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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 51
Tuesday, April 19, 2005
The Honourable Dan Hays, Speaker

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Orders of the Day

Statistics Act

Bill to Amend—Third Reading—Debate Continued—Vote Deferred

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. John Lynch-Staunton: Honourable senators, in taking a position on this bill, we have to decide whether we support what I consider a legitimate request by genealogists, family historians and others for access to census records from 1910 to 2005, which are now sealed and limited to employees of Statistics Canada, or whether we honour pledges that have been made repeatedly over the years to keep this information confidential. I certainly side with the latter. The principle of confidentiality and the pledges made are more important than acceding to what are certainly legitimate requests. On the other hand, if every such request means the violation of a pledge, then there is something wrong if we meet those requests.

I am surprised that, other than Senator Milne, no one has spoken on the other side with the same fervour, or anything approaching it, in support of this bill, while those opposing the bill have brought out some excellent arguments. I emphasize, in particular, the interventions made by Senators Comeau, Plamondon and Moore. In addition to Senator Milne, the Leader of the Government in the Senate and Senator Fraser intervened.

(1510)

Senator Austin's intervention was an argument based on public policy, as if revealing individual information would make a contribution to public policy. He suggested that government decisions cannot be considered permanent, that there are conditions that justify changes to them, and I accept that. However, he did cite as an example a promise made by the first President Bush during a campaign that he would not increase taxes. I find it difficult to accept that a broken campaign promise is equivalent to removing pledges made over many years and enshrined in law. I do not agree that one can be compared with the other.

Senator Fraser showed impatience, which I understand, because this issue has been before us for many years, and said that we should get to a vote because all the stakeholders had been heard from. Not all the stakeholders have been heard from. Those most directly affected have not been heard from. I have not found anywhere any attempt to get in touch with those who have given information in the last few years to find out whether they would accept that the information they gave in confidence would be revealed at a given time.

All I have been able to find is a paper entitled "Qualitative Research on Public Perceptions of Statistics Canada, The Census and Related Sub-Contracting," which was presented to Statistics Canada in January 2004. It is a survey made by a firm called Patterson, Langlois Consultants. I will read two sentences from the overview:

For the majority of participants the Census represents something of sanctity: the data is something to be protected, and undeniably Canadians...

Most unquestioningly continue to trust Statistics Canada to protect their data, and to be accountable for that protection.

This morning we all received a book put out by Statistics Canada entitled, "2006 Census Questions and reasons why the questions are asked." In that book can be found all the questions to be asked on the long and short form in May 2006, and the reasons behind those questions.

These were gazetted on April 16. Preceding the publication of the questions it is stated:

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry...hereby fixes May, 2006 as the month in which a census of population shall be taken by Statistics Canada and prescribes the questions to be asked in the 2006 Census of Population, as set out in the annexed schedule.

I emphasize the word "prescribes" because, in effect, this is a government-sanctioned questionnaire; it has an air of finality. It is not a suggestion; it is not asking for recommendations; it is fixed.

In the covering letter that came with the book we received, the minister responsible confirms that the questions in the census form are questions that the cabinet has approved for the 2006 census.

Comparison with the 2001 census reveals that there is very little change, except for two major ones, and I am sure that the second one in particular will be of interest.

First, question 51 is followed by a number of questions on the individual's income. Those who have seen the long form will remember that the income information required is very detailed. It includes personal income, business income, farm income, dividend income, pension income, et cetera. In fact, it is the same information that one gives on one's income tax form. The new addition to that part of the census form is question 51 which says:

To save time, each person can give Statistics Canada permission to use the income information already available in his/her income tax files instead of answering Question 52.

In other words, if you give approval in question 51, Statistics Canada can extract all the required information from your income tax file rather than your repeating all that information on the form.

That raises an unintended situation. If census information is eventually revealed because of Bill S-18 and you have not put your income tax information on the census questionnaire, it will never show up, but if you have put it on, it will show. In any event, under the Income Tax Act, income tax information remains confidential, and should so remain.

That is just a comment. More important is question 53, which is preceded by the following:

The following question is for all persons who usually live here including those less than 15 years old. If you are answering on behalf of other people, please consult each person.

Question 53 reads:

The Statistics Act guarantees the confidentiality of your census information. Only if you mark "YES" to this question will your personal information be made public, 92 years after the 2006 Census. If you mark "NO" or leave the answer blank, your personal information will never be made publicly available.

Does this person agree to make his/her 2006 Census information available for public release in 2098 (92 years after the census)?

Yes

No.

