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EXTRACTS FROM HANSARD
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PROCEEDINGS OF CANADA'S SENATE:The following extract has been taken from Hansard Records of Canada's Senate:
Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 94
Thursday, March 7, 2002
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore
ORDERS OF THE DAY
Statistics Act National Archives of Canada Act
Bill to Amend-Third Reading-Debate Adjourned
On the Order:
Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Rompkey, P.C., for the third 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, our friend Senator Milne opened debate on third reading of her bill, Bill S-12, on February 19. At that time, I made a few preliminary remarks on behalf of Her Majesty's Loyal Opposition. I intend now to take up where I left off on that occasion.
Today, I want to refer briefly, but I hope satisfactorily, to the testimony that was heard by the Standing Senate Committee on Social Affairs, Science and Technology when it had the bill under study, to the report that the committee tabled in this place and to a compromise that I, and many others, believe is available, which strikes a better balance between the right of Canadians to privacy and the public's right to access to information.
This bill was before us for second reading debate in February and March 2001. I believe the main issues were canvassed thoroughly during that debate. The bill was referred to the committee, which heard witnesses on September 19 last. It considered the bill again on December 13 and reported the bill to the Senate on December 14.
I regret to say that I was not present at the committee. However, I have read the verbatim transcripts carefully. The committee report on this bill is essentially a narrative of the testimony that the committee heard on September 19, supporting or opposing the bill. In support of the bill, beside the sponsor, Senator Milne, there was the National Archivist, Mr. Ian Wilson, and the former President of the Canadian Historical Association, Mr. Chad Gaffield, who was a member of the expert panel on this matter. The expert panel was appointed by the government.
Opposed to the bill, at least in its present form, were Statistics Canada, as represented by Assistant Chief Statistician Michael Sheridan, and the Commissioner of Privacy, Mr. George Radwanski.
In its report, the committee notes the existence of this compromise proposal by Statistics Canada. I draw the attention of honourable senators to a paragraph in the committee report found in Issue No. 45, at page 10. Speaking of the compromise proposal, the committee said:
This proposal would provide more limited access than anticipated by Bill S-12. Access to historical census records would be provided only for genealogical research about one's own family and for historical research. Only family members (or their authorized agents) or those conducting historical research (peer reviewed by the Social Sciences and Humanities Research Council) would be given access. While access would be unrestricted, researchers would only be permitted to make public the following basic information: name, age, address, marital status and birthplace. Furthermore, those accessing information would have to sign a legally enforceable undertaking confirming that they agree to be bound by these terms.
A bit later, the committee concluded:
In summary, many witnesses and Committee members favoured the disclosure of historical census records after 92 years, but there was disagreement as to whether Bill S-12 provides adequate privacy protection. Some members of the Committee favour the provisions of the compromise proposal over the process delineated by Bill S-12. For these reasons, the Bill was agreed to on division of the Committee.
I think it is fair to say that the committee decided not to take the time that might have been necessary to try to come to a conclusion on the merits of the compromise proposal versus the bill itself and that they have thrown the ball firmly back into our court by sending the bill back to us adopted, on division.
When I spoke on September 19, I said the bill goes far beyond its stated purpose, which is to provide access to personal census records for genealogical or historical research.
The government has refused to make these personal records available because of regulations promulgated in 1906 and 1911 under the 1905 and 1906 Census and Statistics Act and because of legislative provisions passed in the Statistics Act of 1918, all of which require that personal information collected in the course of a census remain confidential. During the debate at second reading, I read the relevant regulations and provisions of the law into the Senate record. I will not repeat that exercise now.
The sponsor of the bill, Senator Milne, believes that the 1918 legislation and the 1906 and 1911 regulations have been overtaken by the 1983 Privacy Act and its provision for release of government information after 92 years. On the basis of her speech here on February 19, I acknowledge that she seemed to have some support for that position from the Department of Justice, or from at least one officer in the Department of Justice, judging by the quotations that she placed on the record on February 19.
If Senator Milne is right, then this bill is not necessary at all. All that remains is for the Department of Justice and/or the cabinet to instruct the Chief Statistician to turn over those records to the National Archives and provide immediate access to the 1906 personal census records and access next year to the 1911 personal census records.
