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Article Published April 14, 2000, Vol. IV No. 08



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


Greetings Readers, and Members of Parliament

REASON FOR BEING

The sole purpose for the existence of this column has been to inform you, the reader, on matters relating to issues regarding Post 1901 Census and the refusal of Statistics Canada to relinquish control of such Census records to the National Archivist so that they might be released to the public 92 years after collection in accordance with Regulations attached to the Privacy Act of Canada.

I have tried to include in this column not just my thoughts and opinions regarding this issue, but those of others who have been kind enough to send me information which I might not otherwise have had the opportunity to find. I am grateful for the assistance provided by many of you, and have included in my columns, for the information of others, several letters or articles that have been sent to me. Information provided me by others played a large part in the development of my submission to the Expert Panel on Access to Historical Census Records. Letters of support and encouragement from many of you to myself and other members of our ad-hoc Canada Census Campaign Committee have made us feel that our efforts in this matter have been worthwhile and appreciated. For that we most whole-heartedly return to you our thanks.



Submissions to the Expert Panel.

In my last column I presented to you the main part of my own submission to the Expert Panel on Access to Historic Census Records. In a previous column I included a part of the submission of the Canadian Historical Association. In this column I include the submission of Lyndall H. Winters, one of the members of our ad-hoc committee.

While Lyn, for the most part works behind the scenes and may not be known to many of you, it was because of an article posted by him that I first became aware, almost three years ago, of the problems relating to release of Census. I started at that time, with occasional postings to the mail lists to which I subscribed, urging listers to write to MPs expressing concern about the release of Post 1901 census records. At that time I had no thought of becoming a leader of the current campaign, and even less thought of writing a regular column about the issue. Time has a way of changing things and the past few years have been interesting at least. The existence of this column, and the campaign for release of Post 1901 Census records has been, in great part, thanks to Lyn. Lyn includes some of his history in his submission.

I also include in this column, a submission by Calgary Lawyer Lois Sparling, in the form of a Memorandum of Law that was attached to the main submission to the Expert Panel of the Alberta Family Histories Society.



Submissions requested

I would like to ask that those who have made submissions to the Expert Panel, on behalf of the various genealogical and historical organizations, to send me copies of those submissions. The purpose of making this request is to keep our readers informed by publishing those submissions in future issues of this column. Please send them attached to an e-mail to

I regret that it would not be possible to include in this column every submission to the Expert Panel made by an individual, and that is why I make this request for those who made a submission on behalf of the various organizations. I would be pleased, however, to receive submissions by individuals and, space permitting, would consider publishing some that I might consider to be outstanding. Sending a submission to me will be considered permission to include that submission in future issues of this column.



Submission by Lyn Winters.

SUBMISSION TO EXPERT PANEL

ON

ACCESS TO HISTORICAL CENSUS RECORDS


by

Lyndall H. Winters

PART I - INTRODUCTION

Perhaps I should begin this submission by explaining who I am, providing a little of my background and why I am vitally interested in this matter of census records.

I am a retired Officer of the Royal Canadian Mounted Police (Superintendent), having served in that organization for 35 plus years.  Following retirement, I worked as an investigator with the Office of the Information Commissioner of Canada, investigating complaints from citizens who believed they were denied access to records they had requested under the Access to Information Act.  I worked in that capacity for eight years, finally retiring in 1994.  During those eight years, my work took me into many federal government departments in several provinces.  Not only did I have a firm grounding in the Access to Information Act, the work required me to understand the provisions of the Privacy Act.

My interest in genealogy stems from work handed down to me by my mother who passed away in 1990 and I vowed to continue with her work and I have been working steadily in the field of genealogy for the past ten years.  My intention is to identify my “family” and write a history of that family to leave for my children and grandchildren.  I also gain a sense of fulfilment in helping others find their “roots”.  Much of the success I have achieved to date is attributable to the access I have been privileged to have been given to census records in Canada and the U.S.A.

