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Article Published March 15, 2004



Gordon A. Watts POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, gordon_watts@telus.net


Greetings Readers, and Members of Parliament


Bill S-13 is dead

One of the first orders of business of the new Session of Parliament was to pass a Bill allowing the government to bring forward Unfinished Business that the government felt was important enough that they want to see finished. The Bill did not bring forward all unfinished business but only selected items that had received second reading and/or had been referred to committee by the House of Commons. The government had only thirty days from the start of the Session to bring forward those Bills they wanted to see continued from the point at which they were at in the previous Session.

Bill S-13 had not yet passed second reading and referral to committee in the House of Commons and so did not fit the criteria to be brought forward. Additionally, Senator Lorna Milne requested that S-13 not be brought forward because it is seriously flawed. Therefore, for all intents and purposes, Bill S-13 died with the prorogation of the last Session of Parliament.

Discussions continue on Census issue

On Friday 5 March 2004 the Executive Assistants of Senator Lorna Milne and MP Murray Calder met with staff members of newly appointed Industry Minister Lucienne Robillard. While Bill S-13 was not brought forward from the last session of Parliament, the content of it is still a subject of discussion.

Prior to this meeting taking place I had been asked to prioritize our concerns regarding Bill S-13. I spent some time composing a four page response to that request and managed to get it finished and sent so that it would be received the next morning before the meeting took place.

Briefly, in far fewer words than used in the reply mentioned above the priorities I listed were, in order of importance.
  • no 'informed consent' for future censuses
  • no need to commit to an undertaking and no 20 year clause
  • no undertaking or 20 year clause to apply to 1911 or 1916 Censuses
In effect I indicated our priority was no conditions or restrictions at all and that we still seek to regain public access to Historic Census records on the same unrestricted basis as records up to 1906 are already available.

There was much more included, but most of that is covered in a letter, copied below, that I have sent to Industry Minister Lucienne Robillard so I will not repeat it here.

Following the meeting I received a message that included the following:
    "It was a good meeting, and Minister Robillard's staff were very receptive. We reiterated your point that it is up to the National Archivist and not the Chief Statistician to determine what information can and cannot be released under the Privacy Act. We also noted the flaws in S-13 that you have identified, mainly the "informed consent" provision and the "undertaking" and 20-year delay.

    We expect to have follow-up discussions on this, and hopefully will be able to arrange a direct meeting with the Minister, Senator Milne, and Murray Calder.

    Please be assured that this issue is still very much on the radar screen, whether or not we are able to get new and improved legislation passed before the election."
Another message stated:
    "We all agree that S-13 as presented previously would not be acceptable. .............We found Robillard's staff open and receptive."
While Bill S-13 may be dead, the issue of access to Historic Census records is not. The battle, and the discussion, continues.

A letter to Industry Minister Lucienne Robillard

    14 March 2004

    Hon. Lucienne Robillard
    Minister for Industry
    Parliament Buildings
    Ottawa, Ontario

    Minister Robillard

    I am sure you will be aware of a campaign, since early 1998, to regain unrestricted public access to Historic Census records, 92 years after collection, that has been withheld from us (believed illegally) by Chief Statistician Ivan P. Fellegi. As a leader of this campaign I would greatly appreciate some assurance that you have personally seen and read this communication, and that it has not simply been forwarded by your staff to Statistics Canada.

    As Co-chair of the Canada Census Committee, during the course of our campaign I have received tens of thousands of email and letters by concerned genealogists and historians. My Co-chair, Muriel M. Davidson, has received at least a similar number of email and letters. Those writing seek to regain the same, unrestricted public access to Census records after 1901 (now 1906), 92 years after collection, that is currently available for 235 years (now 240 years) of records up to that time.

    We have sent more than 62,000 signatures on petitions to the House of Commons and the Senate seeking to regain unrestricted public access to Historic Census records. On occasion Members of Parliament and Senators have remarked about receiving more email and letters regarding the Census issue than on any other subject. Motions and Private Member Bills seeking to regain public access to these Historic records have been presented in both the House of Commons and the Senate.

