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Article Published October 28, 2004
POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, firstname.lastname@example.org
Greetings Readers, and Members of Parliament
Response from Information Commissioner
Starting Monday 4 October 2004 the Honourable John M. Reid, Information Commissioner, sent out his response to our complaints regarding the refusal of Statistics Canada to return control of the records of the 1911 National Census of Canada to the National Archivist for subsequent public access. Although there had been a number of unexpected (at least by us) and frustrating delays the end result was worth the wait.
In a nutshell, as he had previously done for complaints related to the 1906 Census, the Information Commissioner found in favour of the complainants. He found that access to the 1911 records was authorized pursuant to existing legislation. He advised that he had requested Statistics Canada release the requested schedules and that the Honourable David Emerson, Minister of Industry, had rejected his recommendations. He sought consent from complainants to proceed on their behalf to the Federal Court for a review of the refusal by the Minister of Industry to release the records in question.
There were 90 complaints made by 90 individual complainants concerning access to the 1911 National Census schedules. While there are likely minor differences to the response to each complainant, they are probably very similar. Following is the text of my letter from the Honourable Mr. Reid.
Mr. Gordon A. Watts
1455 Delia Drive
Port Coquitlam, BC V3C 2V9
Dear Mr. Watts
I write to report to you, pursuant to subsection 37(1) of the Access to Information Act (the Act), the results of my investigation of your complaint made about the refusal of Statistics Canada (SC) to release to you the requested information. You had requested access to the schedules of the 1911 National Census.
First, let me apologize for an investigation that has taken much longer than both of us would have liked. Unfortunately, not all the actions that need to be taken to ensure a thorough and fair hearing of this matter were within our control. I thank you for your representations, cooperation and understanding.
During the course of the investigation we learned that SC's Access to Information and Privacy unit received your request on Jun 9, 2003, making July 9, 2003 the due date for a reply. SC responded to your request on July 8, 2003. All of the information contained in the schedules was withheld under section 24 of the Access to Information Act and section 17 of the Statistics Act. On July 28, 2003 we received your complaint about that response.
As a result of this investigation, I found that access to the withheld records is authorized pursuant to paragraph 19(2)(c) of the Access to Information Act by reference to subsection 8(3) of the Privacy Act and section 6 of the Privacy Regulations. On June 22 and July 22, 2004, I recommended that SC release the requested schedules. However, on August 24, 2004, The Honourable David Emerson, the Minister of Industry, informed me that he does not intend to follow my recommendation.
My reasons for recommending disclosure are set out in my letters to the Minister of Industry dated June 22 and July 22, 2004, copies of which are attached hereto and form part of my report to you.
Given the foregoing, I consider it appropriate to seek your consent to apply to the Federal Court, pursuant to paragraph 42(1)(a) of the Act, for a review of the refusal by the Minister of Industry to release the records in question. In deciding whether or not to give such consent, you should take into account the specific wording of the consent we are seeing (see form attached). You should also bear in mind that subsection 42(2) permits the person who initially requested access to records to appear as a party in any review commenced by the Information Commissioner pursuant to paragraph 42(1)(a).
I am advising you pursuant to subsection 37(5) of the Act that you are not limited by my recommendations. You are under no obligation to authorize me to make an application for a review of this matter before the Federal Court. You have the right to apply independently to the Federal Court, pursuant to section 41 of the Act, for a review of any refusal by the Minister of Industry to give access to requested records. Should you decide to exercise your right to apply for a review of this matter, your application should be filed in the Federal Court within 45 days of receiving this report and should name the Minister of Industry as the respondent.
There are 90 complaints made by 90 individual complainants concerning access to the schedules of the 1911 National Census. The Information Commissioner intends to bring one application for review before the Federal Court seeking relief for the benefit of all complainants who have provided their consent. However, copies of all signed consent forms will be filed with the Court as part of this application.
Should you decide to give consent, I would be grateful if you would provide a signed copy of the attached consent at your earliest convenience. The time within which I must apply before the Federal Court is also 45 days from the date of receipt of this letter.