While still employed in the Office of the Information Commissioner of Canada, I had occasion to visit Statistics Canada and meet with their Access to Information Co-ordinator and her staff.  I also had occasion to speak with an employee about the success I had been experiencing in finding “family” in census of Canada records that had been released to the National Archives.  I then learned that this was about to come to an abrupt end because of an interpretation placed on the security provisions of the Statistics Act (Section 17).  I learned that the 1901 Census of Canada would be the last one that researchers would see.  It was explained to me that Section 17 was being interpreted in such a way that the Chief Statistician felt his hands were tied — because of the confidentiality provisions, the 1911 and subsequent census records would not be transferred to National Archives.

Because I was still employed with the Office of the Information Commissioner, I felt that I was not in a position to seek records from Statistics Canada and the National Archives which would explain the reason for this unfortunate decision by Statistics Canada. 

Following my retirement from the Office of the Information Commissioner, I felt no longer constrained from delving into this issue.  I submitted two formal requests under the Access to Information Act, one to Statistics Canada and the other to National Archives for records which would shed some light on what occurred .   The records received from Statistics Canada were not at all helpful to me in understanding what transpired between National Archives and Statistics Canada however the records received from National Archives revealed a “Mexican Stand-off” between the Chief Statistician and the National Archivist over the issue of transfer of post 1901 census records to the National Archives.

Faced with the intransigency of Statistics Canada with respect to their decision to withhold transfer of post 1901 census records to National Archives, I turned to the Internet as a means of informing the genealogical community across Canada about the issues involved and suggested that if they were concerned over the loss of this valuable genealogical research tool, they should make their voices heard by Statistics Canada, by the Minister to whom that agency reports and to the Members of Parliament in their respective communities.  This was followed up by several articles published in genealogical news magazines and news bulletins as well as in the national and local media.

As a result of concerns raised by citizens from coast to coast, the Minister announced the creation of the Expert Panel of which you are all appointed members.

PART II - THE LEGAL ISSUES

Having worked in the Office of the Information Commissioner of Canada, I had become thoroughly familiar with the Access to Information Act and the Privacy Act.   After reviewing letters from Statistics Canada explaining their rationale for their decision to withhold deposit of post 1901 census records, it became evident that they were relying solely upon legal advice from Department of Justice legal counsel.  When I sought these legal opinions from Statistics Canada, I was informed that they were exempted from disclosure pursuant to Section 23 of the Access to Information Act as “solicitor-client privilege”.   I then asked the department, in the interests of openness,  to reconsider the decision to invoke Section 23.   They did so, but effectively tied my hands by claiming crown copyright. 

On reviewing the legal decisions obtained from Justice lawyers, it became evident they were focused on Section 17 of the Statistics Act and were interpreting it as precluding Statistics Canada from disclosing all census records from post 1901 onward. The legal opinions failed to take into cognizance the provisions of Section 2 of the Access to Information Act which identifies the right of access to government records and specifies in subsection (2)  that the Act is intended “... to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.”

It was clearly evident to me that the interpretation placed on Section 17 of the Statistics Act by the Department of Justice lawyers and by Statistics Canada, was disregarding Section 2 of the Access to Information Act in that the refusal to make public post 1901 census records was de facto replacing existing procedures for access to government information (census records) which had been made available to the public up to and including the 1901 decennial census.   Furthermore their decision was in direct contradiction to subsection 2 (2) by limiting access to the type of government information (census records) that is ((was)) normally available to the general public.

