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

Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 7
Tuesday, February 20, 2001
The Honourable Dan Hays, Speaker



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Access to Census Reports
Presentation of Petition

Hon. Lorna Milne: Honourable senators, I have the honour to present petitions signed by 363 Canadians requesting that the government allow the release to the public, after a reasonable period of time, of post-1901 census reports starting with the 1906 census.



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Statistics Act
National Archives of Canada Act

Bill to Amend-Second Reading-Debate Adjourned

Hon. Lorna Milne moved the second reading of Bill S-12, to amend the Statistics Act and the National Archives of Canada Act (census records).-(Honourable Senator Milne).

She said: Honourable senators, I was pleased to hear the immediate discussion we have had on genealogy in this chamber because the purpose of Bill S-12 is to allow for the timely public release of the post-1901 census records to allow genealogists to pursue their interests.

This bill is intended to make reasonable and workable amendments to both the Statistics Act and the National Archives of Canada Act, to allow for the transfer of census records from Statistics Canada to the National Archives of Canada, where the records will be released to the public, subject to the Privacy Act.

In the last Parliament, I introduced this same bill. During second reading stage, it attracted the attention of the Honourable Senators Fraser, Johnson, Taylor and DeWare, before it was referred to the Standing Senate Committee on Social Affairs, Science and Technology.

Following my introduction of this bill, there was an identical bill, as well as a private member's motion, introduced in the other place, both of which were intended to get exactly the same results as Bill S-12.

The issue of census release is gaining more urgency as time passes. Access to census data remains an essential part of historical research in Canada. David Havegood of the Galton Institute said at a recent conference in London that the development of the family pedigree, so familiar to all genealogists, including Senator Lynch-Staunton, is "the most commonly used tool in medical genetics." Thus, I am proud to speak to the second reading of Bill S-12 today.

I believe this bill achieves an acceptable compromise between the concerns and goals expressed to me by the various interest groups involved - Statistics Canada, the National Archives of Canada, the Privacy Commissioner of Canada, genealogists, historians, medical research and the Canadian public. I do not want to bore the Senate by repeating everything I have said here on several occasions on this subject. Since that time, however, several things have happened.

Early last summer, the Expert Panel on Access to Historical Census Records reported to the Minister of Industry. In their report, released in December 2000, they responded to many of the concerns raised when this bill was first introduced in the previous Parliament. The panel recommended to the minister the following:

Our fundamental recommendation is simply that census records should be publicly released through the National Archives 92 years after a census is taken. The means by which the release of historic census records can be achieved varies with the historical period in which the census was and will be taken.

The expert panel further stated:

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 historic 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 the post-2001 records on a 92-year cycle...

The expert panel, by the way, consisted of the following individuals: our former colleague the Honourable Lorna Marsden; Professor John McCamus of Osgoode Law School, York University; the Honourable Gérard LaForest, former Justice of the Supreme Court of Canada; Chad Gaffield, Director of the Institute of Canadian Studies at the University of Ottawa. The panel was was chaired by Richard Van Loon, President of Carleton University.

Honourable senators, I should like to briefly outline the bill and demonstrate how it is legislatively compatible with the report of this expert panel.

Clause 1 of the bill makes amendments to the Statistics Act by adding a new section after section 21. Under this proposed new section, Statistics Canada would conserve the records while they are in the care of the department.

In addition to ensuring the conservation of these records, the bill requires the Chief Statistician to obtain the consent of the National Archivist of Canada before administering the destruction or disposal of any census records, including individual census returns, and ensures that this can only be carried out once all of the information has been transferred on to another recording medium. This proposed section also details when the transfer from Statistics Canada to the National Archives of Canada should occur, first, for population censuses taken under section 19 and agricultural censuses taken under section 20 and, second, all the population and agricultural census data taken prior to 1971.

Bill S-12 recommends that the transfer to the National Archives occur 30 calendar years following when the census was taken but leaves the window open for the transfer to take place sooner if the two departments are in agreement. For the pre-1971 records, the transfer is to occur before the expiration of two years after this proposed section comes into force, or at an earlier time agreed upon by the two departments. This is consistent with section 6 of the National Archives of Canada Act.

Once the records are transferred to the care and control of the National Archivist, the Chief Statistician will no longer be responsible for those records. The information contained in the records and the release of the census records would then fall solely under the responsibility of the National Archives of Canada and the National Archivist.

Therefore, the second part of this bill amends section 7 of the National Archives of Canada Act. Under Bill S-12, proposed section 7.1 would recognize the permanent historic and archival importance of census records, and thus the necessity to ensure the security of the permanence of these records through specifically prohibiting the transfer, destruction or disposal of the records unless all of the information is saved on an alternative recording media.

