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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 49
Wednesday, April 13, 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. Wilfred P. Moore: Honourable senators, it is my pleasure to speak today to Bill S-18, to amend the Statistics Act.

I understand the desire of the government to pass this bill, but I also feel the need to express my thoughts and add to the debate. As we have heard, this amendment has been on the agenda since October 27, 1998. However, activities surrounding this issue since then have not resolved the doubts raised in this chamber.

The purpose of the census is to provide an accurate picture of a country and its people at a point in time, thus the five-year frequency. The population's characteristics are analyzed. The more practical uses of a census to a country like Canada are to establish electoral boundaries and to ensure the accuracy of transfer payments.

In 1666, Jean Talon, the Governor of New France, conducted the first census this continent has known. Prior to Confederation, the governments of British North America also conducted censuses. Post-Confederation, Canada had a census every 10 years until 1956 when the frequency was changed to every five years.

There is a long tradition of conducting censuses in Canada. The essential element of that tradition is the promise of the Government of Canada that the information provided will not be given to anyone outside Statistics Canada. In other words, other than the Statistics Canada exception, the information provided will be kept secret and the right of citizens to the privacy of the information they have provided will be honoured.

This long tradition is brought into question with this amendment. The issue at hand is the public release of post-1901 census records. The census data from 1891 and 1901 was released for public use in 1983 and 1993 respectively. The 1906 census data was released in 2003. This was done because this particular census pertained to the Prairie provinces and was deemed to contain less sensitive data.

In support of that secrecy, in 1985 the Department of Justice provided a legal opinion stating that the censuses of 1911 and beyond occurred after legislative changes had been made that provide for a guarantee of confidentiality regarding the data collected.

In 1999, the Honourable John Manley appointed the Expert Panel on Access to Historical Census Records to determine what might be done to resolve this issue. The panel did not hold public meetings. Interested groups were asked to contribute of their own accord. However, 3,555 letters, faxes and emails were received by the panel over the seven months of its study, and some 95 submissions from genealogical, historical and archival associations were also received. As our colleague Senator Milne, a member of the panel, can attest, an extensive study was conducted.

After their deliberations, the panel came to the conclusion that the census records in question should be released. Its report states:

The Panel is firmly convinced of the benefits of the release of historical census records. The Panel is of the view that with the passage of time, the privacy implications of the release of the information diminishes and that the passage of 92 years is sufficient to deal with such concerns. We are persuaded that a guarantee of perpetual confidentiality was not intended to apply to the census. We believe that the indication of transfer to the National Archives also implied an intention that the census records would eventually become public and we would not view any legislation deemed necessary to do so as a breaking of a promise to respondents. We view the historical and international precedents as fully supportive of this position. The Panel is equally convinced of the value of the census and other work of Statistics Canada and is unwilling to make any recommendation which it believes will jeopardize this work. It is for that reason that we recommend release of the pre-1918 Census records and post-2001 records on a 92-year cycle, while advising some caution regarding any legislative steps that might be thought necessary to effect the release of those census records for the period 1921 to 2001.

(1450)

The debate should not focus upon the level of sensitivity contained in this information. Rather, the question is whether a government should be held to a higher standard, that is, once a government has given a promise to its citizens, should that promise be broken by those who come later?

We have heard that there has never been any provision restricting the release of census material. I would draw your attention to two sections of the 1918 Statistics Act:

15(1) No individual return, and no part of an individual return, made, and no answer to any question put, for the purposes of the Act, except as hereinafter set forth, shall without the previous consent in writing of the person or the owner for the time being of the undertaking in relation to which the return or answer was made or given, be published, nor, except for the purposes of a prosecution under this Act, shall any person not engaged in connection with the census be permitted to see any such individual return or any part of any individual return.

(2) No report, summary or statistics or other publication under this Act, except as aforesaid, shall contain any of the particulars comprised in any individual return, so arranged as to enable any person to identify any particulars so published as being particulars relating to any individual person or business.

It appears to me, honourable senators, that with the inclusion of those provisions in the Statistics Act, there is a clear intent of Parliament to legislate an assurance to those filling out their census forms that the information they provide will not be shared with or divulged to anyone not dealing with the data through Statistics Canada.

Our colleague Senator Lynch-Staunton quoted commitments of confidentiality in 1918, 1948, 1971 and 1981. It is difficult to understand how these commitments made on so many occasions might be interpreted today to mean less than their clear intention. There is no mention of perpetuity specifically, but there is certainly no mention of releasing this information to the general public at any point. Erring on the side of caution is certainly the term which applies in this situation.