After carefully reviewing Section 17 of the Statistics Act and the legislation and instructions which preceded it, it became evident to me that the intent and purpose of this Section was to protect the sanctity of the census records from the time the census taker knocked on the door until the expiration of the 92-year waiting period as defined in subsection 6 (d) of the Privacy Regulations.   Why else would our legislators have drafted and enacted into law subsection 8 (3) of the Privacy Act and subsection 6 (d) of the Privacy Regulations?  These Sections of the Privacy Act and Regulations were drafted and incorporated into legislation in 1983 with the full knowledge that Section 17 of the Statistics Act was only intended to protect census records from disclosure while they were still under the control of Statistics Canada and later when the microfilm records were on deposit with the National Archivist pending release to the general public after the expiration of the 92-year waiting period.

Having regard to the above, my intent was and is to challenge the decision of Statistics Canada in the Federal Court,  after having first officially requested release of the 1911 census by way of an official request made to them under the Access to Information Act.  Any move in that direction has been placed on hold pending the outcome of the study which your Panel has been asked to conduct.  My contention is, therefore, that enabling legislation to permit Statistics Canada to retroactively amend Section 17 of the Statistics Act and thereby release post 1901 census records is redundant and unnecessary, in view of the fact that the authority already exists.  Furthermore, I contend that any move to restrict the Canadian public from access to post 1901 census records would be in direct violation of Section 2 of the Access to Information Act.

A copy of the relevant Sections of the Statistics Act, the Access to Information Act,  the Privacy Act and Regulations and the National Archives Act will be found attached as Appendix I to this submission.

PART III - THE PRIVACY COMMISSIONER’s STAND

Genealogists and historians from the length and breadth of Canada have been shocked and saddened to hear and read of the vociferous campaign led by the Privacy Commissioner of Canada for the restriction and outright destruction of historic census records held  by Statistics Canada.  I might add these same sentiments have been voiced by citizens of the United States of America, many of whom rely on these records to find their parents and grandparents who emigrated south of the border in search of a livelihood.  Many of these family historians are actively engaged in the pursuit of genealogy and have been anxiously awaiting release of the 1911 Census to determine the origin of their ancestors.  I can personally attest to the need for access to such records, as I have many members of my own family who left Nova Scotia seeking employment in the factories of the Boston States.  My task is made much easier in the U.S., as their census records are released a mere 72 years after the taking of each census.  They are preparing now for the release in 2003 of their 1930 decennial census. 

Those engaged in the task of genealogy are imbued with a deep feeling of sense of family. To the genealogist or family historian, this transcends the immediate core family and extends outward to include aunts and uncles and their descendants.  This is why it is necessary to rely upon the free and unfettered access to historical census records.  There is no other way of re-constructing one’s extended family.

Not only are genealogists and historians left wondering why the Privacy Commissioner is advocating the complete closure and/or destruction of census records.   The public at large wonders why the Office of the Privacy Commissioner of Canada would adopt such a position, given the fact that census data can only be released 92 years after the taking of a census.  They point out that this is regulated by the Privacy Regulations, one of the written rules which guide the Privacy Commissioner in his work.

The national media has also commented on the actions of the Privacy Commissioner.   The Globe and Mail, in their editorial of November 5, 1999 described his stand in opposing the release of historical census data as “....(making)... the Privacy Commissioner look silly.”   

A brief word about the “pact” or “promise of confidentiality” made to the Canadian people at the time of the taking of the post 1901 census.  An exhaustive search of legislation, parliamentary debates and newspapers has failed to establish that such a “pact” or “promise of confidentiality” ever occurred.  This appears to be nothing more than a “spin” organized and perpetrated by Statistics Canada and accepted by the media and others as fact.  What HAS appeared in the Statistics Act or Regulations made pursuant thereto, has been a section relating to the duties and obligations of commissioners and enumerators of census.  The following is an excerpt from the Canada Gazette of Monday, May 21, 1906, which proclaimed “Instructions to Commissioners and Enumerators”:

Every officer or other person employed in any capacity on census work is required to keep inviolate the secrecy of the information gathered by the enumerators and entered in the schedules or forms. An enumerator is not permitted to show his schedules to any other person, nor to make or keep a copy of them, nor to answer any questions respecting their content, directly or indirectly; and the same obligation of secrecy is imposed to commissioners and other officers or employees of the outside service, as well as upon every officer, clerk or other employee of the Census and Statistics Offices at Ottawa. The facts and statistics of the census may not be used except for statistical compilation, 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.”