However, the government and/or the Department of Justice have not done so. They continue, I think properly, to consider themselves constrained legally by the earlier legal enactments to which I have referred. I think it is safe to say that they believe themselves constrained also, morally and politically, by undertakings of confidentiality given by past governments.
Even the expert panel appointed by the government was of the view that legislation would be needed to release information collected since 1918 because of the confidentiality provisions in the law passed in that year. On that point, Mr. Radwanski said, when he appeared before the committee, and I quote from his evidence of September 19: While there may be some dispute as to what Parliament intended in the early censuses, there is none as to what the government actually said in its regulations and, from 1918 on, in legislation. Since 1971, when Statistics Canada began sending forms directly to respondents rather than using enumerators, respondents have been told in writing that their information will remain confidential.
We have this bill before us. I have to confess that one sympathizes - and I do - with Mr. Gordon Watts, an expert in genealogy, who came to the committee in support of the bill, when he told the committee:
I am interested in my ancestors. I am not interested in Mr. Radwanski's ancestors. I am not interested in Mr. Fellegi's ancestors. I am looking for my ancestors.
Just so, honourable senators, and that is the purpose of the compromise that was before the committee from Statistics Canada, and to which Mr. Radwanski referred, and to which the committee referred in its report.
I do want to share also with you several comments that were made by the Commissioner of Privacy in his testimony before the committee. He said:
This bill, of course, goes far beyond what has been proposed even by most of the advocates of access to census records, and far beyond the compromise that both I and the Chief Statistician have publicly supported. It also raises a deeply troubling issue by proposing legislation that limits or eliminates existing rights retroactively, and violates a promise repeatedly made to Canadians by successive governments. The bill, as you know, states that every individual who has filed a census return and has not made a valid written objection is deemed 92 years later to have given irrevocable consent to public access to his or her census return.
Later, Mr. Radwanski said:
This would apply to all censuses taken to date, despite the government having explicitly told respondents that their returns would not be accessible. To call this "consent" is frankly to debase the term and to cause real concerns to anyone who must be preoccupied, as I am, with the concept of meaningful consent with regard to privacy.
Mr. Radwanski also points out in his testimony that only the individual census respondent is considered to have any right of privacy. He mentions that none of the other people affected by census information would, under this bill, have any right to object. That could include relatives and descendants of respondents. Mr. Radwanski said:
Not only do the dead or very old lose their privacy, but so do their survivors. This could also include people who are not respondents, but who are included in a census record because they are part of a household.
Honourable senators, it could even include, as I discovered reading the long form that Statistics Canada put out, someone who happened to be spending the night in a particular dwelling the night before the census form was filled in. I will not speculate as to the possible implications of that.
One of the stated benefits of this bill has to do with information relating to the medical histories of one's ancestors. I note from reading the transcripts that Senator Graham raised this matter at the committee. When Mr. Radwanski referred to this as supposedly one of the most important benefits of the bill, he said:
I would respectfully suggest that it is one of the most dangerous aspects of this bill. One of the great emerging issues in the privacy field is the issue of genetic privacy and who has the right to the genetic information of an individual.
There has been reference earlier in the debate in some questions involving Senator Fraser, Senator Milne and me to other countries. Since February 19, I took the occasion to read census questionnaires not only of our own country but of Australia and of the United Kingdom, in the latter case what is called the "England Household Form." I must say that while the census forms of those countries are intrusive enough, they are rather less so than the Canadian long form in certain respects. There is, for example, no reference to same-sex relationships in either the England or Australia documents. Information that is required about sources of income is less detailed in the England and Australia forms than it is in the Canadian long form. In both the England and Australia forms, the respondent has the option of replying or not to the question on religion.
Finally, in Australia, as I pointed out on February 19, the information can be divulged after 99 years only if the person has signed his or her agreement. Let me just quote you the relevant provision, if I have it here, from the Australian form. Question 50: Does each person in this household agree to his/her name and address and other information on this form being kept by the National Archives of Australia and then made publicly available after 99 years?
Then it continues:
Answering this question is optional. A person's name and identified information will not be kept where a person does not agree or the answer is left blank. See page 15 of the census guide for more information.
I did not track it down that much. As you see, it is obvious that even after 99 years the respondent will have had to have signed his or her approval at the time of the census being taken, and that even after 99 years the personal information may not be divulged.
