and religion. Your tribal origin? Give me a break.

Senator Joyal raised the issue yesterday of such information getting into the wrong hands and Senator Milne responded, quite rightly, that one's religion is irrelevant after 92 years. However, if we are breaking the promise after 92 years, why not break it in a few years, after ten years or five years? What is stopping us at that point? How will the people who come after us act once we have established the principle that promises can be broken?

Further to the concerns stated by Senator Joyal yesterday, I would like to read excerpts from an article in The Boston Globe of November 10. The article is entitled "Census official seeks to reassure rights groups on privacy concerns." This is very important. The subtitle is "Arab-Americans data was shared." It reads:

Census officials sought to reassure minority and civil rights groups yesterday that the agency keeps names, addresses, and other personal information confidential from other government departments. Some critics remain skeptical.

Further on it says that the Census Bureau shared population data with the Homeland Security agency. Officials at the headquarters said that if there is any perception that this kind of information is shared, it can be an extreme problem to the bureau. It goes on further to say:

But hearing that data are being shared with an agency like Homeland Security's customs bureau "scares people the most" and may lead some to stop answering census surveys...

Confidentiality of census data is of paramount importance...

Further on it says:

Arab-American groups contend that the information sharing undermined the public's trust in the Census Bureau.

The article really speaks for itself.

The Chief Statistician of Canada finally gave up the fight to maintain the confidentiality provisions of the census, and this is understandable. The government has twice tabled a bill to break the promise. Justice lawyers have reversed themselves completely in their legal advice and now apparently suggest that the legislative confidentiality promise might not stand up in court.

Honourable senators, there are no voters in cemeteries, and therefore Minister Emerson, like his predecessor, issued a press release in support of breaking the promise. What else could the Chief Statistician do? Given that reality, the Chief Statistician is no doubt trying to salvage an illusion of credibility of the confidentiality promise. He hopes that the consent provisions of this current amendment whereby Canadians can request that future censuses not be divulged without their consent might encourage Canadians to keep faith in the credibility of the census.

He is dreaming in technicolour, honourable senators. Once we establish the principle that a promise of confidentiality is only as good as the current crop of parliamentarians, can we expect Canadians to believe in other false promises?

Parliamentarians should be mindful that the Chief Statistician's concern is not with the impact on our image as breakers of promises. His concern is with the impact that this breach will have on the integrity of future census data. Will Canadians respond truthfully and helpfully if legislative promises of confidentiality are worthless?

(1500)

To use an analogy, imagine the credibility that an official of the witness protection program would have if parliamentarians were to start fooling around with the secrecy and confidentiality of that program. Similarly, are we not damaging the Chief Statistician's primary public policy tool, namely, the promise of privacy?

There is no question that Parliament is, supposedly, supreme. We can retroactively break promises whenever we want; but do we want to? I am the product of a time and a culture in which one's promise is considered sacred, even the promise of a politician. Senator Milne stated yesterday that she had been informed that the current Privacy Commissioner apparently now supports breaking the promise. We should seek to learn why she has taken this position.

The previous commissioner, however, had problems with the implications of this bill. Unlike the Chief Statistician, his concern was not with the negative consequences of broken parliamentary promises, but rather with the impact on the privacy of Canadians.

I look forward to learning how the current Privacy Commissioner can both protect privacy and yet support breaking a promise of privacy. If she supports the release at 92 years, would she support the release at 90 years, or 50 years, or 20 years? Where does she draw the line? These are the types of questions to which our Privacy Commissioner needs to respond, if in fact the person who reported to Senator Milne was correct in saying that the commissioner now supports the release of this data.

The Department of Justice could not care less whether we break our promise. Their interest is in making certain that Parliament passes amendments that will legally absolve the government of the breach of faith.

Obviously, family historians would have no cause to be concerned with the negative implications of parliamentarians breaking promises.

