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Article Published March 24, 2000, Vol. IV No. 07 
POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, gordon_watts@telus.net Greetings Readers, and Members of Parliament My Submission to Expert Panel At long last my submission to the Expert Panel on Access to Historic Census Records has been completed and sent. It should be received by the Panel about the same time that I write this. I was undecided on how to present my submission in this column. Did I present the entire document at one time? Or did I present it in segments? In the end run I have decided to present it in it's entirety, less the appendices containing support documentation, and thus the entire column this time is devoted to the submission. The full document as included here is about forty printed pages, give or take a few, so you may want to save the column for viewing off line. Without further ado, here it is: The Myths of Census Submission to the Expert Panel on Release
of Historic Census Records Prepared by Gordon A. WATTS 1455 Delia Drive Port Coquitlam, BC V3C 2V9 Expert Panel on Access to Historical Census Records 25-B, R.H. Coats Building Ottawa, Ontario K1A 0T6 Esteemed Members of the Expert Panel: I am one of the leaders of a campaign on the Internet seeking to obtain continuing release to the Public, after a reasonable period of time, of Historic Census records. I have the pleasure, on behalf of many thousands of Canadians who have taken part in this campaign, of making the following submission. I ask the Expert Panel not to be daunted by the weight of my submission. In addition to the points I make, I have provided for ease of reference, a number of appendices containing extracts of documents, and correspondences to which I refer. Additional support documentation is located on the CD that accompanies the printed submission. The support documentation contains, among other things, extracts from the Debates of the House of Commons, and of the Senate in 1905 relating to The Census and Statistics Act (Chap. 5), and An Act to amend the Census and Statistics Act (Chap. 6.). These two Acts, when taken together along with a rearrangement of clauses, resulted in the Census and Statistics Act (Chapter 68) in the 1906 Revised Statutes of Canada. I was unable to find any debate in 1906, in either the House of Commons or the Senate referring to either Census or Statistics. The support documentation includes similar extracts of debates from 1918 relating to The Statistics Act (Chapter 43). They include also a number of correspondences between myself and Statistics Canada, the National Archives, and the Office of the Privacy Commissioner Bruce Phillips. I have spent a considerable amount of time researching many aspects relating to Census, including Proclamations and Orders in Council, publications of the Canada Gazette, all Statutes relating to Census and Statistics, from CAP XXI - An Act respecting the First Census of Canada (assented to 12th May, 1870), up to the Statutes of the present day, and Instructions to Commissioners and Enumerators for nearly all of the Censuses that have taken place since 1871. In doing this research I have formed a number of opinions and conclusions in which I hope members of the Expert Panel will concur. I include these opinions and conclusions in the attached submission. In making this submission I would advise that while I present it on behalf of many thousands (perhaps millions) of Canadians, I do not specifically represent any official organization. Although many involved in our campaign, including myself, belong to various Genealogical and Historical societies across Canada, we are simply ordinary people seeking information regarding our ancestry. I have had no education in Law, nor have I ever been employed in any capacity relating to Law. The research I have done relating to our campaign, and in preparing this submission, has been a completely new experience for me. In considering this submission you will forgive me, I am sure, for trying to read into the various statutes, proclamations, regulations, and Orders in Council, and other documentation, a little common sense. While I make this submission from the point of view of a Genealogist (albeit an amateur), most of what I present has validity for Historians, Sociologists, and others. I have viewed the credentials of the Panel on the Statistics Canada website. While the credentials for each Panel member are varied and very impressive, I note that there is no mention of any connection to Genealogy. I would have been happier had there been at least one member of the Panel selected from the Genealogy community. I will however, trust the Panel to consider the needs of Genealogists in formulating their final report to the Hon. John Manley, Minister of Industry. I would ask that you give similar weight to my submission as you do for those submitted by official organizations. The fact that I do not make this submission in the name of any official organization should, in no way, diminish the import of what I have to say. In your deliberation of my submission, and those of others being submitted, I am certain that you will come to the conclusion that release of Historic Census records, as permitted by clauses in the Privacy Act, does not constitute an unwarranted intrusion into the privacy of individuals. I am sure you will find also that the present position of Statistics Canada, and Privacy Commissioner Bruce Phillips, does not represent a reasonable balance between Access to Information and personal Privacy. Total closure of Historic Census records does not present any kind of balance. Thank you for taking the time to read this letter and to consider my submission. Sincerely, Gordon A. WATTS Introduction