I also note in passing that income information is sought on the Canadian form, in particular the sources of one's income. It occurred to me, and I have confirmed, that this is the kind of information that, when we file it - as we do, with the Canada Customs and Revenue Agency in the course of filing our annual income tax return - is kept confidential forever.
Under this bill, however, it would eventually be made public. There is no exemption in the bill. The questions are quite detailed. You would fill them in and, under Senator Milne's bill, they would eventually be divulged, be made public. On February 19, I made reference to the representation Senator Milne made in her speech immediately preceding mine concerning allegations of bad faith or worse on the part of Statistics Canada, and in particular Dr. Ivan Fellegi, the Chief Statistician. I suggested at the time that we must give Dr. Fellegi and Statistics Canada the opportunity to reply to our colleague's representations.
My opinion on this matter is reinforced, having taken the opportunity to read the transcript of Senator Milne's speech. She states that the Chief Statistician has shown "complete and utter intransigence and inflexibility." She accuses him of failing to do what he is "legally and morally required to do." In particular, she makes the following representations: First, of providing "false information" as a basis of focus group studies commissioned by Statistics Canada; second, of "disregarding the will of Parliament" by not releasing the individual returns from the 1906 census; and, third, "breaking the law by withholding the 1906 and 1911 individual returns from the National Archives."
Honourable senators, these are serious representations concerning a senior public servant and the agency he heads, Statistics Canada. The public servant in question I know is highly respected and I also know that the agency, Statistics Canada, enjoys an excellent reputation at home and abroad. These representations have been made by a senator in the Senate. I believe we must deal with them. We will not have another opportunity to do so. The only way to do so, in my view, is to refer the bill back to the committee and have Statistics Canada answer on their own behalf. I intend therefore to move an amendment to make this possible.
I repeat, the substance of the bill before us, goes far beyond the stated objectives of the bill. I make my own the words of the Privacy Commissioner, Mr. Radwanski, who said:
My suggestion, senators, is to draft, introduce and then pass legislation that reflects the compromise position which precisely permits individuals to research their own genealogy, subject to undertakings not to use it for other purposes, and that also permits legitimate research, provided again that it does not get used in such a way as to compromise the rights of individuals in the kinds of areas about which we are concerned.
Then he uttered the sentence that I endorse completely:
There is a solution, and it is before us, but it is not the bill that is before the Senate at this time.
Motion in Amendment
Hon. Lowell Murray: Honourable senators, I move, seconded by Senator Stratton:
That Bill S-12 be not now read a third time but that it be referred back to the Standing Senate Committee on Social Affairs, Science and Technology for further study.
Honourable senators will know what I intend by that amendment, which is that the representations made by Senator Milne concerning Statistics Canada and Dr. Fellegi be taken up by the committee and that the appropriate officials of the government appear to answer to them.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Lorna Milne: I must say, honourable senators, that I would absolutely delight in having a further crack at Dr. Fellegi when he appears before the committee because there are many more questions I would like to ask him. I also want to make sure that the members of this chamber know that nothing that I said in my speech was news to Dr. Fellegi, because he had been in my office and we had spoken about this long before the Senate committee meeting.
He still did not come to that Senate committee meeting; he sent a representative. If it should happen to be that this bill is referred back to committee, which would not bother me a bit, I would like to have a time limit on the duration it may be before that committee. I would not like to see the bill sitting in limbo for another six months or a year. I would like to see the committee report back to the Senate perhaps by the end of April. Would that be a reasonable time frame?
If I can amend the amendment to add that caveat, I would like to do so.
Senator Murray: Honourable senators, I appreciate the point made by the honourable senator. I do not have a view on that. I would assume that is something that ought to be negotiated between the government, my friend and the chairman of the committee. Senator Milne: In that case, perhaps Senator Murray would want to add it to his motion.
Senator Murray: I hesitate to take it upon myself to instruct the committee as to a particular date to bring in its report, not having had the opportunity to consult with them. I have no objection in principle to imposing a deadline, if that is the wish of the Senate. Why do we not let it stand until next week until somebody has had an opportunity to discuss the matter with the chairman of the committee?
On motion of Senator Milne, debate adjourned.