Should you wish to discuss any aspect of this report, please do not hesitate to call my General Counsel, Daniel Brunet, at (613) 943-2411 or 1-800-267-0441; fax: (613) 947-5252.
The Hon. John M. Reid, P.C.
Our Legal Action
In a previous column I reported that the judge had ruled against our legal action. The negative decision of the judge was surprising to me to say the least. I had thought that if a decision was made strictly on the letter of the law that we could not fail to win our case. I am not a lawyer and have had no legal training but after reading the applicable legislation I felt that things were pretty straightforward. Obviously I have some things to learn.
I have finally had the time to read the decision of Judge Frederick E. Gibson. The short version of his Order was two brief sentences, i.e. "This application for judicial review is dismissed. There is no Order as to costs."
The 'Reasons for Order' were somewhat longer, however for the most part they seemed to concentrate more on past history rather than on specific points of law. Most of the 'reasons' given were largely derived from the Affidavit of Pamela White (Access to Information and Privacy Coordinator for Statistics Canada). There was little mention of the arguments put forward by Lois Sparling. The judge appeared to accept assertions by the affidavit of Pamela White that "the 1911 Census records have remained in the care and control of Statistics Canada, and its predecessors, since 1911." Almost the sole reference to our position is a single sentence, i.e. "This is hotly disputed on behalf of the Applicant."
What is surprising to me is that nowhere - not in the Affidavit of Pamela White, not in the Order of the Judge, and not in any legislation that I have read, do I find any reference to anything that would give 'care and control' of the 1911 Census records to Statistics Canada or its predecessors to begin with. The Honourable Justice Gibson simply accepted the word of Pamela White that it was so. On the other hand, clauses in applicable Instructions to Enumerators, having 'the force of law' would indicate that 'care and control' of those records should be the province of the National Archivist. This apparently did not sway the Honourable Justice Gibson in making his ruling.
For a number of reasons, not the least being how it might affect an action of the Information Commissioner should he decide to proceed to court on our behalf, we wondered about the advisability of appealing that decision. On 5 August 2004, our lawyer Lois Sparling stated her intent to appeal the decision of the Hon. Justice Gibson to the Federal Court of Appeal. Later, however, Lois indicated that after further deliberation and consultation she had decided not to appeal.
We had grounds for appeal and Lois felt our application should have been successful. However, she also felt an action in Federal Court by the Information Commissioner under the Access to Information Act should be easier to win. His action would be under modern legislation rather than the very old and technical grounds of mandamus and declaratory relief. It was felt better not to risk a contrary ruling in the Federal Court of Appeal that might make more difficult any action on our behalf by the Information Commissioner. As it turns out the Information Commissioner will be going to Court.
Even though we lost our own action, costs were not awarded against us. Money left over from our action for release of the 1906 Census, plus donations of under $100 for the 1911 action, were sufficient to cover disbursements. By the time you read this, those who donated $100 or more to the 1911 action should have received a refund. Our thanks go to all who contributed to the legal funds for either action.
New Bill on its way?
I recently received an email from someone who had called the Office of the Minister of Industry in an attempt to find out why the Honourable Mr. Emerson had rejected the recommendation of the Information Commissioner to release the 1911 Census records. She was unable to get an answer to that but was apparently advised that "both the Chief Statistician and Mr. Emerson are in favour of releasing historical documents, such as the 1911 Census ". She was also advised that "the two of them have been working together on a bill that would clarify the parameters ......and allow for the release of the information." Supposedly such a Bill would be tabled soon. My informant was apparently advised "everyone involved in genealogical research would like it." It seems to me the government told us that regarding Bill S-13.
I cannot speak to Mr. Emerson's personal feeling regarding access to 92-year-old Census records and will reserve judgement on that until I see some response to our messages to him. I am however, frankly sceptical when anyone tells me that the Chief Statistician is "in favour" of releasing the 1911 or subsequent Census records. The record shows otherwise.