Questions 51 and 53 do not appear in the explanatory notes. You have to go into the questionnaire to learn that two significant additions have been made, particularly the second one which, in effect, anticipates passage of Bill S-18. It is lifted from clause 18.1(2) of the bill. It tells Parliament that, no matter what it decides, the government has already decided to ask Canadians if they want the information to be made public, even though this bill may not be accepted, either here or elsewhere, or may be modified to extend the 92 years or whatever. To say the least, I find that a form of gross contempt that I will not qualify further.

I am also upset by the fact that throughout the book we received this morning, there are continuing guarantees of confidentiality: "All your answers are kept confidential," "This is the law." In the explanatory notes we see:

The Statistics Act requires all residents to provide the information requested in the census. It also requires Statistics Canada to strictly protect confidentiality of all information provided by respondents.

I could go on.

Then suddenly, at the end they say, "Despite all we promised you, why don't you let us make that information public 92 years from now?" I think it is improper to have that question put in at this time before Parliament has given its approval. Otherwise, why have the bill before us? Also, why add this comment, which in effect encourages the respondent to give his approval? In the explanatory notes in the book that reproduces the questionnaire, it says:

Consent to the release of census information allows future generations to better understand Canadian society in 2006.

That is not true. There is much more to the release of information than only to help us understand society. This is an editorial comment that is uncalled for.

Colleagues, according to the Concise Oxford Dictionary, "prescribes", the term used in the Canada Gazette, is to lay down or impose authoritatively. The government cannot claim, as it has before, that that is an honest mistake made by over-eager public servants.

(1520)

We have had cases in the House of Commons and in this chamber where information has been posted on the Internet or published elsewhere by a government department, leaving the impression that the information was already law when in fact the legislation to make that information law was still before either one or the other house.

Let me read briefly what Speakers in both Houses have said in cases like this; both came to the same conclusion. Speaker Fraser, for instance, on October 19, 1989, said:

I...remind everyone in the Public Service that we are a parliamentary democracy, not a so-called executive democracy, nor a so-called administrative democracy.

Our own Speaker, Speaker Hays, spoke on this issue on February 24, 1998. Many colleagues will remember that was at a time when we were discussing the Canada Pension Plan bill, which included a 10-year premium schedule that Parliament had to approve, and that schedule was posted on the Revenue Canada website as if it was official. As soon as this was brought to their attention, Revenue Canada said it was a mistake and took it down. Speaker Hays concluded his ruling by saying:

While I am prepared to accept that no contempt appears to have been committed, I find the actions of the department inexcusable.

I think the action of Statistics Canada to include question 53, a question that is based on a bill presently before this house, is also inexcusable. What is before us is not a so-called honest mistake; it is dismissing completely the significance of any debate here on the bill. It is not the first time the government has shown disinterest in what goes on here, but it also shows contempt for the elected House, which has yet to be seized with Bill S-18; and this not by ill-advised but well-intentioned public servants, but by the government itself, led by a Prime Minister who once again brings dishonour to his pledge to narrow what he identifies as the democratic deficit.

I have resisted temptation to push more aggressively my claim of contempt as provided in our rules, as I have no doubt that should this bill reach the other place, many of its members will, with every good reason, raise it at the appropriate time.

I suggest that to avoid this from happening, government supporters here should seriously consider voting down the bill, thereby saving further embarrassment to their elected caucus colleagues and confirming that Parliament is not a puppet of the executive, while at the same time insisting that formal pledges of confidentiality going back decades will continue to be respected.

Hon. Lowell Murray: Honourable senators, Senator Milne must be wondering what she has done wrong in her life. I do not know how many times either she or the government at her initiative has brought in a bill of this kind and it has died on the Order Paper or died with prorogation or dissolution. Here she is staring down the barrel of dissolution and quite possibly contemplating the disappearance of her bill for the time being once again.

It is no secret to honourable senators that in the perennial tension between privacy on the one hand and access to information on the other, and the effort to strike a balance between the two, my instinct has always been to come down on the side of privacy. Therefore, I have opposed most of the previous initiatives brought forward by Senator Milne. I have opposed them because I was relying, as Senator Lynch-Staunton and others have done, on the assurances given by previous governments — some of them written into statute, others proclaimed by way of regulation — that the information would be kept strictly confidential.

I am venturing a little beyond my depth here in discussing a legal issue, but the legal status in recent times has not been as clear-cut, as our old friend Senator Beaudoin would have said, as some senators have made out in this debate. The question, I think, was and is whether legislation passed subsequent to the Census Act and its amendments, legislation such as the Access to Information Act and the Privacy Act, trump the confidentiality provisions in that previous legislation.

