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

Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 20
Tuesday, March 27, 2001
The Honourable Dan Hays, Speaker



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Statistics Act

National Archives of Canada Act
Bill to Amend-Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Finnerty, for the second reading of Bill S-12, to amend the Statistics Act and the National Archives of Canada Act (census records).-(Honourable Senator Murray, P.C.).

Hon. Lowell Murray: Honourable senators, Bill S-12 is a Senate public bill brought forward by Senator Milne. I am speaking to it as a private member in that I have neither sought nor received authorization to speak on behalf of anyone but myself.

I will not support this bill without serious amendments to it having been first made. That being said, I cheerfully concede that there is a constituency of support for the bill in the country. That constituency consists primarily of genealogists or, more particularly, people who are interested in genealogy and in tracing their own family history. There is also some support for the bill among some historians, which support I cannot quantify.

The purpose of the bill is to allow the government to make public the individual census returns of Canadians 92 years after this personal information has been collected for census purposes. I would ask honourable senators to consider the merits of the bill in two phases. Obviously, if the bill became law it would apply to individual census returns in all future censuses. Unusually, however, this bill would have retroactive effect. It would apply to all censuses since the year 1906.

To place that in some historical context, the first national census post-Confederation was conducted in 1871. National censuses were taken at 10-year intervals thereafter until 1956, when we started conducting them every five years. From 1906 until 1946, a mid-decade census was taken only in Western Canada.

All personal data from the censuses of 1871, 1881, 1891, and 1901 have been released by the government pursuant to the 1983 Privacy Act, which, through its regulations, has the 92-year rule.

A campaign started a few years ago to have the government release the personal data from the 1906 census in 1998, after 92 years, and to release the personal data from the 1911 census in the year 2003. This, the government has refused to do. The government has taken the legal position that it is constrained from doing so, that it is obliged to keep the personal data in these individual returns confidential because of regulations passed, first, under the 1905 and 1906 Census and Statistics Act and regulations that were passed in 1906 and 1911, and because of a provision that was actually written into the Statistics Act in 1918 that prevents the disclosure of personal information collected in the course of the census.

I will quote a brief excerpt from the regulations and from the 1918 act. Pursuant to the regulations under the 1905 and 1906 Census and Statistics Act, which regulations were promulgated in 1906 and again in 1911, officials were required to:

...keep inviolate the secrecy of the information gathered by enumerators and entered in the schedules or forms. An enumerator is not permitted to show his schedules to any other person, nor to make or keep a copy of them, not to answer any questions regarding their contents directly or indirectly, and the same obligation of secrecy is imposed to commissioners and other officers or employees of the outside service, as well as upon every officer, clerk or other employee of the Census and Statistics Offices at Ottawa. The facts and statistics of the census may not be used except for statistical compilation, and positive assurance should be given on this point if a fear is entertained by any person that they may be used for taxation or any other object.

I shall also read the relevant excerpts from the 1918 Statistics Act. Section 15(1) reads as follows:

No individual return, and no part of an individual return, made, and no answer to any question put, for the purposes of this Act, shall, without the previous consent of the person or of 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.

Section 15(2) reads as follows:

No report, summary of statistics or other publication under this Act 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.

As a layman, I think that those regulations from 1906 and 1911, and that provision of the 1918 act, are as clear as clear can be. I should add that I am informed, although I have not eyeballed it myself, that subsequent legislation in 1948, 1970, 1971 and 1972 specifically prohibits the disclosure of personal information collected in the course of all the censuses from 1921 right through to the census that will be taken later this year.

The position of the government, I think properly, in response to the campaign that was undertaken several years ago to have the government release the personal data starting with 1906 in 1998, and 1911 in 2003, has been that they are forbidden from doing so by the law, that those regulations, and obviously the provisions of the 1918 act, still have the force of law.

I should like to say a word about the arguments that are used by the people who want this information disclosed. If I do not do justice to them, I am sure Senator Milne will do so when she closes the debate.