I am concerned that any Bill that Dr. Fellegi plays a significant part in drafting will be, as was Bill S-13, more concerned with placing conditions and restrictions upon access to Historic Census records than it is on providing the access sought. In particular, I am concerned that it will include the "informed consent" clause that so many, including the Information Commissioner, have voiced objection to. In my opinion it was that clause, more than any other that caused the demise of Bill S-13.
We have stated many times that in our opinion no legislative changes are required to see the release of the 1911 and subsequent Censuses. Documentation that accompanied the response of the Information Commissioner to our complaints against Statistics Canada included information that strengthens that opinion. During sworn testimony Dr. Ivan P. Fellegi, Chief Statistician of Canada, admitted to a number of things that we have maintained all along. He agreed that there was no legal constraint on the transfer of the records to the National Archivist but at the same time stated that he was under no compulsion to effect such a transfer. We disagree with him on that point, but will let it lie for the time being. When all was said and done, he now stated that the withholding of the records from the National Archivist was a matter of a policy decision - something that we have believed from the start.
We submit that any policy decision to withhold control of Historic Census records from the National Archivist is, and always been a policy devised by the current Chief Statistician. It is a policy over which he has always had control. It is a policy that he could have changed at any time - simply by returning control of the records to the National Archivist.
As stated above, we do not believe any legislative change is necessary to release Historic Census records. If however, for the sake of clarity legislative change is desired, in our correspondence and on our current petitions we have suggested the wording for a single clause to be added to the Statistics Act. The wording of that clause is as follows:
It remains to be seen if the government pays any attention to our representations when drafting a new Bill. I will be watching with great interest for any new Bill that purports to provide the access we seek. I will in particular be watching to see what conditions and restrictions it might impose on that access.
Requests for 'sample' letters
Many people contact us wanting to be sent a letter that they might copy and send to MPs and Senators. At one time there were several sample letters on the Post 1901 Census Project website but they rapidly became outdated and were no longer relevant to current happenings. As a result they were removed from the website.
There is an inherent disadvantage in providing a sample letter in that after receiving so many identically worded letters those to whom they are directed tend to view them as 'form' letters and for the most part they are ignored. It is far preferable for each person writing to put things in their own words so that each message, even though they seek the same thing, is slightly different.
This being said, in writing your letters you should be aware of the following relevant points:
You want a response to your letter so be sure to include full contact information, i.e. name, address, postal code, etc. Some MPs and Senators prefer to contact constituents directly by telephone so include your telephone number.
Many people pay more attention to letters that are hand-written (providing they can read the hand-writing) because they feel the individual has taken the time and effort to personally write out their letter. Next in order of preference are typewritten letters followed by email. If you send your letter by email, take a few minutes to print it out and mail it as well. If mailed in Canada, correspondence to MPs and Senators require no postage. Using envelopes of a colour other than white, or of a different size than the normal business envelope may more quickly catch the attention of the recipient.
My letter to MPs
29 August 2004
Member of Parliament House of Commons
Ottawa, Ontario K1A 0A6
Congratulations on your recent election as a Member of Parliament. To have the trust and respect of those who voted for you is a great honour.
Members who have been re-elected will be aware of an issue affecting a great many Canadians that seek their personal ancestry through research of Historic Census records. Newly elected Members may not yet be aware of this issue.
It has been estimated that in excess of 7.5 million Canadians have an interest in genealogy and family history. These individuals seek to regain the same public access, with no added conditions or restrictions, to 92-year-old records of Census after 1906 that is currently available for 240 years of Census records up to that time. Access to Census records after 1906 is prevented at this time because of the (believed illegal) policy of a federal civil servant - Dr. Ivan P. Fellegi - Chief Statistician of Canada.
The Library and Archives of Canada Act (and it's predecessor) has designated to the Librarian and Archivist the authority to determine what records of government are of archival or historical value and that shall be deposited in the National Library and Archives. Librarian and Archivist Ian E. Wilson determined that schedules of Census have archival and historical value. He declared them to be a National Treasure. He requested the Chief Statistician to return care and control of the records in question to his authority. Dr. Fellegi denied that request.
