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Article Published November 26, 1999 Vol. III No. 24



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


Industry Minister John Manley appoints panel


Greetings Readers, and Members of Parliament

The most important item since the writing of my last column has been the appointment by Industry Minister John Manley of an expert panel to study the release of Historical Census Records. The panel was appointed 12 November 1999 and will be chaired by Dr. Richard Van Loon, president of Carleton University and a former public servant in the federal government.

Also on the panel will be Chad Gaffield, director of the Institute of Canadian Studies, Gérard LaForest, a retired Supreme Court judge, Lorna Marsden, president and vice-chancellor of York University, and John McCamus, a professor at York University's Osgoode Hall Law School. The report of the panel is to be presented by 31 May 2001. While none of these esteemed panel members were reported to be genealogists it is to be hoped that at least one of them has interests in this direction.

The press release of 12 November 1999 stated:
    "The members of the Expert Panel are highly regarded Canadians who have been appointed on the basis of individual merit and are well known for their expertise and long-term interest in historical research and privacy issues"
The article further stated that members will participate in the work of the Panel in their personal capacity and not as representatives of groups or organizations. The Expert Panel on Access to Historical Census has been asked to recommend an approach which seeks to balance the need to protect personal privacy with the demands of genealogists and historians for access to historical census records.

The appointment of this Expert Panel, while long overdue, is most welcome news. It is my opinion that the appointment has been a direct result of the support of all of you who have written your letters and voiced your opinions re: release of Post 1901 Census records. Our voice has been heard.

The following Terms of Reference were provided to Committee member Muriel M. Davidson by Nelson Riis, MP for Kamloops, Thompson & Highland Valleys. They are also available on the net at http://www/statcan.ca/english/census96/terms.htm

TERMS OF REFERENCE

Expert Panel on Access to Historical Census Records

The inability to access individual census returns for censuses taken after 1901 has generated considerable public debate and interest over the past several years on the part of genealogists, historians and archivists.

Canada's census records up to and including the 1901 Census are publicly available through the National Archives of Canada. The legislation authorizing these censuses did not contain confidentiality protections having the force of law. In accordance with the regulations under the Privacy Act these historical censuses were released to the National Archives 92 years after the collection date and made available to the public. Access to these early census records has permitted the analysis of past personal and community histories by genealogists and historians.

The Privacy Act, however, also stipulates that where other acts provide specific protection to personal records, the provisions of such other acts must prevail. It is this provision which, according to a legal opinion received by Statistics Canada prevents the release of the post-1901 Census micro records. In fact, the 1911 and later censuses were taken under a legally valid guarantee that the information would not be shown to any other person. Moreover, these legislative stipulations have no time limitation.

The Expert Panel is asked to report to the Minister Responsible for Statistics Canada, the Honourable John Manley by May 31, 2000 regarding the legal, privacy and archival implications of providing access to historical census records. It is asked to examine the following issues:
    1. 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?

    On the one hand, the assurance of confidentiality of individual responses to the census was a promise made by the government to Canadians at the time of the 1906 and subsequent censuses and it is, apparently, a legally binding commitment. Furthermore, the legally binding assurance of confidentiality is an important element of public communication every time Statistics Canada asks Canadians to respond to the census or to any one of the Agency's surveys.

    On the other hand, the public release of census information some 92 years after collection would allow historians, researchers and genealogists to shed light on personal and community histories of Canadians. The National Archivist has declared that Canada's census is a national treasure which must be preserved. It may well be that Canadians' sense of privacy would not be threatened by the imposition of time limits on the promise of confidentiality protection.

    2. What options exist to provide access to historical census records?

    Statistics Canada has already developed two options: the first option contemplates amending the Statistics Act to allow records, starting with the 2001 Census and carrying on from there, to be transferred to the National Archives of Canada to be subsequently made available to the public; the second option is to retroactively change the confidentiality provisions of the Statistics Act to the 1911 and all censuses taken thereafter to be eventually placed in the public domain. Either of these options have implications that the Panel is asked to explore. A third option that others have identified would involve securing informed consent.
Finally having considered the issues and options, the Panel is asked to recommend an approach which seeks an appropriate balance between the need to protect personal privacy and the demands of genealogists and historians for access to historical census records.