Proposed section 7.2 would recognize the promise of confidentiality. Once the records are in the control of the National Archivist, prior to 92 years after the census has been taken, the archivist could only disclose the information in the records to the Chief Statistician of Canada and persons authorized by order of the Chief Statistician under subsection 17(2) of the Statistics Act, or as authorized by this proposed section. After the 92 calendar years have elapsed since the census was originally taken, the National Archivist would provide public access to the records of the census. This does not touch any provision already providing access to the information under the Statistics Act prior to 92 years since the taking of the census. The access provided by the National Archivist after 92 calendar years would be subject to such reasonable terms and conditions as the archivist may establish that are consistent with the purposes of the National Archives Act.

The last addition that Bill S-12 makes to the National Archives of Canada Act would implement an objection process whereby the National Archivist would accept written objections from individuals who wish the information they submitted during the course of the census to remain confidential. The archivist will receive these written objections in the final year before the information would otherwise be released. Bill S-12 sets a number of requirements for those written objections. In addition to when it should be submitted, the objection must contain sufficient information for the archivist to be able to locate the information and would have to satisfy the National Archivist that the disclosure of that personal information would constitute an unwarranted invasion of the privacy of the person to whom it relates. If these requirements are satisfied, the archivist would not allow the disclosure of that personal information referred to in such a valid objection.

When 92 calendar years since the census was taken have elapsed, the archivist will make public all census records of individuals recorded in the census who have not made a valid objection to the archivist and who would, therefore, be deemed to have given irrevocable consent to public access to this information in the census.

Honourable senators, virtually every civilized nation in the world retains census data and makes it available to the historic researchers once a reasonable period of time has elapsed, including such privacy-focused and litigious countries as the United States of America, which released its 1910 census to the public in 1982. Even in the home province of the minister presently responsible for the census, all the census results up to and including the 1945 census are now open to the public and have been for half a century. These records are of vital importance for Canadians not only for reasons pertaining to family history but also for medical, demographic and historic reasons.

Since the release of the report of the expert panel, I am more convinced than ever that Bill S-12 strikes a good balance between all of the issues considered around the census release. I hope that no Canadian will be deprived of this vital personal data that belongs not only to the state but also to that particular Canadian.

Honourable senators, this issue will not go away. Presently, census committees have been set up in almost every province and territory that is hard at work lobbying politicians and - I heard from one of them today - rapidly gaining increased support.

I want to give all credit for this surge in public support to Mrs. Muriel Davidson of Brampton and her multilingual Canada Census Committee, to Gordon Watts of Port Coquitlam, B.C., to Donald Nisbet of Surrey, B.C., and to the many fine minds who are presently researching this matter and writing to me. Today, I presented petitions signed by 363 Canadians. In the last year, I have presented petitions in this place signed by over 1,800 Canadians. In the other place, petitions signed by well over 6,000 people have been presented so far. I repeat, this matter will not go away.

Honourable senators, I look forward to your support.

Hon. Sheila Finestone: Honourable senators, the honourable senator makes a very interesting and persuasive case. I have an interest in and a serious concern regarding privacy rights. Could the honourable senator define what, exactly, would be found in a census record? To what extent would a census record expose my life, my history, my financial accounts, my illegitimate and my legitimate children, et cetera? Could the honourable senator please inform me as to what information is contained in the census records?

Senator Milne: The honourable senator's question does make me curious. However, the questions contained in the Canadian census have remained the same basically from the time it was instituted in 1861, when the first fairly complete census record was taken in Canada. The questions remained the same through to 1901 - and those records have already been released with no adverse reaction whatsoever - and to 1906, the first year of the Western census, right through until after the Second World War. The census asked questions of a personal nature - who you were, your name, the number of children you had, and the names and ages of your children.

Senator Finestone: What about questions concerning finance?

Senator Milne: No, the finance part of the census usually came through in the agricultural census, when Canadians were asked the value of their crops, how many acres of grain they had produced in the last year and what it was worth.

Questions regarding finances were not part of the census. The questions remained the same until after the 1951 census. Ninety-two years after 1951 would bring us to 2043. Therefore, until the year 2043, we do not have to worry about a lot of personal information being released when the census results are being released. Between now and then, I am sure there will be many changes in various laws about privacy, so I am not terribly concerned about after 2043. I am concerned about getting the historic censuses that now exist into the public domain, where I believe they should be and where it was always intended that they should be, and where the same instructions that tell the census takers they cannot run down the street and tell your neighbours everything about you also told them to make sure that their writing was clear and distinct because these records were to be deposited in the Public Archives of Canada, eventually for all to see. It was the clear intent at the time that these records would always eventually be made public.

Senator Finestone: I have two supplementary questions. First, what happened or what changes took place after 1951 in the nature of the census information?

Second, I was Vice Chair of the Standing Committee on Communications and Culture in the other place in about 1985-86, when there was serious damage to the National Archives Building. We became aware of the need for repair and the need for a new storage facility for all these wonderful archival materials. Many of these handwritten documents, which are magnificent to look at, are to be found there. I saw documents from the 1840s and 1850s. At that time, I do not recall seeing anything that was more personal than your name, your address, your number of children, the names of your children or the quality of the cattle that you owned. Frankly, with everything that is happening today, I think there is more protection of cattle than there is of people.