As Section 26 indicates, it is directed toward persons engaged in the process of preparing and processing the census and is NOT, as suggested by Statistics Canada and others, a promise of confidentiality to the Canadian people.

These same instructions to enumerators also emphasized that clear and legible records were to be kept because the census is a permanent record and would be stored and preserved in the Archives for future reference.   This does not sound like an avowal of secrecy.

In his submission to the Panel, Mr. Phillips indicates he has “...tried to go beyond the positions of the historians and genealogists, to determine exactly what their interests are in the release of the census returns.”   He then stated “I have been unable to get very far, largely because they have not made any attempt to justify their position.  I know of few other debates, about personal information or any other subject, that have been quite so riddled with unsubstantiated assertions about mysterious “rights” — the “right” of genealogists to satisfy their curiosity about their origins, the “right” of historians to conduct research into other people’s lives.”

These are incredible statements which would lead one to believe that Mr. Phillips and his research staff have simply not tried to determine or understand the issues involved.  It would appear he has no sense of “family” as so many hundreds of thousands of Canadians do.  Through the use of census records and the good graces of the Family History Centres run by the Church of Jesus Christ of Latter Day Saints (Mormons), I have been able to trace my family back to Hexham, South Shields and London, England.  I have learned of master mariners, ordinary seamen, ship-wrights, carpenters and plain dirt farmers whose hard work helped found this country.

Mr. Phillips’ observations were passed on at random to other genealogists through the medium of the internet with the suggestion that they provide their own reasons for dedicating their time to researching family ties.  The responses from across Canada and two from the U.S.A. speak for themselves.  They are included with this submission for the information of the panel as Appendix II to this submission.   If time is a concern, I would strongly suggest Panel members read the e-mail from Carol Hathaway, a lady who is stricken with Parkinson’s disease and for whom genealogy is the most cherished thing in her life.   A copy of these e-mail messages is being provided to Mr. Phillips in the hope that it will demonstrate to him why we do what we do.

Finally, I would like to touch upon the definition of Personal Information as it appears in the Privacy Act and how that has a bearing on the question of disclosure of census records after the proscribed 92-year waiting period.  The Privacy Commissioner has been quoted as saying during a CBC radio program:   “....a great many people go to some pains in their wills for example, to ensure that their papers, their records, and their personal life story is kept private.  A great deal of information that would be contained in records of that kind can also be found in census.  So, to argue that merely dying should deprive somebody of their right to some control over their life story, I think goes too far.”    And again in that same interview with Michael Enright and Professor Bill Waiser: “Are people expected to give up all their rights to the control of their information after their death, yes or no?”.    (CBC Radio - This Morning - November 8, 1999)

What Mr. Phillips glosses over, or perhaps had forgotten,  is that “personal information” as defined in the Privacy Act does not include information about an individual who has been dead for more than twenty years.  

Let us make no mistake, a census record which is name specific, is personal information, but the government saw fit to make provision in the Privacy Regulations to permit such records to be deposited with the National Archivist for archival or historical purposes and released to the public once the period of 92 years has elapsed following the taking of the census.  The government, in its wisdom saw fit to set this 92-year period so that it would be relatively consistent with the “20 years after death” rule and the “110 year after birth” rule which generally held sway in the Archival community.

In concluding this submission, I would beseech the Panel to cut through the rhetoric of the Privacy Commissioner who seems to be intent on seeking a total ban on the release of census records.  To the genealogist, the professional historian and those ordinary folk who want to publish their family histories, the elimination of access to historical records would be tantamount to book burning -- a suppression of history.