First, there is, of course, an obvious interest on the part of many Canadians - and I do not know how many, but it seems to be a fairly important, shall I say, lobby - to trace family history. This is understandable and commendable. To add to this the fact that there is a potential need, perhaps even a pressing need, on the part of some people to obtain personal information about their families and family background that will be relevant in the light of modern advances in medical research and genetics, I say in parentheses that I do not understand quite how a lot of the census information, particularly that taken in earlier years, would be much help in the case of medical genetics.

However, let us accept the argument as being valid. I am of the view that, in the case of people who want to trace their own family histories, for whatever reason, it should be possible, even retroactively, to make some exceptions with proper safeguards for this activity. We are always talking about trying to strike the right balance between the right to privacy, which in this case I say is enshrined in the laws to which I have referred, and the right to or the need for access to information. The former commissioner of privacy, Mr. Phillips, suggested that it would be possible to make an exception for genealogical activity in such a way that the information on families could be segregated. In other words, if I wanted to trace, to pursue my own family history, I could do that without trolling through the family history of my colleagues, friends and neighbours. I put that out as being one possibility of an acceptable and honourable compromise which, in principle, I would certainly support.

I am not at all convinced by the arguments that are made by some historians for making public all of this personal census information. I understand the desire of historians to have as much information as they possibly can on any given subject. I think we know that to historians there is no detail, no matter how small, there is no scrap of paper, no matter how insignificant, that is irrelevant to their pursuits. Naturally, they like to know everything about everyone.

Nevertheless, I do not think that the understandable desire of these scholars for more and more information justifies the invasion of privacy that would be involved in acceding to their demands. I say that my opposition to doing so is reinforced by the fact that what we are being asked to do in this bill is to revoke retroactively a secrecy provision that has been in the law since 1906. My opposition to do so is also reinforced by the fact that personal census returns have become in recent years, certainly in the past let us say half century, increasingly intrusive, collecting much more in the way of personal, even intimate, information about individuals and their families. This information is collected from Canadians under the compulsion of law and the trade off is that of confidentiality.

In 1999, the government appointed an expert panel on access to historical research records. The mandate given to it was expressed in two questions. The first was: What are the elements of the difference of opinions between Canadians who would seek to maintain the protection of personal information and those who would like to examine personal or community histories? The second was: What options exist to provide access to historical census records?

I think I detect a slight bias in the way the mandate was phrased. There is no lack of access to historical census records in the aggregate. What we are talking about here is access to personal information, to individual returns. I get the impression that Mr. Manley, who was then the minister responsible for Statistics Canada, was tilting a bit toward the campaign that was then underway to have this material released. In any case, he asked for options, and the panel did not disappoint him.

In its report, the panel said that the government could go ahead right now and release the personal data from the 1906 and 1911 censuses. The panel clearly disagrees with the legal position of the government to the effect that the regulations of 1906 and 1911 prevent that from happening.

With respect to the personal data collected in censuses after 1918, the panel seems to think that legislation would probably be necessary. This distinction need not concern us for the moment because Senator Milne, out of an abundance of caution and prudence, has made her bill retroactive to everything from 1906 on.

What should concern us, however, are the reasons advanced by the panel for this retroactive action. First, the panel points out that nowhere in the regulations of 1906 and 1911, nowhere in the law of 1918 and nowhere in the parliamentary debates on those matters do they finds the words "perpetual," "eternal," "forever." On that basis, they say, "If words like `perpetual,' `eternal' and `forever' are not in the statute, then surely it must have been intended at some point to release the information."

Honourable senators, I have read you both the regulations and the statute from 1918. I believe those are clear. The idea that the absence in those laws of words like "perpetual," "eternal" and "forever" could justify legally, politically or morally the retroactive annulment of a confidentiality provision seems to me to be a very flimsy pretext by this panel to justify the conclusion and the recommendation they are making.

Their second argument is that it should be possible to infer from the fact that at some point a few generations ago it was decided that all the information would be transferred to the National Archives there is some intention, implicit, to release the information down the road. There, again, I do not think this follows at all. The fact that the information was being transferred to the archives "for future reference" does not imply an intention to release that personal information publicly. In any case, the law is well understood by the government, by Statistics Canada, by the public, by the National Archives of Canada and by the sponsor of this bill. The law prevents the retroactive release of this information. My friend has brought in a bill to have the law changed retroactively.