If you wish to make your views known to the Panel on this issue, please write to:

Expert Panel on Access to Historical Census Records
Statistics Canada
Ottawa, Ontario K1A 0T6

Or, you can send an email to:

expert.panel_comite.experts@statcan.ca

I would suggest that any submissions to the Panel be polite, factual, and non-emotional. When quoting statutes, etc. include references to those statutes. You can rest assured that the panel will hear from Statistics Canada and Privacy Commissioner Bruce Phillips. Further developments regarding this will be posted as they are made known.

The appointment of this panel should not be a signal that we can slacken our efforts in writing letters, sending email, or signing petitions. If anything it should be a sign that we should increase our efforts in this direction. We now have another direction to send our letters to.

Opposition may have beneficial


Expressions of opposition to our efforts may have a beneficial side effect in that the problem is brought to the attention to many who may not yet be aware of it. Postings to the lists have increased following information released regarding Bruce Phillips opposition to release of Census records and Senator Lowell Murray's comments in the Senate regarding "to hell with… historians".

Many still not aware of Census problem


Almost daily I receive email, or see postings on the lists, that many Canadians are still not aware of the problem regarding release of Post 1901 Census. This appears not to apply only to individuals, but to many genealogical, historical, and family history societies. Even some archives have been reported not to know of the problem. Get out there people!! Spread the word!!

One of the listers to the Canada-Census-Campaign mail list, Jacquie Nex of Sooke, BC, has decided to use some of her spare time to remedy this situation. She is working to compile a complete list of genealogical, historical and family history societies in Canada with the goal of informing them about problems with release of Post-1901 Census.

Jacquie has taken on a big job and I would ask that anyone who can, please help her with this project. Jacquie requests that anyone belonging to a society contact her with the status of that society in regards to Census. Please advise her of fax numbers, and email and snail mail addresses. Contact Jacquie at

jacnex@idmail.com

The promise. IT DOES NOT EXIST


Even though Statistics Canada, and Privacy Commissioner Bruce Phillips have referred variously to a promise of confidentiality in perpetuity, an explicit guarantee of indefinite confidentiality, or an unqualified promise of confidentiality, try as I might I have been unable to find any reference in any statute that makes mention of such a promise or guarantee. Statistics Canada, to date, has been unable to supply specific answers to my specific questions regarding this. It is my firm belief that this promise does not exist.

I copy below a letter I have sent to Privacy Commissioner Bruce Phillips. I have sent a similar letter, with appropriate word changes, to Senator Lowell Murray. As of the date of writing this column I have received no answer from either of them.
    Letter to Bruce Phillips, Privacy Commissioner

    22 November 1999

    Mr. Bruce Phillips
    Privacy Commissioner

    As one of those leading the campaign to obtain release of Post 1901 Census records to the public, I have been concerned with statements in the press attributed to you in opposing the release to the Public of Post 1901 Census records. You have been quoted as stating

    "The issue here is privacy. It's having control of your own information - and not having people with a vested interest in getting into your personal information, without your consent, deciding what the rules are."

    I submit to you, Sir, that information in Census relating to my ancestors belongs to me, and to my brothers, sisters, cousins, Aunts, Uncles, and every other relative that I have. This information belongs to me by right of inheritance. It belongs to me by right of the taxes my ancestors paid to have the Census collected If wishing to know the names, birth dates and places, relationships, places of residence, living conditions, religion, country of origin, time of immigration, etc. of my ancestors causes me to have a vested interest, then I plead guilty.

    As things stand today, I do not have control of my information - you do! I am not deciding what the rules are - you are! You are deciding those rules on the basis of a misinterpretation of 93 year old legislation.

    You have been further quoted as stating (emphasis mine)

    "People who give information to the government under penalty of law on an unqualified promise of confidentiality are entitled to expect that that trust will be honoured."

