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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 43
Wednesday, March 9, 2005
The Honourable Dan Hays, Speaker

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Orders of the Day

Statistics Act

Bill to Amend—Third Reading—Debate Continued

On the Order:

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

Hon. Gerald J. Comeau: Honourable senators, this may well be the last time I get to speak on this subject, and I must admit I am disappointed that the sponsor of the bill did not deem it important enough to speak at third reading. The deputy leader might indicate when and if she intends to defend this bill, or if she is so confident that it will be rubber-stamped by the majority that she does not even need to bother to speak at third reading.

In the Census Act and on the census forms themselves, there is clear, unambiguous language that the responses will be kept confidential. I will not go into the whole subject, but it is worth repeating what is on the form. I quote:

...by law, Statistics Canada must protect the confidentiality of the personal information you provide. Our employees, including census takers, are personally liable to a fine or imprisonment should they break the confidentiality of your information.

This is signed by the Chief Statistician, Ivan Fellegi. This is repeated again at the end of the form. I will not bother to go into the relevant sections of the act, which is now in place. The secrecy provisions are there, and these are to be repealed in Bill S-18, the so-called breaking of the promise.

Mr. Fellegi appeared before the Standing Senate Committee on Social Affairs, Science and Technology on February 24, 2005, where he informed us that he has now decided to support the breaking of the promise. I asked him how he could justify this change in position. His pitiful excuse was that he had received advice from the Department of Justice Canada that the promise might not stand up in court. Suddenly, Justice Canada informed him that it had changed its perspective and that his promise might be challenged in court. He therefore took the advice of Justice Canada, and he did a complete reversal from what had been the department's position earlier. Mr. Fellegi now expects Canadians to trust his future written promises: Trust the government; we will have your best interests at heart. Disregard the fact that we have just broken faith with everybody who has ever filled a census form since 1918. We are from government. We are here to help.

The pitiful excuse was that if the promise is not broken, this might go before the court, and the court would break our promise for us. This is to suggest that the courts are above Parliament. Parliament, therefore, is no longer supreme. The courts can break a confidence between Parliament and its citizens. He explained that he is not a lawyer, and he can break his promise because Justice has reversed its position. He may well hide behind his fear of the courts but can we, as Parliament, be reduced to breaking promises because of our fear of the courts. Regarding his advice from Justice Canada, these are the very same lawyers who drafted the infamous Pearson bill, which would have denied Canadians their right to seek remedy in the courts.

On to the second witness who appeared before the committee, the Privacy Commissioner of Canada: One would have hoped and expected that this office would be the last line of defence for the privacy of Canadians. Finally we would have a champion of privacy rights, ready to stand on guard for our privacy. Wrong. Her area of concern was the so-called consent provision of Bill S-18. She ignored or did not even bother to reflect on the breaking of the promise. In response to my question, she responded:

I was drawing to the honourable senator's attention the operational challenge of obtaining consent from Canadians. That is our contribution to this particular initiative.

She was not referring to the breaking of the promise, the consent provision.

I asked very specifically about breaking the promise. My question was:

Why does it become historical after 92 years? Why is that the magic number? Why is it not 50 or 25 years? At what point would you say that a document that was not to be released would become releasable?

(1420)

The following is the response of the official responsible for the protection of privacy of Canadians, the person with the sacred trust of a very high office, an officer of Parliament whom we appointed and rely on to protect the privacy of Canadians. Ms. Stoddart replied: "That is obviously an arbitrary date." That is a direct quote.

In other words, she accepts the premise that in fact a promise can be broken. Confidential information on Canadians can be made available and it is simply an arbitrary opinion as to when the promise is no longer valid. This is supposedly the defender of Canadians against the prying eyes of the state in our private lives — the person who guards against release of our private information in supposedly secure state archives.

Her biggest concern is with the consent provisions of this new piece of legislation. The consent provision is in fact another promise; we will again make another promise that we will hope this is confidential.

Some will suggest that I am being alarmist by suggesting that the privacy of Canadians is compromised by breaking the promise of confidentiality, but the Privacy Commissioner herself justifies breaking the promise:

I am concerned by that, Senator Comeau, but in being concerned you have to look at what is the remedy to these kinds of concerns, and what are a whole series of public issues that have to be weighed.