In preparing this, my submission to the Expert Panel on Release of Historic Census Records, I have had a number of things to consider. First, what is it that I want to say. Second, how do I want to say it - in other words, in what form do I present it to best advantage and to get my points across.The first part will take care of itself as I proceed through this submission. In my research I tried to consider what has taken place in the past as regard to Census. The what, for the most part can be seen by researching the legislation and various other documentation, if one has the time and inclination to search for it. More important than what happened, in my mind, was to find the reasons why the what had taken place. The reason why is somewhat more difficult to find, as this is not as frequently documented and it becomes necessary, sometimes, to read between the lines, so to speak, in order to find it. I have tried to place myself in the time frame of the events and to find the reasons for the events of the past. In regards to the second point, because of the volume of information involved, it would be futile to attempt presenting it in one part. I have therefore chosen to present the information in module form rather than trying to present it as a single entity. These modules, in some cases will contain extracts from Statutes and/or regulations, Proclamations, Orders in Council, etc. In other cases they will contain references to documents in the various appendices attached hereto. A CD has been prepared to accompany the printed submission to the Expert Panel. The support documentation on this CD includes statutes relating to Census and Statistics from 1870 to the present, Instructions to Census Officers and Enumerators for many of the Censuses, and several extracted letters and/or email from Members of Parliament to constituents. Questions from the Expert Panel I should perhaps begin my submission by attempting to respond to the questions posed by the Expert Panel in arranging the teleconference call of Wednesday 9 February 2000. I might say in regards the teleconference call that I was disappointed in the duration of this call. One hour was hardly enough to allow 12 or 13 participants from one end of the county to the other a chance to speak, let alone to allow members of the Panel to ask questions of the participants. I was disappointed also, when, having the opportunity to speak, I was cut off in mid-sentence when the call automatically terminated at the end of the one hour that had been booked. Due to the fact that the conference was late in starting, and Dr. Van Loon had indicated at the start that the call would be extended to about 15 minutes after the hour, it was a surprize when it was terminated exactly on the hour. It would have been prudent to have an operator check toward the end of the hour to determine if the call should be terminated, or be allowed to continue. I understand this is a common practice when a teleconference call takes place. In any case, the questions asked of the participants to the teleconference call were as follows:
Having found my individual or family in the records, I would do a systematic scan of the records before, and after, those found in my primary search. Particularly in earlier days, related families likely lived in the same area and would be found in the same group of Census records. Having found other individuals or families I believed to be related I would record information and take photocopies as done above for my primary search. Finding someone specific in Census records is not an exact science. A researcher could study Census records for hours, days, weeks, months, or years without finding who they are looking for. The odds are very much against pulling out a book or micro-form of Census records and immediately finding information on those whom you seek.
On occasion, not finding an individual within a family group in census can be as significant as finding them. Not finding a person within a family group, that had been found within that group in a previous Census, could mean that the individual has died, or has left the household because of marriage, in which case they might be found within another household with another family. Not finding a person could mean that they have not yet been born. Following the family through successive census can show growth and dispersal of the family, patterns of migration, and possibly give clues for the reasons for that migration. Information regarding recently deceased persons, giving cause of death, can be vital to persons seeking information regarding genetically transmitted diseases. While information in various other sources such as birth, marriage, and death records, newspaper articles and announcements, etc. can provide piecemeal information on persons about whom you know, they are of no use in providing information regarding someone about whom you do not know. Census is a prime source of information, rather than a secondary or tertiary source. Finding information regarding an individual in census allows you to seek other information regarding them from other prime sources such as birth, marriage or death records. In answering the third question posed by the Panel, and the balance of the second, I can do little better than quote from an article in Archivaria 45 (Fall 1998). The article, entitled Counting Archives In: The Appraisal of the 1991 Census of Canada was written by Jean-Stéphen Piché and Sheila Powell. The article, on page 32, states: (italics mine) "We also accepted the recommendation of Terry Cook's 1991 RAMP study, The Archival Appraisal of Records Containing Personal Information. This study states that "the national census is the single most essential personal information record in terms both of research for many disciplines and for genealogists, and of providing the core demographic information vital to the design, delivery, and modification by the government of its own major programs." This conclusion was affirmed by a seven-country group of experts from the International Council on Archives, which clearly suggest that Canada's perspective on the value of census records is shared by the international archival community. From the outset, we and our managers were certain that, regardless of their form or format, the census data to be preserved had to include identifying information in the form of names and addresses in order to permit future use that requires the identification of the providers of information, Current experience with