There were also dissenting opinions held by the Manley panel. No less than the Privacy Commissioner at the time, Mr. Bruce Phillips, stated in no uncertain terms that he opposed the release of the census information in question. The former Privacy Commissioner argued that a 1905 legislative commitment to confidentiality is the impediment to the release of the data in question. He said, "Release of the information collected through the census violates the principle that information collected for one purpose should not be used for another without consent." That is the privacy issue at stake here. How is it possible to obtain the consent of those who have passed on? It is not possible. That should be the end of the argument.

Statistics Canada also made a submission to the Manley panel which outlined a concern that the participation rate would decline if there were a drop in the level of public confidence in the agency's ability to maintain confidentiality of census returns. The panel dismissed this concern. It quoted a U.S. congressional committee which looked into the matter, and asserted that no evidence existed to connect the release of census data and diminishing census participation. However, to use that same United States as an example in assuring us that rates will not drop may be less helpful than one might think. According to Statistics Canada, 96 per cent of Canadians filled out their census forms in 1991 and 1996, compared to 63 per cent in the United States census of 1990. These numbers have to be mentioned within the context of this argument.

The issue we are dealing with is no less than the breaking of faith between the government and its citizens. We, as the current government, must uphold a promise made to the citizens of this country by another government, no matter the length of time that has passed. This notion that somehow a covenant made between citizens and their government may be struck null and void because a period of time has gone by, is a troubling precedent to be set. As Senator Plamondon mentioned, we are putting ourselves in a position where Canadian citizens will not trust us. We cannot expect them to, no matter how innocuous the effect of the proposed action is perceived to be.

In Canadian political tradition, retroactivity has never been the favoured course. It is a controversial method of dealing with issues. Those who filled out their census forms during the years in question were not of the impression that a change would be made at a later date. That the confidentiality provisions under which citizens filled out their census forms would be altered by a future government, was not expressed to them either in legislation at the time or at the door.

The complete turn around proposed by this amendment is alarming. We should take more care in considering what the effects of our actions might be. Hence, the history in Canada to shy away from the use of retroactive legislation. As Senator Plamondon mentioned, we are looked at as being one of the higher-ranked countries in the world. Our society is based on the rule of law, and the stability of that law. That stability has not been gained and recognized by a practice of retroactive legislation. Changing these rules mid-stream detracts from this solid international reputation and erodes a tradition we have established domestically, which has served our society so well.

It is the belief of those attempting to rescind this promise — a promise to my mind which was made in no uncertain terms in the Statistics Act of 1918 — that doing so would not compromise any of those involved. I would submit that there is a very real danger of compromising both parties involved. The first is the citizens to whom the commitment was made, the commitment being the promise to maintain the secrecy of participation in a government census. A census in which the same citizens are compelled to partake, would be torn apart. That promise would be broken.

Second, the government of this country would also be compromised. At the heart of the relationship between the people and the government is trust — trust that the government will treat its citizens equally and honestly, and that once a government has made a commitment to its citizens, that commitment will be upheld. This is not a matter of taxation. It is not a matter of changing circumstances. The circumstance of change can have no effect on this commitment. I ask you: How could the passing of 92 years make the breaking of a promise made a justifiable act?

Let me quote the Honourable David Emerson, Minister of Industry and responsible for Statistics Canada, from the department's press release dated November 2, 2004 upon introduction of this bill: He said:

Informed consent about the use of one's own personal information is a matter of fundamental privacy protection. Canadians should have the right to decide for themselves if they want their personal census records to be made publicly available in the future...

There is no argument about the active consent provision in this bill. It is an admirable feature of this amendment. Allowing Canadians to choose whether their census information will be released publicly after 92 years is fair and well conceived.

(1500)

The message from the minister speaks of fundamental rights of privacy, allowing Canadians to choose for themselves on this issue. There is the mention of a fundamental right to privacy again. Who qualifies for this right? Did we put a prerequisite of being alive as the key qualification?

What is it about our particular generation which makes us believe we possess the wisdom that somehow eluded the governments that came before us? Do we honestly believe that these governments did not weigh carefully what the issues involved were, that their commitment to the privacy of the citizens of the day was somehow less serious than our commitment? I do not believe so. Moreover, is the minister's statement in support of privacy protection any less applicable or meaningful today than in the past? I do not think so.