I do not recall seeing anything that was of serious concern, such as the distribution of your financial estate or the relationship within your family. There are serious concerns, honourable senators, about what information we are releasing and whether it should be made anonymous. Removing or making that information anonymous would meet the criteria of the right to privacy, which was promised. The honourable senator has stated that it was said that the census documents were there to be made public. I am not familiar with that phrase nor that approach. I would like to be further sensitized and better informed, and perhaps we could do that in committee.

When you are presenting a creative approach such as this to honourable senators, it is important to indicate the content of the census on the public record so that we can allay the fears of many people about the historic record and what will become part of the public record under a census report.

Senator Milne: Honourable senators, to answer the first of the two questions, sometime after 1951, Statistics Canada went to the use of an individual form for the first time, rather than writing down consecutively in the same book the names of each member of a household. Because they went to individual forms, future research on any name through the census became remarkably difficult.

That was the main change after 1951, along with the fact that, yes, they did begin to ask more intrusive questions. They asked those questions in order to sell the results, I believe, to the public. Statistics Canada is in the marketing business. Now they are selling aggregate results; they are not selling individual results.

Forty years from now, that usage will become a concern to researchers. I agree with the honourable senator on that point. For the questions up until then, I am quite prepared to document every single census question in those intervening years. We can discuss this fully in committee and let senators know that the questions then were not intrusive, were not invasive and had not changed.

The 1901 questions have already been released; they were pretty well identical to the 1911 census questions. There was no change.

There was no change in the law between those two years. Why was the 1901 census released with no problems and no concerns, but, all of a sudden, the 1911 census cannot be released? This I do not understand.

The honourable senator makes a point about the promised right of privacy That promise is a myth. A right of privacy was never promised. Good brains all across this country have been researching this question for the past three or four years, and they have yet to find any evidence of a right of privacy promised to the people by the Laurier government.

Three or four days ago, a demand for access to information was made to the government. That demand must be answered within 30 days. The demand is for proof that the government promised this privacy. It will be very interesting to see if they can come up with the promise because, so far, no one has been able to come up with it. It is a myth.

Hon. John G. Bryden: Honourable senators, I should like to make a short comment and then ask a question of Senator Milne.

As I listened to the honourable senator's statement and the exchange that followed, I thought about the valuable role of this chamber in addressing some of the things we have been discussing, issues that are significant and important to the fabric of Canada and to understanding Canada's past, its present and its future. Such hugely significant questions can consume the time of this chamber and properly so, but those same questions would likely not find a champion or champions in the other place because there is no necessity of X dollars required to plant the crop in April, for example. It is extremely important that honourable senators take the opportunity to delve to great depth and with great consideration into this area.

I have one other comment on the reference to privacy that Senator Finestone raised. It probably is true that there was no commitment to privacy. When I was attending law school - and all the lawyers here and elsewhere may correct me - I understood that there was no concept of a right to privacy under the common law under which we functioned. That is why we have developed acts dealing with privacy. There was no inherent right to privacy at common law in Great Britain or its colonies. Senator Grafstein is looking at me. Nevertheless, it is worth seeking out that commitment because chances are pretty good that privacy was not one of our inherent rights.

The honourable senator referred to appeals being made to prevent the release of some information. The chief archivist is to make the decision after having heard all arguments. I have not looked at the act, but is there any appeal of the decision of the chief archivist? If not, then I take it that recourse would be through the normal court system. Is there any board to which appeals may be taken?

Senator Milne: Honourable senators, Senator Bryden is quite right that British common law contains no such idea as a right to privacy. Unless it is specified, privacy does not exist. In this case, the original act was silent; therefore, privacy does not exist. The bill does state that the archivist shall not disclose any personal information after receiving a valid written objection regarding that information.

No, I have not provided within this bill for any form of appeal. Presumably, it would be very difficult to find someone who wanted to appeal because, if one person objects out of 30 million people in Canada, it is pretty hard to let everyone know that one particular person has objected to their information being released.

Hon. Jerahmiel S. Grafstein: Honourable senators, forgive me; I did not hear the fulsome debate. I just heard the former Chairman of the Standing Senate Committee on Legal and Constitutional Affairs suggest to the Senate that there is not under common law a right to privacy. I will not debate that issue today, but certainly we are called upon to at least review the question.

The only instant recall I could give would be the extensive treatise by Mr. Justice Brandice about the right to privacy. That article was written, I believe, in the 1920s or perhaps the 1930s. It was an extensive review of the origins of privacy. I will bring that article back to the Senate, but I did not want to sit and listen to these comments by our colleagues without at least saying that the issue is worth exploring, as the honourable senators have suggested.

Senator Milne: Honourable senators, I believe that I said that there is no inherent right to privacy.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, could Senator Milne explain the difference between the right to privacy and the inherent right to privacy?

Senator Milne: At this point, I would resign.

On motion of Senator DeWare, for Senator Murray, debate adjourned.