    We conducted a legal action that resulted in the release on 26 January 2003 of the 1906 Census of the Northwestern Provinces of Alberta, Saskatchewan and Manitoba. Within minutes of that release, scanned images of the original Schedules of Census were made available on the websites of the National Archives of Canada. We currently have a second legal action under way to obtain access to the 1911 National Census of Canada. We have every expectation that this action will be successful.

    As a result of our campaign, on 5 February 2003, the Federal Government presented Bill S-13 - An Act to amend the Statistics Act, to the Senate. This Bill was touted by the government as a 'compromise' that 'removes a 'legal ambiguity' that prevents the transfer of Historic Census records to the care and control of the National Archivist. In actual fact, Bill S-13 - when compared to existing applicable legislation - neither removes any 'legal ambiguity' nor is it a 'compromise'.

    Bill S-13 would have provided public access to Historic Census records. It would also have placed conditions and restrictions on that access for that access. No need has been demonstrated for those conditions and restrictions and there has been no public outcry seeking them. Those seeking access to the records do not desire them. There is no reason, when 240 years of existing records are currently available without restriction, for any additional conditions and restrictions imposed on records from 1910 to 2003, or beyond

    Bill S-13 died on the Order Paper when the last Session of Parliament was prorogued. We are pleased that it has not been brought forward to the current Session and that Senator Lorna Milne has requested that it not be brought forward because it is deeply flawed. We agree with that sentiment. Senator Milne has been our 'champion' in the Senate and she is well aware of our feelings regarding unrestricted public access to Historic Census records.

    We are aware of discussions taking place between your staff and the staff of Senator Milne and MP Murray Calder, our 'champion' in the House of Commons. We are aware also that although Bill S-13 is now 'dead' it still forms a part of those discussions. Much of what follows below makes reference to Bill S-13 but you will understand that we have no desire to see it resurrected. Nor do we wish to see any subsequent Bill that might be forthcoming include the conditions and restrictions contained within S-13.

    That being said, the comments below express not only my personal feelings, but the feelings of the vast majority of those who have expressed opinions by contacting us directly or by posting to various mail lists, including the Canada Census Campaign mail list which I administer.

    In general, we feel that the conditions and restrictions contained in Bill S-13 are not the result of representation by the people, but are the result of attempts by the Chief Statistician of Canada to gain power that current legislation does not confer upon him. Genealogists and historians had soundly rejected those conditions and restrictions long before S-13 was presented; yet they were still included in the Bill. If there has been a groundswell of public opinion that opposes access to Historic Census records after 92 years, and that seek such conditions and restrictions, it has not been apparent to those of us who seek access.

    We believe the conditions and restrictions of S-13 are a blatant attempt by the Chief Statistician to circumvent existing legislation (i.e. the Access to Information and Privacy Acts) that clearly states that personal information collected by Census shall be accessible by any person or body 92 years after collection. The National Archives Act clearly states that it is the National Archivist - not the Chief Statistician - who has the authority to determine what government documents are of historical or archival value and that shall be deposited in the National Archives. S-13 would give that authority, insofar as Census is concerned, to the Chief Statistician.

    We believe the refusal of the Chief Statistician to transfer care and control of the historic records to the National Archivist contravenes current legislation and that belief has been solidified in our current legal action before the Federal Court. We believe that all that should be required is for the government to direct Chief Statistician Ivan P. Fellegi to obey existing legislation and to return care and control of Historic Census records to the National Archivist. To date they have refused to do so.

    By far, our greatest concern is the so-called 'informed consent' provision that S-13 would impose on Census records from 2006 on. People object to the fact that one person in a household would make a decision to withhold records for that entire household - including minor children, employees and servants, and adult visitors on the day Census is conducted. They object to the fact that as proposed in Bill S-13 the 'informed consent' provision would be an 'opt-in' provision. Government typically views a failure to respond to such questions as a negative, and records for those who have not responded to the question would be withheld.

    If we are forced to accept 'informed consent' for future Censuses in order to regain access then the condition of that 'informed consent' must be on an 'opt-out' basis so that the records of anyone not responding to the question would remain in and accessible after 92 years. The government suggested participation rate of 95 plus percentage is overly optimistic. This figure would not be supported by the Australian experience where the YES response for retention and release after 100 years for their 2001 Census was 53.7 percent.