Therefore, it is up to us, as parliamentarians in this chamber, as well as those in the other chamber, to assess the consequences of breaking our legislative promises to Canadians.

We wonder why Canadians do not trust parliamentarians. Would we not somehow feel violated if our doctor suddenly decided that our private medical files are to be opened to the public? Would we not feel violated if our lawyer started breaking client confidentiality, or if our priests started to break the silence of the confessional? Why should we hold ourselves to a lesser standard of trust than doctors, father confessors and lawyers? Why should we accept that our promise is only as good as the current group sitting in this place today? Why is it that our promises are not worth the paper they are written on?

The premise of Bill S-18 is that your privacy dies with you, but this bill goes way beyond breaking promises made to the dead. In fact, as of 2001, there were 77,000 Canadians aged 92 and over who were still living when their census was released. Furthermore, this bill breaks the promises to all Canadians living today who have ever filled out a census return.

Bill S-18 provides withholding consent to future census returns. However, this withholding consent is worthless if we establish the principle that parliamentarians can break promises at will and simply retroactively break the consent provisions in the future. Why else would we be reviewing this provision over the next few censuses, which is written right into the law and which is proposed in the package sent to us by Minister Emerson?

Furthermore, the consent provisions for censuses after 2005 may be quite difficult to administer. Only if consent is given would the person's information be transferred to the archives after 92 years. However, it is typical in most dwellings for only one person to complete the form for the entire household, raising questions as to who had and had not given consent to either release or not to release. The one signing the form is signing on behalf of others.

Lawyers from the Department of Justice are now of the view that the legislative promises of confidentiality under the current Statistics Act might be broken by the courts. This is the same group of lawyers who provided legal advice to the government on the Pearson bill in support of taking away citizens' rights to their day in court. It is the same group of lawyers who joined Allan Rock in an eight-year political vendetta against the former Prime Minister. Their track record leaves a lot to be desired.

Honourable senators, should we roll over and accept the Justice Department's opinion that the courts can break our parliamentary promises? Is this the pitiful excuse we offer for our breach of trust? Are we, as parliamentarians, ready to accept that judges are so powerful that we have to cower before them and break our word because these judges might make us do it? Are they so much above Parliament that this is what we have come to? Will we say, "The judges made us do it"? I would suggest not.

I read the confidentiality declarations earlier. There is no room for doubt at all. If Department of Justice lawyers now suggest that the wording in the act was not sufficiently clear, then let us make it so. Let us not hide behind the fear that the courts might misinterpret the meaning of confidentiality and cause us to cower under their watchful gaze. If we as parliamentarians want to break the promise to Canadians, let us not do it meekly and blame the courts. Let us do it out of conviction.

For those of us who may not have reviewed the testimony at committee when we last looked at this bill, allow me to quote from a few comments made by some of the experts.

The previous Privacy Commissioner said:

This bill, if passed, will violate a promise repeatedly made to Canadians by successive governments and eliminate existing privacy rights retroactively.

He went on to say:

For censuses taken after 1918, there is neither ambiguity nor inconsistency. The 1918 Statistics Act stated explicitly that the material would be kept confidential. That prohibition has been repeated in every Statistics Act since.

Still quoting from the testimony of the Privacy Commissioner:

Breaking the promise of confidentiality made to Canadians could seriously erode public trust in undertakings made by the Government of Canada. Some people might say that the promise of confidentiality will still hold for 92 years after the census. However, the rest of us might well wonder. If a commitment made in perpetuity can in fact be broken after 92 years, what makes 92 years such a magic number? Might a future government next time break promises after 50 years or 25 years or 10 years?

In referring to Canadians, the Privacy Commissioner said:

We have always been able to assure them that the government has undertaken to respect the confidentiality of their answers and that Statistics Canada has a very good history of protecting confidential information.

We will not be able to give any more such assurance in the future if this bill, as it is presented, is passed.