    Statistics Canada in the past few years has produced various documents that have made reference to a promise of confidentiality in perpetuity. They have widely circulated a document entitled Access to 1911 and other Post-1901 Census Records. Many MPs, in responding to letters from their constituents, have quoted much of this document verbatim in a poor attempt to explain why Post-1901 Census records cannot be released to the Public. This document, which I am sure that you have seen, included the question (emphasis mine)

    "Should Parliament declare, in effect, as invalid the explicit guarantee of indefinite confidentiality that was promised to Canadians when the data were collected?"

    I have spent considerable time in researching and studying various statutes, proclamations, Instructions to enumerators, etc. from the early part of the century to the present day. I believe that I have studied most of the legislation and documentation relevant to collection of Census since 1906. Have you? Or have you taken at face value what Statistics Canada has been saying about promises and guarantees?

    Nowhere in my research have I found any reference to a promise of confidentiality in perpetuity or of an explicit guarantee of indefinite confidentiality. There are of course, clauses referring to confidentiality. These clauses are written in the present tense and contain no reference to any time frame. I feel that if legislators of the day intended that Census records would never, ever be released, they would have included wording that would make that intent very clear.

    With the exception of the Privacy Act, I found no clauses that allow transfer of Census records to the National Archives. More to the point, I found no clauses that would prohibit that transfer. There is simply silence in reference to any time frame for confidentiality, or for transfer of Census records to the National Archives.

    In my limited experience with the law it has been my understanding that when one statute is silent regarding a particular issue while another statute is not, the statute that is not silent would govern. The Privacy Act provides for transfer of Census records to the National Archives 92 years after collection. As the Census Act, in it's various incarnations, has been silent regarding transfer of Census records to the National Archives, the provisions for transfer in the Privacy Act should prevail.

    The citizens of Canada are of course entitled to their privacy. I would suggest however that they are concerned about that privacy in the present time, not 92 years down the road. Much has been said about striking a balance between privacy and access to information. In your letter to the Chief Statistician of Canada (11 January 1999) you referred to certain proposals to amend the Statistics Act to allow for the transfer of identifiable census returns to the National Archives. Your letter stated

    "It will come as no surprise to you that this Privacy Commissioner has not been persuaded that it represents an acceptable balance between the preservation of individuals' privacy rights and the interests of researchers and genealogists."

    Mr. Phillips, you appear not to believe in balance as your public position advocates total secrecy of Census records for ever and a day. If this is your idea of balance I would not wish to be on the end of your teeter-totter. Our legislators at some point obviously thought that 92 years was sufficient to protect the privacy of respondents to Census. Had they not felt this way they would not have included a clause in the Privacy Act that allowed transfer of Census records to the National Archives 92 years after collection

    Our research has found no indication that respondents concern about privacy in Census had to do with descendants seeking information on family 92 years down the road. All indications are that concerns had to do with a distrust of the government and a fear that information from Census may be cross-indexed by other government departments. This is borne out by the inclusion of a statement in Instructions to Officers, Commissioners and Enumerators for the censuses of both 1906 and 1911 that

    "The facts and statistics of the Census may not be used except for statistical compilations, 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."

    An article in the Calgary Herald of 26 May 1931 elaborated on this by stating that information from Census would

    "have nothing to do with taxation, military service, school attendance, the regulation of immigration, or the enforcement of any law."

    Mr. Phillips, in your 18 February 1999 report to the Senate, you responded to questions from Senator Kinsella. You indicated that the greatest number of complaints received by your department had to do with data matching (cross indexing) of information between government departments. Most notable were those between Human Resources Development Canada (671 privacy complaints) and Revenue Canada (356 privacy complaints) that you indicated were related to one particular issue. That issue had to do with data matching between Revenue Canada and HRDC in order to find people who were out of the country while receiving unemployment insurance benefits. It would appear that even today, distrust of government, and fear of cross indexing of information between government departments has been justified.

    Nowhere in your report to the Senate, or in your Annual Report, did you indicate that you had received a single complaint regarding release of individual identifiable information from Census 92 years after collection. Responding to specific questions regarding release of individual identifiable information from Census Reports, both Louise Desramaux of Statistics Canada, and Marta Khan of the National Archives indicated these departments had never received a single complaint of this nature. I would suggest that more than 98 years with no complaints regarding release of individual information from Census is a pretty good record.