users of census records in the custody of the National Archives demonstrates that many users require identifying information in order to conduct a wide variety of research. Genealogical research clearly requires that one be able to link the names and addresses of respondents to the data that they provided; many other areas of research, such as studies of communities, health trends, and social migrations, also require address information in order to group relevant data together. Apart from pointing to known research methods, we noted that archivists are not able to predict what new research types and needs may emerge in the future, or whether that research will require personal identifiers." The article continued: "Macro-appraisal analysis of other data collected by the federal and provincial governments led us to determine that the census was the single most complete and uniform body of demographic data in Canada. The provinces are responsible for maintaining records of births, marriages, deaths, adoptions, divorces, and changes of names. These records contain much of the data on individuals that has been traditionally sought by genealogical researchers: date of birth, date of death, names of parents, occupation of parents, residence, place of birth, cause of death, religious denomination, and date and place of marriage. The crucial difference between provincial vital statistics and the census records is that the provincial data is event-driven and thus recorded only at certain points in an individual's life when these events occur, while the census collects data at regular intervals throughout the course of a person's life. For example, provincial vital statistics on an individual who never married and who had no children would be limited to those collected during registration of their birth and death. On the other hand, census questionnaire forms would provide information at regular five year intervals on other aspects of a person's life, such as address, marital status, language, and the identity of the person who pays the rent or mortgage in the family. This information is collected on all individuals, and even more is collected on twenty per cent of the population through the long census form (Form 2B). This data is extensive, including information on ethnic origin and immigration data, aboriginal status, education, religion, labour force participation, income, housing, and disabilities. Data is also collected by a number of other federal government programs. Taxation records and records maintained for the purposes of administering federal Income Security Programs, such as the Canada Pension Plan and Old Age Security, contain information on date of birth, place of residence, income, marital status, and other individual characteristics, depending on the type of program. There is, however, no federal government system that contains all the types of data that are captured through the census. For the departmental systems, specific data elements are collected for the purposes of administering and delivering specific programs within a limited period of time. The data is relevant only to those programs and the more limited needs of those citizens interacting with them, and it is maintained only so long as is necessary to the delivery of these programs. The census, by definition, covers all Canadians." The Myths of Census There are a number of misconceptions or myths relating to census. They are:
Myth Number One There was a promise made by the government of Sir Wilfrid Laurier that confidentiality of Census was forever.
Statistics Canada has been consistent in stating that the government of Sir Wilfred Laurier, in 1906, made a promise of confidentiality in perpetuity relating to name-identifiable information provided by respondents to Census. Statistics Canada has widely released a document entitled Access to 1911 and other Post-1901 Census Records. In it they pose the question "Should Parliament declare, in effect, as invalid the explicit guarantee of indefinite confidentiality that was promised to Canadians when the data were collected?" The impression given by this document is that this promise or guarantee has been repeated for each Census since 1906. Privacy Commissioner Bruce Phillips has been quoted as saying "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.". While it is all well and good to state that there had been a promise of confidentiality in perpetuity, an explicit guarantee of indefinite confidentiality, or an unqualified promise of confidentiality, the fact is that there has been not one piece of documentary evidence produced to support these claims. A number of documents relating to this matter have been studied, including every Statute relating to Census or Statistics since 1870 to the present, many Proclamations and Orders in Council, and the Canada Gazette. A list of documents studied is included in an appendix to this submission. I am by no means a lawyer, however I found nothing within any of these documents that would preclude the transfer of Post 1901 Census records to the National Archives, and their subsequent release to the Public in accordance with terms of the Privacy Act. Nothing was found that could be construed as a promise of never ending confidentiality. One would assume that such a promise, if in fact it was made, would have to be conveyed to the public by some means. No such conveyance has been found in any form of documentation. A promise never made cannot be broken. On 25 September 1999 I directed an email to Ms. Louise Desramaux at Statistics Canada asking her to show me the promise. I asked the following: "In regards to Census taken from 1906 to the present I wish to know the following:
In reference to the clauses quoted above, I wrote an e-mail to Louise Desramaux of Statistics Canada. In that e-mail, dated 1 December 1999, I stated:
In my limited experience it has been my understanding that when one statute is silent on a particular matter while another is not, the statute that is not silent should govern. In this case the Privacy Act provides for transfer of Census records to the National Archives and it should govern."