If people cannot trust that confidential information will remain confidential, they will lie. Wouldn't you? It is common sense.

...I believe that privacy will be the defining issue of this decade.

Let me refer to the Chief Statistician, who said:

Would I be more comfortable as Chief Statistician if the aspect of confidentiality was protected forever? Of course, I would.

He went on to say:

The compromise goes as far as I dare to go. No one knows how the public will react. However, what I do know is that trust is a very fragile commodity. This is as far as I dare to go. Am I concerned? Yes, I am.

Honourable senators, I am not making up these remarks. They are on the record and you can check them, should you choose to do so. It is in the testimony of the committee in the previous Parliament and these are the professionals. These are the recommendations and comments that they made at that time.

Where will our disregard for privacy end? Which files will be opened next? Will it be student loan applications, application information for immigration or refugee status, EI benefits, passports, jobs, firearms licence applications, income tax or pardons? Where will it end?

(1510)

The fact that legislation is needed to break the promise is evidence that the promise was in fact made, if any further evidence should be needed. The government needs our approval. To absolve itself from breaking the promise, the government needs Parliament's permission. The government might well be open to libel if it did not have this permission from us.

Honourable senators, I can understand that some may not share my passion for keeping promises, legislative or otherwise. The release of private and confidential information, in their view, may be more important than keeping our word. However, I should like to remind honourable senators that statistical information is only as good as the information that is gathered. I fear that many Canadians, when they become aware of this bill, will provide information as worthless as our promises. Do we not invite false promises to our false guarantees? I would urge honourable senators to carefully consider the consequences.

It is true that a well orchestrated lobby has been mounted to seek your support. The proponents are articulate, and their commitment is strong. I know, since I have been on the receiving end. I also know I am not popular with this very articulate group of historians and genealogists. Also, little opposition has been shown to this bill. I wonder, however, how Canadians will react when they eventually find out what is actually at stake here. What will happen when Canadians learn that this is not only breaking a promise made to dead people but also breaking a promise made to those still living today? Will they accept and forgive?

This bill is not necessary to provide access to legitimate users. A compromise had been made whereby access could be provided to families of deceased census respondents and responsible historians. I believe it was mentioned yesterday that some people would like to be able to access these files in order to find out if there is any kind of medical situation in their history, and I think an honourable compromise had been offered. However, this was rejected out of hand.

The current legislation could also mimic what is extant in the United Kingdom and the United States. However, the U.S. and the United Kingdom did not make promises that their information would be kept in confidentiality forever. The people who signed those documents, therefore, knew exactly where they stood and thus this question of confidentiality does not arise.

These compromises were rejected out of hand, and it was all or nothing, resulting in this current bill. I would urge honourable senators to seriously consider the stakes when we start fooling around with retroactive legislation. There was no "best before" date when the Statistics Canada Act was enacted. Unlike milk, our promises should not sour with time. Do we really want to be parties to breaking our faith with Canadians? Could we, as parliamentarians, ever hope to expect or have the trust of Canadians with our word in the future? I will let you be the judge.

Hon. Lorna Milne: Would the honourable senator accept a question?

Senator Comeau: Absolutely.

Senator Milne: My question is in the form of a letter that I received from Dr. Fellegi this morning. I wonder if the honourable senator would like to hear what is in the letter.

Senator Lynch-Staunton: That is not a question.

Senator Milne: It is not long.

Senator Comeau: That is not a question.

Senator Milne: The answer to the question can be no.

Senator Comeau: No. This is work for the committee. If Dr. Fellegi wants to swallow himself whole, as I said yesterday, or has thrown in the towel, fine, by all means. He is an employee of the Government of Canada. He obviously knows who signs his cheques at the end of the week. Let us get this to committee.

Senator Milne: Very well, I will move that this bill be —

Hon. John Lynch-Staunton: Just a moment. I would like to move the adjournment of the debate.

On motion of Senator Lynch-Staunton, debate adjourned.