Statutes affecting Public Access of Historic Census Records
There are four Statutes of Canada that must be considered when dealing with the issue of Public Access to Historic Census records of Canada. Various clauses contained in Instructions to Officers and Enumerators of Census (having the 'Force of Law') must also be considered.
It is believed that Statistics Canada does not have lawful care and custody of Schedules of Census for 1911 and subsequent years. The National Archives of Canada Act provides that: (emphasis added)
"6. (1) The records of government institutions and ministerial records that, in the opinion of the Archivist, are of historic or archival importance shall be transferred to the care and control of the Archivist in accordance with such schedules or other agreements for the transfer of records as may be agreed on between the Archivist and the government institution or person responsible for the records."
The National Archivist of Canada, Ian E. Wilson, has determined that records of Census are of historic and archival importance. He has stated that they are, in fact, a National Treasure. As such, the clause of the National Archives of Canada Act above clearly states that these records shall be transferred to the care and control of the Archivist. It does not state that they might be transferred, may be transferred, or could be transferred, but clearly states they shall be transferred.
Each of the words referred to in the previous paragraph have very different and specific meanings in legal terms. The word shall, in legal use, denotes a mandatory action. The use of the word shall, therefore, does not give any measure of discretion in whether or not the records are to be transferred to the care and control of the Archivist. The records shall be transferred. Further, the reference here to "schedules or other agreements" would apply to when the records were to be transferred - not if they were.
It is believed that this clear and unambiguous clause gives to the National Archivist the statutory authority to compel the Chief Statistician to provide the records in question to the National Archives.
Instructions to Officers and Enumerators of Census for 1906, which Statistics Canada is so fond of stating have the force of law, state, in part, that records of Census "…have value as a record for historical use…"(Clause 20).
The Instructions further state "The census is intended to be permanent record, and its schedules will be stored in the Archives of the Dominion." (Clause 34). Identical, or similar, statements are included in each set of Instructions to Officers and Enumerators of Census from 1901 to at least those for 1946. It is difficult to envision a situation where records could have value as a record for historical use, be intended to be a permanent record and be stored in the Archives of the Dominion, if it were not intended that they would be accessible some time in the future.
Clearly then, the records of Historic Census (including those for 1911) should long ago have been placed in the National Archives and as such the lawful holder of care and control of the records in question would be the National Archivist. The question arises then about why the Chief Statistician of Canada currently has care and control of these records, and under what authority he does so?
If the National Archivist had lawful care and control of the records in question, as indeed the applicable legislation shows he should have, he would be able to allow public access to them in accordance with clauses in the Access to Information Act, and Regulation 6(d) of the Privacy Act.
Section 19, subsection (2)(c) of the Access to Information Act states:
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(c) the disclosure is in accordance with section 8 of the Privacy Act.
Section 8, subsection (3) of the Privacy Act states:
(3) Subject to any other Act of Parliament, personal information under the custody or control of the National Archivist of Canada that has been transferred to the National Archivist by a government institution for archival or historical purposes may be disclosed in accordance with the regulations to any person or body for research or statistical purposes.
Section 6, subsections (a) and (d) of the Privacy Regulations states:
(6) Personal information that has been transferred to the control of the Public Archives by a government institution for archival or historical purposes may be disclosed to any person or body for research or statistical purposes where
(a) the information is of such a nature that disclosure would not constitute an unwarranted invasion of the privacy to whom the information relates;
(d) in cases where the information was obtained through the taking of a census or survey, 92 years have elapsed following the census or survey containing the information.
In reference to the statutory clauses above, current release to the public of the schedules for the 1911 Census would be in accordance with the applicable legislation.
Statistics Canada states that by virtue of Section 17 of the Statistics Act being mentioned in Schedule II of the Access to Information Act, it exempts schedules of the 1906 Census from public disclosure. They state also that:
"Section 17 of the current Statistics Act replaced similar provisions going back to the Census and Statistics Act, S.C. 1905."
In point of fact, there is no provision similar to Section 17 of the current Statistics Act contained in the Census and Statistics Act, S.C. 1905. Nor does any statute prior to the Statistics Act of 1918 have a provision similar to Section 17.