    The value of Census records to genealogists and historians is in the completeness of the records. Anything that detracts from that completeness destroys the overall usefulness of the records. An 'informed consent' clause, whether 'opt-in' or 'opt-out', would automatically assure that records would be incomplete and their value for research purposes would be diminished. For historians the demographics would be incomplete. Many genealogists seeking information regarding their ancestors would be disappointed because information had been removed. Census is often the only record available for such information. If Census records from 2006 are incomplete because of withheld consent it could mean for some seeking their ancestors that there would be no source available for the information they seek.

    Many people, including Information Commissioner John Reid, believe that an 'informed consent' clause is too high a price to pay for acceptance of the terms of Bill S-13. I cannot stress strongly enough that those seeking access do not wish to see any 'informed consent' clause at all. The people have not sought such a clause and the government has not demonstrated any need for it.

    Next in order of precedence (objection-wise) would be the clauses imposing a need to commit to 'an undertaking' in order to access records from 1910 to 2003. This falls together with the imposition of a twenty-year period beyond 92 years in which the ability to 'publish' or pass on information found in the Census records would be restricted. When 240 years of past Census records up to 1906 have been made available without conditions the people see no reason for any conditions of access to be imposed on records from 1910 to 2003, or beyond. There is no reason - legal, moral, logical or otherwise, for any such restrictions to be imposed. Again, government has demonstrated no need for such restrictions and there has been no public outcry seeking them.

    Other than creating an additional bureaucratic process, what purpose does the need to commit to an undertaking accomplish? Who, besides the Chief Statistician and perhaps the past Privacy Commissioners, has asked for such a condition? How does the twenty-year period beyond the 92-year release of records protect anyone's privacy? The twenty-year period does not prevent anyone from accessing the records - all it does is make it difficult, for an extended period, for anyone wishing to 'share' their family history with others to do so.

    Next in descending order of precedence is the fact that S-13 would impose the requirement to commit to an undertaking, and the twenty-year restriction on the 1911 and 1916 Censuses. The 1906 Census was released and made available online with no conditions or restrictions on 24 January 2003. With the release and placing online of these records the government has conceded that existing legislation allows them to do so.

    The 1911 and 1916 Censuses were conducted under the same legislation and similar Instructions as was the 1906. Considering this, how can anyone reasonably say that additional conditions and restrictions should now apply to the 1911 and 1916 records? Ivan Fellegi opposes any retroactive amendments to legislation in order to regain access. He does not however appear to have the same opposition to retroactively imposing conditions that would restrict access. Do we perhaps see a double standard here?

    It has been suggested that the reason the 1906 Census was released without conditions was that it contained limited information. Not so. While the 1906 and the 1916 Censuses were limited in respect that they covered only the Northwestern Provinces of Alberta, Saskatchewan and Manitoba, they were both Censuses of population and agriculture, as was the National Census of 1911. The 1911 Census did include schedules for Manufacturer's Statistics but following the 1911 Census these were separated from Census and collected separately. Thus from that point on the National Census and the Census of the Northwestern Provinces sought similar information. In 1956 the two Censuses were combined and a National Census has been taken every five years since then.

    Bill S-13 makes specific reference to 'any census of population'. Such a reference in any subsequent Bill would, I am sure, be interpreted by our current Chief Statistician so as to prevent access to any 'census of agriculture'. This action would without doubt result in another battle with him such as that we have been going through since 1998. The Privacy Act and Regulation 6(d) make reference only to 'census' - not specifying either a 'census of population' or a 'census of agriculture'. Censuses of population and agriculture have traditionally been conducted together. In order to prevent another battle with the Chief Statistician, and to be consistent with existing applicable legislation, any future Bill regarding access must refer only to 'census' without specifying either a 'census of population' or a 'census of agriculture'.