    Relating to the purported promise or guarantee of confidentiality forever, some weeks ago I asked Statistics Canada to provide me with information as to where this promise appeared, how it was worded, and how this promise was conveyed to respondents of Census. Specifically I asked

    "In regards to Census taken from 1906 to the present I wish to know: Specifically what clauses of what Acts spell out this never ending promise? The form (wording) of said promise of confidentiality in perpetuity. The specific means by which respondents were advised that said confidentiality would be forever. If possible I would like copies of such advice or references to where they might be found."

    Statistics Canada, while very cooperative, to date has been unable to provide specific answers to my specific questions as above. As you appear to have based your position re: release of Post 1901 Census records upon this promise I would ask of you the same questions I have asked of Statistics Canada. Show me the promise.

    It is my considered opinion, and I submit to you Sir, that this promise of confidentiality in perpetuity does not exist except in the minds of those who wish it to be. A promise that was never made cannot be broken. If you can prove me wrong, please do so. I say again, show me the promise.

    Thank you.

    Gordon A. WATTS gordon_watts@telus.net

Open letter to Senator Lowell Murray


I appear to have stirred up a few hornets in my last column in reporting Senator Lowell Murray's comment in the Senate "I say long live Sir Wilfrid Laurier and Bruce Phillips and to hell with these historians." I cannot say that I am unhappy about that.

The following open letter to Senator Murray was written by Sandra Devlin. As well as being the authour of East Coast Kin (Canada) in the Global Gazette, Sandra has a self-syndicated, weekly genealogy column appearing in 10 Maritime newspapers. Part of each column is devoted to FREE queries from family researchers. Sandra can be reached at devlin&@attglobal.net.

An open letter to Senator Lowell Murray intended for publication in The Guardian, Charlottetown, P.E.I. in my column In Other Words, Nov. 20, 1999

Written on Nov. 11, 1999 - Remembrance Day
    Senator Lowell Murray,
    The Senate of Canada,
    Parliament Buildings,
    Ottawa, Ontario
    K1A 0A4

    Dear Senator Murray:

    The following quote has been attributed to you as taken from Hansard, Senate Debates of Thursday, Nov. 4, 1999.

    " I say long live Sir Wilfred Laurier and Bruce Phillips and to hell with these historians.."

    If this quote is indeed accurately transcribed, I would respectfully point out to you, Mr. Murray, that Sir Wilfred Laurier is not likely to "long live" because he is already dead! This reminder is sent to you just in case you haven't read a good history book lately.

    As to the concluding thought in your statement above, such an on-the-record, broad-brush aspersion cast on historians from the chamber of sober second thought is frankly shocking coming from a person Canadians rightfully expect to act as a responsible leader of reasoned debate and an honourable gentleman. It is regretful that a person who holds power and influence would lower himself to the use of street-bully language, at any time, but especially in public forum. I would expect better manners and civility from my pre-school grandchildren on the playground.

    The above statement made during Senate debate of Bill C-6 (Personal Information Protection and Electronic Documents Bill) is lumped with your reference to a story in The Globe and Mail on Nov. 4. In that story, Privacy Commissioner Bruce Phillips threw the weight of his office in opposition to the campaign of thousands of historians and genealogists to retroactively legislate the release of census data collected after 1906. That is the year that the Laurier government passed into law a provision for the privacy of the information collected in the census under penalty of law by Statistics Canada from the citizenry-at-large.

    Incidentally and to point out that time does have a way of affecting change and a knowledge of history is useful to the understanding of this fact; in that same year 1906, The Lord's Day Act was passed in Parliament. Some 80 years later, the Supreme Court of Canada found it unconstitutional.

    Your comments of Nov. 4, Mr. Murray, while stressing a negative side of this worthy campaign, do not reflect the considerable House of Commons debate and public controversy over the issue of privacy in this decade which resulted in the duly enacted Privacy Act with a restrictive 92-year clause to protect living individuals. (By the way, Sir Wilfred was already dead even by then. He has been gone for 80 years.)