What the Census and Statistics Act, S.C. 1905 does contain is a section that states:
6. The Minister shall make and prescribe all rules, regulations, instructions and forms which he deems requisite for the work and business of the office; and such forms, rules, regulations and instructions, and any such tables of rates of remuneration or allowance, as aforesaid, when assented to by the Governor in Council and published in The Canada Gazette, shall have the force of law. R.S., c.58, s.6, c.59, s.1.
Statistics Canada proudly proclaims that this section gives Clause 26 of Instructions to Officers and Enumerators of Census the force of law. Clause 26 makes reference to "secrecy of the information gathered by the enumerators and entered in the schedules or forms". What Statistics Canada chooses to ignore is that all clauses of those Instructions are given the force of law, including those that state records of Census have value for historical use, that they are intended to be a permanent record and that they will be stored in the Archives of the Dominion. Statistics Canada cannot pick and choose those clauses they want to have the force of law, and those they do not wish to have it.
Statistics Canada has many times stated that the difference between the records of Census for 1901 and earlier, which are publicly accessible without restriction, and the records for 1906 and later that have been restricted, is that Instructions for the 1901 and earlier Censuses did not have the force of law, while by virtue of the Census and Statistics Act, S.C 1905, Instructions for the Census of 1906 did have the force of law.
To paraphrase, "They know not of what they speak".
Each Census from 1871 to at least 1946 was announced by a Proclamation of the Governor General in Council. These Proclamations were included in Orders in Council and were published in the Canada Gazette. Each contained a clause similar to the following: (emphasis added)
6. That the details of information and forms to be used shall be as indicated by the schedules following and by the instructions and blank forms issued by our Minister of Agriculture [or the applicable Minister] for the working thereof, that is to say:-
In researching volumes containing Orders in Council it is noted that each volume consulted has a cover page containing a statement to the effect that "Orders in Council, Proclamations and Regulations, and/or Orders of the Governor General in Council have the Force of Law". If all Orders in Council have "the force of law", and it is easily proved that they do, then any documents -- such as Instructions to Enumerators -- referred to by those Orders in Council, would have that same "force of law".
It follows therefore, that the Instructions for Censuses of 1901 and earlier, had the same force of law that those for 1906 and later have.
The clause in the 1906 Census and Statistics Act giving the Instructions to Enumerators the "force of law" was redundant because the Orders in Council referring to the "instructions and blank forms", having themselves the "force of law", already gave the Instructions that force.
The Access to Information and Privacy Acts were born of the same Bill in 1980 through 1983. The same legislators heard testimony relating to the two acts, and made decisions accordingly. The Access to Information Act contains Section 24 (1) that states:
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
As earlier noted, Section 17 of the Statistics Act is listed in Schedule II.
Section 6(d) of Regulations attached to the Privacy Act makes specific provision for personal information collected through Census to be disclosed for purposes of research, 92 years after collection.
These two sections appear to be mutually incompatible. It makes no sense to have sections in complementary statutes, the effect of which is for one to completely cancel the other. The only logical conclusion is that, insofar as Section 17 of the Statistics Act is concerned, Section 24 (1) of the Access to Information Act was intended to be in force only until such time as the expiry of the 92-year period specified in Regulation 6(d) of the Privacy Regulations.
The opening section of the Access to Information Act states the purpose of the Act. It reads: (emphasis added)
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
The Act states further: (emphasis added)
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.
Statistics Canada, in refusing to turn care and control of Historic Census records over to the National Archivist, is acting in the utmost bad faith. Since the enactment of the Access to Information Act, Statistics Canada, insofar as access to Historic Census records is concerned, has acted in direct opposition to the stated purpose and intent of the Act.
240 years of records of Census, all that exist, up to and including the 1906 Special Census of the North-Western Provinces, reside in the National Archives of Canada. They are accessible without restriction to any person or body for purposes of research. Dr. Fellegi's predecessor, despite any possible misgivings regarding allowing disclosure, turned care and control of the 1891 and 1901 Census records over to the National Archivist. There has been no detrimental reaction of respondents to Census because those records were publicly available after 92 years. There has been no definitive study conducted that would substantiate Dr. Fellegi's suggestion that knowledge information provided to Census would be made available after 92 years would cause respondents to participate less fully or truthfully.