The Access to Information and Privacy Acts, and Privacy Regulations, make specific provision for personal information collected through Census or Survey to be made available to any person or body for purposes of research, 92 years following collection. The legislation assumes these records to be under the care and control of the National Archivist.
By refusing to return care and control of the records in question to the Librarian and Archivist for subsequent public access the Chief Statistician has acted in deliberate contravention of the Library and Archives of Canada Act, the Access to Information Act, and the Privacy Act. He has usurped the authority of the Librarian and Archivist to determine what governmental records are of archival or historical value and that shall be deposited in the Library and Archives of Canada. In dictating policy instead of following policy determined through legislation passed by Parliament he has usurped the authority of that body.
Do you believe that any Federal bureaucrat, regardless of how highly placed or regarded, is above the Laws of Canada?
Do you believe that a civil servant has the power to dictate policy that contravenes legislation passed by the Parliament of Canada?
The Access to Information and Privacy Acts are complementary Acts born of the same Bill debated and passed by Parliament. Do you believe the parliamentarians who passed this legislation would knowingly include clauses in one Act, the effect of which would be to totally nullify clauses in the other?
If your answer to any of these questions is 'NO' we ask that you support our efforts to regain the same public access - with no added restrictions or conditions - to Historic Census records after 1906 that is currently available for 240 years of Census records up to that time. We seek nothing new. We seek only that which current legislation states we are entitled to - access that we have had in the past but is currently (believed illegally) withheld from us by the Chief Statistician of Canada.
We ask that you call upon the Government of Canada to immediately direct the Chief Statistician of Canada to obey the Laws of Canada. We ask that he be directed to return care and control of schedules of Historic Census to the Librarian and Archivist of Canada for subsequent public access in accordance with the Access to Information and Privacy Acts.
We ask further that you ensure continued public access to Historic Census records by seeking a government Bill that would add to the Statistics Act a single clause, similar to the following:
Your response, stating your support (or otherwise) of the access we seek, will be posted to your Correspondence Log on the Post 1901 Census Project website. It will be available for viewing by your constituents on the MPs Scoreboard at www.globalgenealogy.com/Census
Thank you for taking the time to read my letter, and for your consideration of this very important issue.
Gordon A. Watts
Co-chair, Canada Census Committee
Letters are making a difference
Based on the number of responses received from MPs in the past while your letters and email are making a difference. At the moment we have 164 Members of Parliament that have expressed support for our efforts. This is an increase from the 139 Gold Ticks there were at the time I wrote my last column. Many of those responses have come from newly elected Members, however others have come from long standing Members who had not responded since we started our campaign more than six years ago. Three of those gold ticks have been awarded to Members from Quebec who had never responded before. The chart below shows the standings for the House of Commons at the time of this writing.
Petitions are coming in daily and as I write this I have around 3,000 signatures for the House of Commons ready to send. It is my understanding that Muriel Davidson has a slightly smaller number of signatures for the Senate and she may already have given some of these to Senator Lorna Milne. We need you to keep collecting signatures on petitions and sending them to us. Letters and email are important but we have no means of knowing how many of them have been sent to our Parliamentary representatives. With petitions sent through us we can total the signatures collected and point to the numbers to show support for the Census issue. Counting those signatures sent on our first petitions our numbers are now over 68,000
I recently received a copy of a newsletter from the Campbell River Genealogy Society. This newsletter, named 'The Treehouse' included a write-up by Christol Gilbert supporting the need to collect signatures on petitions. It also contained a center pullout that contained double-sided petitions for each of the House of Commons and the Senate. My thanks go to Christol and the Campbell River Genealogy Society for this way of expressing support for the Post 1901 Census campaign. I would encourage other genealogical and historical societies to include similar write-ups and copies of petitions with their newsletters. Not everyone has access to the Internet and this is one way of informing 'non-connected' members of the issue.
Join the Canada Census Campaign mail list
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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 email@example.com
Post 1901 Census Project Web Site: http://globalgenealogy.com/Census
en français http://globalgenealogy.com/Census/Index_f.htm