    You, sir, will probably make it into the pages of Canadian history by virtue of your political associations, your experience and your appointment to the unelected chamber. Perhaps even for an outrageous quote or two. Bruce Phillips will also likely get a mention. I do not begrudge either of you your rightful place in history. Why do you begrudge the same for the less well-known? Do you suppose they are less important than you?

    To withhold census data is to relegate the history of ordinary, everyday Canadians to obscurity. The unstated message here is that only prominent Canadians, like yourself, are worthy of note and study in history.

    I have long held this to be unfair. After noting your expressed viewpoint , I am even more convinced than ever that we must not lose track of the common majority, past or present ... many of whom have demonstrated a sincere interest in family and historical research and a wish to pass down to descendants an accurate and full account of their heritage.

    I hasten to add without fear of my meaning being lost in subtly, that family researchers and amateur historians work hard and faithfully on behalf of their families and communities, and ultimately en masse for the betterment of their country, and they do so willingly without benefit of a generous pork-barrel salary plus expenses and the promise of a disproportionate retirement pension. The generous benefits you enjoy as a senator are paid for by income taxes which derive their legislative origins from The Income Tax Act of 1917. The government of that day promised Canadians that income tax was not to generate government revenue, but a temporary measure to help pay for the war effort.

    One of the primary arguments raised by Mr. Phillips against releasing census data is that government promises must be kept. Surely Mr. Phillips' argument is misguided. Otherwise, with the Income Tax Act and a myriad of other examples of broken government promises in mind, his argument is, at best, a cruel joke which insults the intelligence of the Canadian public; at worst, part of the dangerous leadership mindset which, however earnestly held, mistakenly contends that large volumes of information collected by government and its agencies must be kept under wraps or destroyed.

    As an avid amateur genealogist and community historian, I freely admit my bias in favour of the release of census data after 92 years. As a professional journalist of 30-plus years, I fear the pervasive attitude of government bureaucrats dedicated to withholding as much information as humanly possible for as long as possible from the great unwashed, all under the guise of privacy. It suggests to me that leaders believe that only they are responsible and able, and that the masses are stupid, insensitive and irresponsible and are not to be trusted to understand, extrapolate or interpret too much information. There is a privacy versus freedom of information tug of war going on for all the wrong reasons. Far too often, freedom is losing.

    Advocates for the release of census data for historic and genealogical purposes DO respect the privacy of living people, the evidence of this is no quarrel with the 92-year rule. Any adult about whom potentially sensitive information might be revealed will be long dead after 92 years. The notion that this information may somehow embarrass their descendants, and therefore should remain secret, is ludicrous. It might be equally argued that it could benefit them. At any rate, it is a non-argument. What happened to a living person 92 years before, is now history, plain and simple.

    Under the law, as I understand it, a dead person can not be libeled or slandered. For all-too-obvious reasons it is impossible to commit crimes against them. One can't, for instance, murder a dead person. So how can their privacy be invaded?

    In matters of civil dispute, my limited legal knowledge again suggests that a next-of-kin can act on behalf of the estate of dead relatives. Ergo, Canadians, through their government, CAN and SHOULD act in the interest of full public disclosure of pertinent details about the lives of our forbears.

    Sincerely,

    Sandra Devlin

    PS Regretful, though isn't it, that Sir Wilfred Laurier is dead? I do so wish we could ask him about the "intention" of the promise of privacy granted 90-odd years ago. That intention is not clear to either side in this issue. Did Laurier foresee this day? Or, did Laurier really mean that census data would not be available to or used by others with vested interests regarding an individual during his or her life time?

    Like those people who had 19xx engraved on their tombstones without thought of likelihood they would live into the 2000s or the computer geniuses who failed to allow for 2000 and created the Y2K kerfuffle; providing for the long-term ramifications of any action has proven inherent fallacies.
Thank you for an excellent letter Sandra.

Until next time. Happy Hunting

gordon_watts@telus.net (formerly gordon_watts@telus.net)


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