Respectfully submitted,

Lyndall H. Winters       

Kanata, Ontario,

March 29, 2000



Letter to Privacy Commissioner Bruce Phillips

The following is a letter that Lyn Winters sent to Privacy Commissioner Bruce Phillips.  This was in response to a request that Lyn made on the NSRoots mail list asking listers to advise him as to their reasons for seeking information from Census records.  Lyn wanted to respond to Mr. Phillips charge in his submission to the Expert Panel that genealogists had made no effort to justify their desire to have access to Census records.  While not included here, the emails sent to Lyn were copied to Mr. Phillips with the letter.

April 3, 2000

Mr. Bruce Phillips,

The Privacy Commissioner of Canada,

Ottawa, Ontario

K1A 0R2

Dear Mr. Phillips:

My letter is intended as an expression of concern over the zealous campaign waged by your office to place further restrictions on the public access to historical census records.  As a novice genealogist and family historian, I was saddened but frankly not surprised to read a letter that your office wrote to the Chief Statistician recommending that the 1991 census records be destroyed immediately once the data had been processed, evaluated and validated. 

In a letter I obtained under the Access to Information Act, written by Mr. Julien Delisle, Executive Director of your office in December 1994, to the Assistant National Archivist, he speaks of: “...the guarantee of confidentiality that Statistics Canada once gave to Canadians when it collected their personal information”.   I submit to you sir, that this so-called guarantee of confidentiality was never made to the Canadian public and does not exist.  Should your office or Statistics Canada be able to produce a record conveying such a promise, then we in the genealogical community would be pleased to see it.  The fact is that the so-called guarantee of confidentiality or “pact” as you have recently described it was nothing more than instructions written by Statistics Canada to the commissioners and enumerators to keep inviolate the records until such time as they were made accessible to the public 92 years after the taking of the census.  Section 17 of the Statistics Act is nothing more nor less than an extension of that dictum.

Mr. Delisle’s letter goes on to state that immediate destruction of the data”...will go a long way to eliminate the risks of confidentiality breaches and restore the privacy of Canadians”.  He goes on to say that “...they would not be prisoners of their census records..”.   Prisoners of their census records -- indeed!  What utter balderdash, Mr. Phillips.

You and your office are fully aware that the Regulations made pursuant to the Privacy Act ensures that census records are held for a period of 92 years following the taking of the census.  This is viewed by Canadians as adequately protecting their privacy.  A test of this is in the number of complaints from Canadians about release of census data 92 years after the information was given.  We in the genealogical community would be pleased to learn of the number of such complaints received by your office on this issue. We know that no such complaints were received by Statistics Canada or National Archives.

In your submission to the Expert Panel on Access to Historical Census Records, you mention that the questions asked in censuses have become increasingly intrusive over the years and  you point to the proposals for the 2001 census where the statisticians plan to include extremely personal questions in their ‘long forms’.  Such extremely personal matters are of little or no interest to genealogists.  We suggest that the full weight of your office should be brought to bear to reigning in the statisticians’ insatiable appetite for more personal information which they can then peddle to the market place..

Again, turning to your submission to the Panel of Experts, you “...tried to go beyond the positions of the historians and genealogists, to determine exactly what their interests are in the release of the census returns”.  You then went on to indicate that you were unable to get very far in understanding the positions of historians and genealogists “...largely because they have not made any attempt to justify their position.”

I suggest to you, Mr. Phillips, that you and your office have made no attempt to understand the position of genealogists.  With a view to helping you understand that position, I asked for assistance from the genealogical community in describing why they feel they need access to historical census records.  I received a number of replies and I am enclosing a copy of their e-mail messages describing their feelings about this issue.  I am sure if your office wishes to have any one of these citizens expand on their views, they may be reached at the various e-mail addresses shown.  Lest you or your staff feel that this is an invasion of their privacy, I have received their permission to forward these letters to your office.  Should your office wish to hear from other Canadians about why they consider access to historical census records is essential to their work as genealogists and family historians, please let me know and I will arrange to have them write direct to you.