The third argument that the panel has advanced is international comparisons. They point out that in the United States there is a 72-year rule, that in Great Britain there is a 100-year rule, and that in Australia, starting now, they will have a 99-year rule in respect of personal data, provided that the individual respondent has given his or her consent to the eventual release of the data. Until very recently, it was the custom and the law in Australia to destroy all of this information, for cultural and historic reasons that concern Australia and need not detain us.

Honourable senators, I believe that none of these three arguments put forward justifies this retroactive legislation. Furthermore, no convincing argument has been put forward that the national interest would require this retroactive action by Parliament. If an argument of pressing national interest had been put forward, we would have to weigh it because there are no absolutes in this business. The only compromise that would be justifiable in terms of personal information relating to individuals is a compromise, an exception, for people wanting to trace their own family history, with safeguards written into it.

As far as the future is concerned, I point out that approximately 20 per cent of all respondents are required to answer the long form of the census. The long form is getting to be quite a long form and the information demanded of you is, in some cases, quite intrusive. It is taken under compulsion of law, with the guarantee of confidentiality. Therefore, if the government, or Statistics Canada, or whomever, wants to release this personal information taken in future censuses, it is a very simple matter. There should be a place on the form whereby an individual respondent who wishes to give his or her consent to the eventual release of personal information could so indicate. This, as I pointed out, is done in Australia. For whatever reason, the expert panel of the government also rejected this idea of a consent being required by individual respondents.

Honourable senators, this question of privacy is a very important one. My bias in weighing balance is always in favour of privacy. I acknowledge that. We must be conscious and vigilant on the question of privacy. I congratulate our friend Senator Finestone, who has brought forward, in the form of a private member's bill last week, a proposed federal privacy charter.

Let me say a word now about the context in which this bill is coming forward. In 1983, we passed legislation, the Privacy Act, to protect personal information that is collected by the government for official purposes. I think it is a pretty good act. When I came to look at it more closely in recent days, however, I found that some of the key issues are dealt with not in the act itself but in regulations passed under the act. Those issues include the length of time the government may hold this personal information in its possession, the circumstances under which this personal information may be released publicly, and so forth. These are issues central to the issue of privacy and we should never have let them get out of our hands. These are issues that should form part of the act and should be debated in Parliament and not left to a committee of ministers to pass them into law in the form of regulations, which is what happened. That is one problem that I want to flag for you.

Second, we passed Bill C-6 late in the last Parliament. That legislation protects the privacy of personal information collected on you for commercial reasons, for example, information collected by your credit card company, your insurance company, your bank or whatever. I thought it was a terrific bill and as such gave it my complete support, as we did on this side of the house. There are some problems about the health sector, but these are being resolved as we speak. There was also an element in that bill that got away from us. At the last minute, I attempted to have a subclause excised from the proposed legislation. My attempt was unsuccessful, but I intend to come back to it. It permits the disclosure 20 years after the death of an individual of personal information collected on that individual for commercial purposes.

This is not tombstone information collected by the government. This is information collected by your credit card company or your mortgage company or your insurance company, or whatever. I cannot see for the life of me why we should permit, under any circumstances, that information to be disclosed. I intend to -

The Hon. the Speaker: Honourable Senator Murray, I must interrupt now to observe that it is six o'clock.

Senator Murray: I will wind up immediately.

The Hon. the Speaker: Is it your wish, honourable senators, that the clock not be seen?

Hon. Senators: Agreed.

Senator Murray: Honourable senators, the philosophy seems to be that the passage of time diminishes the concerns about individual privacy. The philosophy seems to be that your right to privacy dies with you. In fact, I am informed by some legal experts we had before the committee that this is the case, that in fact your right to privacy dies with you. I do not think that is a view Parliament should take. I do not think it is the right view.

In my opinion on this bill, we could properly provide access to personal census information in the future by giving the individual respondent the right to consent or not to its disclosure. As for past censuses, I am opposed to retroactive legislation. I would compromise only to the extent of permitting exceptions with careful safeguards in the case of those who wish to do research on their own family histories.