    Bill S-13 made references to required 'undertakings', to 'regulations' prescribed by the Governor in Council on the recommendation of the Minister and the Minister of Canadian Heritage, and to penalties for persons who contravened such undertakings or regulations. Those expressing opinions about Bill S-13 object most strenuously to acceptance of any Bill without first being made aware of the details of such 'undertakings' and 'regulations'.

    The preamble of Bill S-13 stated that it "removes a legal ambiguity in relation to access to census records". In our view the only 'ambiguity' here is the refusal of the federal government to direct the Chief Statistician to obey the Laws of Canada and return care and control of Historic Census records to the National Archivist. It has been stated that the conditions and restriction of Bill S-13 are a 'compromise'. In our view they are not a 'compromise' but are instead a power grab by the Chief Statistician. A 'compromise' between privacy and access was made in 1980-1983 with the proclamation of the Access to Information and Privacy Acts. It is within these statutes that it is determined that personal information provided to Census will be kept confidential for a period of 92 years, after which it will be made available to 'any person or body for purposes of research'. Prior to the proclamation of the Access to Information and Privacy Acts, release of Census records was simply on the basis of archival practices - generally assumed to be after 100 years.

    If the true purpose of government is to 'remove a legal ambiguity in relation to access to census records' - a 'legal ambiguity' that I repeat we do not believe exists - that purpose can be accomplished by the simple addition to the Statistics Act of one clause, similar to the following:

      "Original schedules of Census, or authentic copies thereof, shall, thirty (30) years after collection, be transferred to the care and control of the National Archivist for subsequent public access in accordance with terms of the Access to Information and Privacy Acts, and regulations attached thereto."

    A clause such as this would ensure transfer of the records to the National Archivist, would ensure the access we seek and at the same time should relieve any concerns regarding privacy as the specified Acts determine when, and under what conditions such access would be granted.

    The Access to Information and Privacy Acts were intended to cover all government departments, including Statistics Canada, in defining what information may or may not be made available for public access, and under what conditions that access may be made or withheld. It is not the function of the Chief Statistician (a bureaucrat), or of the Statistics Act, to determine what records of government are of historical or archival value, or under what conditions such records are to be made accessible by the public. That is the function of Parliament, the National Archivist and, at present, the Access to Information and Privacy Acts.

    Ivan Fellegi started out stating that he was legally prohibited from releasing the records because of a 'promise' or 'guarantee' he claimed had been made in 1905 by the Laurier government that information given to Census would never be released. Even though requested to do so through Access to Information he has been unable to produce any documented evidence of such a promise or guarantee. Strike one.

    The Expert Panel on Access to Historic Census Records did not bring down the results that Dr. Fellegi expected. They found no reason to withhold the records and stated that they found no evidence that there had ever been any intention to withhold the records forever. They did not feel that a change in legislation should be necessary to provide access to Historic Census records. Strike two.

    Town Hall Meetings initiated by Statistics Canada attracted 157 presenters, 151 of which supported unrestricted access after 92-years to all Census records. Those presenters also rejected the so-called 'compromise solution' of Ivan Fellegi that included most of the conditions proposed in S-13. Strike three.

    Dr. Fellegi now claims that knowledge information given to Census would be released after 92 years would cause respondents to give incomplete or incorrect information. He claims that such knowledge would undermine the integrity of future Censuses. This is strictly supposition on his part. Asked if any study had been done after release of the 1891 and 1901 records that would substantiate this claim, staff of Statistics Canada responded that no known study of this had been done. No known study of this has been done since the unrestricted release of the 1906 Census records. Strike four.

    In the past 100 plus years, for more than one billion respondents to Census in Canada, England and Wales, and the United States there has not been a single recorded complaint regarding public access of Census records after a period of closure. Strike five.

    How many more strikes will be necessary before the government gives us the unrestricted access to Historic Census records we seek?

    You will note that I have used phrases such as 'regain public access to Historic Census records' and 'return control of Historic Census records to the National Archivist'. I do so deliberately. Genealogists and Historians are not trying to gain something that we have never had - we are trying to regain what has been improperly, and believed illegally, taken away from us by the Chief Statistician. Care and control of the Historic records should not need to be returned to the National Archivist because according to existing legislation and Instructions to Officers and Enumerators of Census he should have that care and control to begin with.