I shall end my communication to you with the comment that we in the genealogical community would be among the first to applaud your recommendation about destruction of census records if we had any inkling that a significant percentage of Canadians objected to the release of census data after a waiting period of 92 years.  We know that the vast majority of Canadians support our position and we welcome the opportunity for a full debate on such an issue by our Members of Parliament and the Senate of Canada.

                                                                        Yours sincerely,

                                                                        L. H. (Lyn) Winters

cc. Expert Panel on Historical Census Records



Submission by Lois Sparling

The following was a submission to the Expert Panel by Lois Sparling, a lawyer in Calgary who has been active in our campaign.  Lois’ submission was not an individual submission but was an appendix attached to the main submission of the Alberta Family Histories Society.  As a Memorandum of Law, it is not written in the manner in which most of us would write.  It is however, very readable, and as there are legal professionals on the Expert Panel will be understood by the Panel members.  I hope to be able to include the main submission of the AFHS, written by Robert Westbury, in my next column.

Memorandum of Law

Release of Historic Census


The issue is whether the individual census returns for all the census after the 1901 national census can ever be made available to scholars and the public.  The 1871, 1881, 1891 and 1901 census returns have been transferred to the National Archives and made available to the public after 92 years in accordance with the Privacy Act, R.S.C. P-21, as amended.  Although the individual returns from subsequent census have been microfilmed and the microfilm lodged with the National Archives, the Chief Statistician and the Privacy Commissioner have taken the position that these returns must be kept secret forever.  Their position is based on changes to the regulations setting out the instructions to the enumerators for the 1906, 1911 and 1916 census and section 15 of the Statistics Act, 1918.

Historians and genealogists study census returns for information about family groups, neighbourhoods and communities.  It is the only primary source which places the individual in his or her family and community context.  Historians and genealogists want the historic census returns to continue to be released to the public after a suitable period of secrecy, i.e., 92 years.

The Chief Statistician believes that the public will be less co-operative or less truthful in  responding to census questions if their answers are not kept secret forever.  This would jeopardize the high quality of Canadian census data.  The Privacy Commissioner believes that making individual census returns available to the public is an unacceptable invasion of privacy even 92 or more years later.  No one has ever actually complained that the release of the historic census has or would infringe their privacy.  There is no empirical evidence that making census returns public after 92 years would effect the way in which Canadians (or even other national groups) participate in the census.

Other federal government documents containing sensitive or personal information are routinely made available to the public through the National Archives.  A striking example is the files of members of the First World War Expeditionary Force.  As in the case of the census, draftees during the First World War were compelled to provide information about themselves.  Their entire military files including documentation on their health and disciplinary matters, are now freely available to the general public.  The far less intimate information about the same persons contained in the 1911, 1916 and 1921 census returns, it is argued, can never be made available to anyone but the individual himself.

The Privacy Act, supra, provides in section 8 for the transfer of federal government documents to the National Archives where the personal information may be disclosed in accordance with the regulations to any person for research purposes.  The regulations prescribe how old the documents or personal information must be before they can be released to the public.  This is subject to any other Act of Parliament.  It is submitted that the regulations setting out the instructions to the enumerators for the 1906, 1911 and 1916 census do not qualify as “any other Act of Parliament”.

Some statutes provide that its regulations shall be read as forming part of the statute.  The

Census and Statistics Act, 1905, which was in force for the 1906, 1911 and 1916 census provides that its regulations “shall have the force of law”.  According to the Supreme Court of Canada in R. v. Singer, [1941] S.C.R. 111, 75 C.C.C.1, [1941] 1 D.L.R. 753, this is insufficient to make such regulations fall within the definition of “Act”.  There is, therefore, no legal justification for having withheld the census returns from the 1906 census of the Western Provinces from release to the public after the prescribed 92 years.  For the same reason, there is no legal justification not to release the individual census returns from the 1911 national census in 2003.