What of those who filled out their census forms from 1906 onward? Who will speak for them? Their voices are silent. It is impossible for them to express their position. I believe that, so long as these Canadians took part under the belief that their privacy rights would be protected, so long as their personal information was entrusted to a government which made a promise to these citizens of Canada to maintain the secrecy of this information, we have no right to speak contrarily for them or the government that made that commitment.

I understand that some 77,000 Canadians alive today will be directly affected by the passage of this bill and the proposed release of census records from 1906 and 1911. I assume that they will be consulted if and when their census information is released, or will this bill simply allow for the public release of census data without notice to them and their prior consent having been obtained? That is a very serious question.

Will we be left with a situation where the Government of Canada will force these citizens to take some legal action against their own government in order to have their census data kept private? What about the anxiety this would cause for those surviving elderly citizens and their families, and for the families of deceased census participants? Who will pay the legal bills that they might be forced to incur? I am sure that these respondents who would be affected by this legislation would like to know, and indeed have a right to know.

The Hon. the Speaker pro tempore: Honourable Senator Moore, your time has expired. Are you asking leave to continue your presentation?

Senator Moore: I would request leave to continue, please.

Senator Rompkey: Our usual practice is five minutes.

Hon. Senators: Agreed.

Senator Moore: I will be finished within that time, honourable senators.

Another legal opinion states that, due to the lack of specificity regarding the length of time these documents would be kept secret, combined with the act of transferring this data to the National Archives, the justification is provided for the release of these records to the public. I have read the debates involved and I understand there is no specific mention of perpetuity. However, I also notice there is specific mention of not sharing this information with a party not involved with gathering data and the census, and that this information would not be released to the public. This seems a clearer message than attempting to second-guess the intentions of the government that passed the original legislation.

Honourable senators, at the heart of this matter is the need to maintain the high standard of trust between a government and its citizens. The argument that there comes a point in this relationship when, due to the passage of time, a promise made by a government can be broken can lead to a setting of a very dangerous precedent.

We, honourable senators, are entrusted by the people of Canada to defend the rights of all citizens of this country. It is my contention that this also includes those who have gone before us. If we break faith with our forefathers and foremothers, what does this say of us and of the trust placed by them in us?

The matter of releasing these census records has been portrayed as innocuous. We are being told that there is a point where the combination of the level of sensitivity of the data involved, plus the passage of time — 92 years — results in the removal of any privacy issue. This is the point where we as legislators must be very careful. Is it the data itself which should be the focus of the debate, or is it the quality of our stewardship of that data? We must realize that this legislation necessitates the breaking of an agreement made between our great grandparents, grandparents or parents and the government of the day. I do not think that is wise, nor do I think it is within the scope of our power or mandate.

I ask you to remember who you are, the office you hold and your role as upholder of the rights of Canadians. If the decision is made to overturn this agreement, then let us at least be aware of the severe implications of such an act, and let us realize we can expect no more from those who will sit in this chamber after us.

Hon. Gerald J. Comeau: Would the senator entertain two very brief questions?

Senator Moore: Yes.

Senator Comeau: Is the senator aware that, in an application for the release of historical census records, the Federal Court, in 2004, ruled that the care and control of the 1911 census, and subsequent censuses of course, rests with the Chief Statistician and therefore any move to release the census would require legislation? In other words, up until that point the argument had been made that the Chief Statistician did not have an obligation to keep the data but that, in fact, the Federal Court did rule that he was the custodian of the record.

My second question relates to the fact that an argument has been made that the census records provide extremely valuable information in order to trace one's health ancestry; in other words to try to identify diseases or medical problems that might be in the family. Therefore, it would be valuable to get all of this information on the record so that people can research their family medical backgrounds. However, that is in fact a double-edged sword. If individuals are allowed to investigate their medical background, be it mental or physical, insurance companies will be allowed to do exactly the same thing. If the insurance companies start digging around in our health history it could impact on the kind of insurance that we could obtain.

Senator Moore: I will attempt to answer those questions.

With regard to the first question, I was not aware of the ruling in that Federal Court decision, but it is clear to me that it is consistent with the provisions in the Statistics Act of 1918. There has been nothing put on the legislative books contrary to the provision of that law.

The honourable senator mentioned the possibility of others using this personal information for personal gain. All of that simply points out the absolute need to maintain the secrecy. There is a situation going on now in the United States — and this was reported in the Montreal Gazette on April 9 — where such information is being gleaned from government records by the Mormon Church with regard to Jewish citizens in the United States. That church is conducting proxy baptisms of those good people who are deceased who were victims of the various concentration camps. That is an extreme situation, but that is what could happen.

On motion of Senator Lynch-Staunton, debate adjourned.