There is nothing to suggest that the confidentiality provisions had any end date. There is a piece of legislation called the Interpretation Act that is used by lawyers in the interpretation of statutes and their meaning. Section 10 of that Act may be relevant to this discussion. It states: 'The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.' Therefore, the advice Statistics Canada has received on this matter is that the legislation prevents disclosure and the Privacy Act does not compel Statistics Canada to disclose information to the National Archives." David H. Flaherty, authour of Access to historic census data in Canada: a comparative analysis (Canadian Public Administration, Fall 1977, Vol. 20, No. 3, pp 481 - 498) wrote on pages 491 and 492: (italics mine)
Privacy Commissioner Bruce Phillips was asked the same questions as those asked of Statistics Canada. I asked him to show me the promise. I suggested that the promise did not exist, except in the minds of those who wished it to be. I asked him to prove me wrong. Unfortunately Mr. Phillips did not choose to respond himself but had Brian Foran, Director of Issues Management & Assessment do it for him. Mr. Foran did little more than quote legislation that I was already aware of, and repeated what I had already heard from Statistics Canada. Nothing in his response showed the existence of the promise. My letter to Privacy Commissioner Bruce Phillips, and the response from Mr. Foran appear elsewhere in this document. I am still waiting to be shown the promise. No-one has shown it to me. It does not exist! Myth Number Two Respondents to Census were told about this promise. There is absolutely no evidence that the people of Canada, until after the refusal of Statistics Canada to release Post 1901 Census, were told about a promise of confidentiality of Census that lasted forever. There has been nothing found in reference to such a promise in any of the Statutes, Proclamations, or Orders in Council. There have been no newspaper articles found that would have conveyed such a promise. While Instructions to enumerators and others involved in the collection of Census contained clauses directing them as to the secrecy of the forms and schedules that they handled, there is no indication in these instructions that respondents were to be advised about that secrecy. The only reference to advising respondents about confidentiality was that the enumerators should, if asked, advise 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." This same reference has appeared in the Instructions to Officers, Commissioners, and Enumerators for every Census from 1901 to at least 1946. While worded differently, concern regarding taxation in connection with Census is evidenced in the Instructions to Officers for the First Census of Canada in 1871 and is repeated in the Instructions for the Census of 1886 and 1891. In reading the Instructions from successive Census it is observed that there is normally little or no change in the wording of clauses that relate to the same subject matter, i.e. Secrecy. The greatest change in the Instructions has been in the addition of new clauses, most notably in regards to additional information required in schedules regarding Agriculture, and the removal of Industrial and Manufactures Statistics following the establishment of a permanent Bureau of Statistics in 1918. Coincidentally, 1918 is the first year in which a clause titled "Secrecy" appeared in any Statute relating to Census. Contrary to the idea that the people of Canada were told Confidentiality would last forever, there is some indication that respondents to Census were told information given was confidential only if they asked the enumerators about it. The same applied to informing respondents that the answering of questions in Census was compulsory. Instructions pertaining to the Census of 1931 contained the following clause: (italics mine)
Instructions pertaining to the Census of 1931 also contained the following clause: (italics mine)
In reading the clauses above, in particular those parts emphasized by italics, it can be reasonably deduced that the public at large was not informed regarding perpetual confidentiality, and the compulsion in answering questions in Census. No Instructions advised enumerators to inform respondents prior to starting that information submitted was private, confidential, or secret. Rather, they advised enumerators to inform respondents only on request, or when they refused to answer questions. A very good case could be made that all references to confidentiality or secrecy in Instructions to Commissioners and Enumerators were just that, i.e. Instructions to Commissioners and Enumerators, and as such were not widely communicated to the public. This is illustrated quite clearly in the Enumeration Manual for the Census of 1951. Clause 35 states, in part:
Some definite prohibitions are placed on your actions as a Census Enumerator by Act of Parliament. The disregarding of these make you liable for fine or imprisonment. (1) You must not disclose to anyone except Census officials any information you receive in the course of your duties as an Enumerator. (2) You must not permit any unauthorized person, even those in your own family, to see your completed forms or questionnaires."
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