This is akin to saying that we can break faith with Canadians for the greater good; the end justifies the means. One might even say a few eggs have to be broken if you are to make an omelette.

Someone suggested that this is Canada. Canadians have nothing to fear. We have the safeguards, the Charter protection and so on. Go and explain that to Maher Arar. Review the file on what happened to reporter Juliet O'Neill. Let us ask those who have been held in custody by ministerial security certificates. Review the file on the eight-year vendetta against the former Prime Minister.

Let us not forget that these census files hold extremely sensitive and private information on people's nationality, ethnicity and religious origins. Think of the bonanza that would be in the hands of gung-ho security people.

Am I wrong to raise the alarm? On the issue of the consent provision, which was the section of interest to the Chief Statistician and the Privacy Commissioner, the issue I raised at committee was with regard to the person filling out the census response on behalf of family members. The census form basically asks someone to answer on behalf of the rest of the family. The Privacy Commissioner responded:

The question of operationalization, putting into operation these consent provisions, is a challenging question and we have raised these issues with Statistics Canada.... We are in new territory.

She has raised the alarm, yet supports the bill. This is our Privacy Commissioner; this is our officer of Parliament. It is pretty sloppy.

Here is what Mr. Fellegi had to say on this issue:

If you are answering on behalf of other people, please consult each person.

This is what he says will be on the form. The next question on the form asks: "Does this person agree?"

Picture this. We have dad filling out the census form. He goes to his wife to seek her consent and she says, "Yes, I consent." He goes to the 12 year old and says, "Can I report on your behalf?" The 12 year old says, "Yes, of course." He then goes on to seek the consent of the three year old. The three year old says, "Yes, dad, I give consent on my behalf."

Who is writing this stuff? This is absolutely plain awful.

I would ask senators to seriously consider the integrity of the future census responses, given the manner in which we are handling our promises of confidentiality, and the sloppy preparation of future census consent provisions.

Will Canadians not be justified in questioning the current promises in this new bill given our shabby treatment of the promises of the last bill? Will Canadians not be justified to think twice before they respond candidly and truthfully to private questions about their religion, ethnicity and national origins? Think about it.

These forms were meant initially to provide information to planners, to people who distribute money throughout Canada, to determine which groups we should be paying more attention to. If the integrity of the census response is under question because we can no longer trust the Chief Statistician, the Privacy Commissioner and ourselves to not break the promise, what kind of responses will we get? In the old days we used to call it GIGO, referring to computer language for "garbage in, garbage out."

Canadians would be entirely justified to sue the government, in my view, either individually or by class action when their private census records become public. If I were a lawyer, I would be seeking out those individuals right now. There are thousands of them still out there, alive and well and, in my view, very willing to sue the government when this information becomes public.

The bill is not completely negative. There are some good intentions in this bill, such as that, henceforth, the availability of Canadian census information would be more in line with what other countries provide in terms of releasing their census information after a certain number of years. Countries such as the U.S., Great Britain, Australia and others do in fact after a number of years release their census records because they never had a "forever" provision in their legislation to protect them.

I propose an amendment that would allow keeping the promise made over the years to Canadians who signed the forms between 1918 and 2004. It would allow Mr. Fellegi to keep his promise and the promises of his predecessors. It would eliminate the potential breach of faith with Canadians over all these years, and after 2004 the census forms might be released, depending on the consent provisions, which are still, as I suggested earlier, quite iffy, given that the head of the family signs on behalf of the individuals. My amendment would keep the promises made to Canadians between 1918 and 2004.

Motion in Amendment

Hon. Gerald J. Comeau: Therefore, honourable senators, I move:

That Bill S-18 be not now read a third time but that it be amended in clause 1, on page 1, by replacing line 8, with the following:

"between 1910 and 1918 is no longer subject to".

Hon. Fernand Robichaud (The Hon. the Acting Speaker): It was moved by Honourable Senator Comeau, seconded by Honourable Senator Cochrane:

That Bill S-18 be not now read a third time but that it be amended in clause 1, on page 1, by replacing line 8 with the following:

"between 1910 and 1918 is no longer subject to".

On motion of Senator Rompkey, debate adjourned.