In addition, articles 23 and 36 of the Orders in Council passed for the 1901, 1906, 1911 and 1916 census are identical.  Article 23 provides for the secrecy of census information but also makes clear that the anticipated concern from the public was that the information not be used for taxation purposes.  That article states in part:

“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 other object”.

It is submitted that this is a reference to other current governmental objectives such as taxation.  The secrecy intended and required by this article was contemporary secrecy, not secrecy forever.  This is confirmed by article 36 which provides:

”The census is intended to be a permanent record and its schedules will be stored in the Archives of the Dominion”.

It is submitted that secrecy of the individual census returns forever is inconsistent with the census being reserved as a permanent record.  It was intended at the time that the census returns would be available for study as historical documents once secrecy had been maintained for a reasonable period of time.  There is no other reason to keep the individual returns once the statistics has been compiled.  There is no other rational interpretation of article 36.

In my opinion, an application in the Federal Court for a writ of mandamus compelling the National Archivist to release the individual returns from the 1906 census of the western provinces would have a good chance of success.  Such a ruling should also cover the release of the individual returns from the 1911 and 1916 census in due course, as well.

The Statistics Act, 1918 replaced the Census and Statistics Act, 1905.  Section 15 of the Statistics Act is entitled “Secrecy” and provides that no individual census return may be published or shown to any one not working for the census.  Does this prohibition last forever or should it be read as guaranteeing secrecy for a reasonable period of time? 

The Debates in the House of Commons and the Senate reveal no concern at all about the use of the census returns in the distant future for historical research.  Secrecy, when discussed at all, was  considered solely in the context of contemporary governmental activities, especially taxation.   In other words, it was always intended that the census returns would be a studied as historical documents.  The primary purpose was for statistical purposes but the value of the individual returns as historical records was also appreciated.  It is submitted that the secondary or ancillary purpose of the census was to create a permanent record for historical research.

The individual census returns were not destroyed once statistics had been compiled from then as has been done in Australia.  Indeed, they were preserved on microfilm.  This positive act of  microfilming the census returns confirms that it was generally understood that they were to be looked at by somebody sometime.

It is submitted that that the individual returns have continued to be preserved because until relatively recently, it was generally understood that the secrecy provision in section 15 (later section 16) meant that they would not be made available for research for a reasonable period of time.

It is trite law that statutes are to be interpreted or construed so as to avoid absurdity or an unreasonable result.  It is submitted that, having regard to the concerns the secrecy provision was meant to address and the practise of retaining and preserving the individual census returns, the requirement that no one besides the census takers and statisticians be allowed to see these records should be read as maintaining secrecy for a reasonable period of time.  It is submitted that reading section 15 in its widest literal sense in the absence of a requirement that the returns be destroyed, leads to an absurdity. The real issue is how long secrecy should be preserved - 92 years, 100 years, 200 years, but surely not forever. 

It is submitted that a Court would “read in” a reasonable time limit, permitting census returns to be examined when they have become historical documents and the individuals' reasonable expectation of privacy have been met.

Lois Sparling

Barrister & Solicitor

31 January 2000



Canada Census Campaign mail list

The Canada-Census-Campaign-L mail list was set up to provide a forum for those interested in obtaining release of Historic Census Records in Canada.  It is not for look-ups or individual queries.  Your comments and questions relating to release of Post 1901 Census records are welcome.  Subscribe to the list by sending an e-mail to

With only the word subscribe in the subject line and the body of the message.  Do not include any other text or signature files in the body of the message.  To subscribe in Digest mode, change the ‘L’ in the address to a ‘D’.

Post 1901 Census Project website

If you have not already done so, please send me any responses you have received from your Member of Parliament regarding the Census problem.  You are invited to view the website at

Until next time.  Happy Hunting.

Gordon A. WATTS   gordon_watts@telus.net


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