    Madame Minister, I thank you for taking the time to personally read my letter. I realize that it is lengthy but the subject matter is of vital importance to an estimated 7.5 million Canadians - a not inconsequential number of people. I will close by reiterating what the people seek - which is exactly the same, unrestricted public access to Historic Census records after 1901 (now 1906), 92 years after collection, that is currently available for 235 years (now 240 years) of records up to that time. Thank you again.

    Sincerely,

    Gordon A. Watts gordon_watts@telus.net
    Co-chair, Canada Census Committee

    Tel (604) 942-6889
    Fax (604) 942-6843

    CC:
    Prime Minister Paul Martin; Senator Lorna Milne; MP Murray Calder; Ian Wilson - National Archivist; John Reid - Information Commissioner
Complaints to the Information Commissioner

In my last column I reported that Dan O'Donnell, the investigator in the Information Commissioner's office assigned to our complaints re: Statistics Canada felt the Information Commissioner would give his response about the end of February or beginning of March. At the end of February I contacted Mr. O'Donnell once again to get a progress report.

Unfortunately I was advised that there was to be a delay from his earlier prediction because it was found necessary to obtain some additional submissions. It is believed these submissions were coming from government departments. Mr. O'Donnell expected this additional delay would be about four weeks, putting the expected time of delivery to about the end of March. We will call for a further update at that time.

The legal action

All is currently quiet on the Legal front. Everything that can be done for the moment has been done. As reported in my last column - on 13 January 2004 we were officially advised that the Court had confirmed a date for our hearing. It will take place in Calgary at 9:30 AM, 8 June 2004. Until then we can only wait.

While the date for our hearing has been set, I do not expect that we will receive a decision at that time. It would not be unusual in cases such as ours that the Judge would reserve decision until he/she has taken some time to study the evidence presented by both sides. How long that would take remains to be seen.

Parliament in recess

Parliament is in recess from 15 March until their return 22 March 2004. They then sit again for two weeks after which there is another two week recess from 5 April, returning 19 April. It is reasonable to assume that many Members of Parliament will spend at least some time in their constituency offices during these periods away from Parliament Hill.

This would be a great opportunity to make an appointment to visit your MP and tell him/her of our concerns regarding access to Historic Census records. Let them know that what we seek is the SAME, UNRESTRICTED access to Historic Census records, 92 years after collection, that we currently have for 240 years of Census records up to and including those for 1906. We seek nothing more than the same access we have had in the past.

Before visiting your MP check their current position regarding access to Historic Census records on the Scoreboard on the Post 1901 Census Project website. Correspondence logs of each MP, accessible from the Scoreboard, now include the addresses of constituency offices. Give your thanks to those who have Gold Ticks of support, and try to get a commitment of support for access from those sitting on the fence, or those who have not yet responded to our questions of support. If you get a response that is different than that shown on the Scoreboard please let me know so that the Scoreboard can be updated.

Canada Census Campaign mail list

For those few out there who may not yet be aware of it, we have a mail list intended to be a forum for those concerned with regaining public access to Historic Census records in Canada.

If you have some concerns or comments you wish to express regarding the refusal of Chief Statistician Ivan P. Fellegi to turn care and control of Historic Census records to the National Archivist for subsequent public access - if you want to let others know what you are doing to encourage public access to the records - if you want to post your letters re: the Census issue to MPs or Senators - this is the place to do it.

To join in List Mode, send an email to with ONLY the word SUBSCRIBE in the Subject line and body of the message, with no other text. To join in Digest Mode, send your email to Send this column to a friend

For those who may not yet have noticed, it is possible to send this column to a friend (or your MP). A window below allows you to input an email address to send it to, and allows you to insert a few comments regarding it. Feel free to forward any of my columns to anywhere you feel there may be an interest in it.

Until next time. Happy Hunting.

Gordon A. Watts gordon_watts@telus.net

Post 1901 Census Project Web Site: http://globalgenealogy.com/Census
en français http://globalgenealogy.com/Census/Index_f.htm


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