The Hon. the Speaker: Honourable senators, I wish to clarify that it is our agreement that I not see the clock and, accordingly, we will proceed with the next speaker. I must advise that if Senator Milne speaks now, her speech will have the effect of closing the debate on the motion for second reading of this bill.

Hon. Lorna Milne: Honourable senators, I am sure that some of my colleagues in this chamber will be delighted to have the debate closed on this particular issue.

Before I begin, rather than leave some of the statements that Senator Murray has made on the record, I should make a few factual corrections. The first comprehensive census that was made in Canada, or in the area that is now known as Canada, was not in 1871. The first census in Quebec was in the 1600s. The first census taken from the Maritime region of Canada was in the early 1800s. The first comprehensive census for all of the regions that would become Canada was made in 1841.

Senator Murray: I said post-Confederation.

Senator Milne: Yes, now you have said it, Senator Murray.

In 1851, the first comprehensive census was taken in Canada and the questions were almost identical to the ones taken in 1861, 1871, 1881, 1891, 1901, 1911 and from then on right through until the time of the Second World War. The questions varied in only minor respects.

The regulations for the census were also identical. The wording for the regulations in the 1901 census, and I believe also in the 1891 census, was the same, word-for-word, as the ones for the 1906 census and the 1911 census, which are the ones we are quibbling about releasing. Those censuses were released with absolutely no adverse effect to anyone. There never has been a complaint about the release of historic census data.

I believe, and Canadians obviously believed at that time, that the regulations were intended to apply to the people who were employed at that time by Census Canada, or its predecessors, to take the census. They were not intended to apply to future census takers 92 years from now. They were intended for the contemporary census takers. When anyone is hired by Census Canada to take the census, they swear an oath that they will not run down the road and reveal to all their neighbours what they have learned from another neighbour. The point was that this data would be kept secret from their contemporary friends and neighbours, as Senator Murray has pointed out.

I wonder if, 92 years hence, Senator Murray would object to the senators sitting around him knowing his answers to the census. I suspect that neither he nor other honourable senators will be around.

Canadian history is more than stories about Canadian politicians, scientists, leaders and authors. It is about our own personal histories as well. Canadian history has a story to tell about how each one of us got where we are today. It is about our personal culture, our families and about the lives our ancestors lived. Indeed, there is as much value in learning about our families as there is in learning about the great and powerful people who lead our country. In order to know who we are as individuals, as well as citizens of Canada, I believe it is crucial to know where we have been.

Honourable senators, census records are the most accurate, complete and trustworthy source of information on the history of individual Canadian families. They are the only records that tie people together in families. Any genealogist will tell you, as Senator Murray has pointed out, that these records form the backbone of much of the research genealogists do about our past. These records are, in a sense, the keys that unlock the millions of individual histories of all Canadians.

Unfortunately, those Canadians who wish to study their family's personal histories will no longer be able to use the census records for their research. As a result of the modern interpretation of regulations that were put in place over a century ago and because of the legislation that was enacted in 1918, as Senator Murray has pointed out, these records have been deemed private and will never be released to the public. This bill is intended to correct that error.

Honourable senators, the effect of this bill is straightforward and, in fact, balances the interests of those who wish to study their own history and those who are concerned about privacy. The bill requires Statistics Canada to transfer census records to the National Archives within 30 years of the date of the census. The National Archives is then required to store and preserve this fundamental part of Canadian history and may release the information 92 years after the date of the census. In order to maintain the privacy of those who want it, any person may request that their records not be released, so long as the request comes during the last year before the scheduled 92-year release of the census.

Honourable senators, I believe this bill is well balanced and considered. It is the product of many consultations with many stakeholders, including the Chief Statistician, the National Archivist, the Privacy Commissioner and others, to try and arrive at a workable solution.

Honourable senators, I urge you to keep the history of individual Canadians alive by passing this bill in due course. I look forward to discussing it in committee and to hearing Senator Murray's amendments.

The Hon. the Speaker: It was moved by the Honourable Senator Milne, seconded by the Senator Finnerty, that this bill be read a second time.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

On motion of Senator Milne, bill referred to the Standing Senate Committee on Social Affairs, Science and Technology.