I had thought that it did not. I was relying on the word of not only the Chief Statistician of the country, who took quite a strong position on this matter, but on the legal advice he was receiving and had received for some time from the Department of Justice. On that basis, I felt confident not only in the moral and political position I was taking, but in the legal support it seemed to have.

The committee that had been set up by the former minister, I think it was Mr. Rock, under the chairmanship of —

Senator Lynch-Staunton: It was Mr. Manley.

Senator Murray: In any case, the former Minister of Industry, I think under the chairmanship of retired Justice Gérard La Forest, was not quite as categorical as Statistics Canada and some of us had been. However, the committee came to the conclusion that all things considered and, as they might put it, for greater certainty, legislation would be required to open this up.

The development that was decisive in recent times is that the Department of Justice simply did an 180-degree flip-flop on the issue and came to the conclusion that if the confidentiality or secrecy provisions were contested in the court, we would lose. That was their conclusion. They came to agree with those whose position it was that the subsequent legislation, the Privacy Act and Access to Information Act, trumped the previous statutes.

Therefore, the question that faced Statistics Canada and others was what to do. They came to the conclusion that if we were facing the loss of those confidentiality provisions, the prudent thing to do would be to try to build some fences around it in legislation. That is what this bill tries to do, among other things, by asking respondents whether they will agree to have their personal information released in 92 years.

The nub of the question is whether it is more prudent to face what appears to be the legal reality and build some fences around it to get the best compromise that could be achieved under the circumstances, or whether we sit back and wait for a case to emerge in the courts where we will be literally defenceless because the Department of Justice has thrown in the towel.

On that basis, not because I have changed my basic orientation, which is more to privacy than the release of information, and because I think the compromise is an honourable one and the fences are probably as far as we can go at this stage, I said when this bill was introduced in a previous iteration that I would support it and I will support it now.

Hon. Gerald J. Comeau: Honourable senators, would Senator Murray entertain a question?

Senator Murray says he is relying on the Department of Justice, which in fact did a complete 180-degree turn.

(1530)

I assume that the honourable senator has complete faith in such a legal opinion. That is, obviously, questionable by some of us other less human people.

However, the Federal Court, back in 2004, which is not all that long ago, did say that in order for the documents to be released between 1918 and 2001, the government would need legislation to authorize the release. Is the honourable senator aware of that Federal Court decision and if so, how does he square the Federal Court decision with the justice department opinion that basically says that you do not have a case to stand with in front of the court? Finally, on the question of the great compromise, hence forth from 2006 onward, we have an opportunity to say no to release, but in fact, the individuals in the family do not have that option. In fact, it is the head of the family that will have the option to indicate this on behalf of the members of the family, so if the head of the family responds on my behalf, I have nothing to say about it.

How does the honourable senator, the great privacy person, square those three issues that I bring up?

Senator Murray: In a word, it is not because I have more confidence in the Department of Justice than I had at a particular point. It is simply that if they have done a 180-degree flip flop, as I say they have, we will be left defenceless. They have thrown in the towel, and in a court contest, the issue would be lost. I do not know who will defend the position that the honourable senator is taking. If the government does not take it, who will?

The department reversed itself, and this was the reality that Statistics Canada and the government were faced with, in bringing this bill forward. I am not familiar with the details of the court case in 2004 to which the honourable senator is referring, and I would have to examine it and its implications in light of the Department of Justice's opinion.

As for someone replying on behalf of other members of the family, this is the way it has always been done and it is the way it will always be done in the future.

Senator Comeau: Would the honourable senator, if he says that this is the way it has always been done, find those examples for us, because it would be helpful? I am sure our colleagues in the House of Commons would want to see the kind of precedents whereby heads of families are authorized to release the private information of the minors in that family. For example, can the head of the family release the medical information of the minors of the family? Is that person authorized to release such private information? I certainly do not know any other cases.

It is not in the Statistics Act.

Senator Murray: They have been doing it, and the information in those censuses up to 1918 has been released.

Senator Comeau: The censuses up to 1918 are an entirely different issue. Under a separate provision, from 1918 onward our predecessors in Parliament enacted an act that gave explicit, easy-to-read rules even I can understand, but prior to 1918, I agree with you, it was a different era.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question!

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Hon. the Speaker: I hear some yeas and nays. I will put the question in the formal way.

Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it.

And two honourable senators having risen:

The Hon. the Speaker: Call in the senators.

Hon. Marjory LeBreton: We would agree to have the vote tomorrow at 2:45 p.m. with a 15-minute bell at 2:30.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: The vote is, so I understand it, at 2:45 with a 15-minute bell. The bells will ring at 2:30.