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Article Published December 19, 2001 
POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, gordon_watts@telus.net Greetings Readers, and Members of Parliament Bill S-12 passed by Senate Committee without amendment Sound the Trumpets!! Ring the Bells!! Shout it from the rooftops!! You might consider organizing a parade with a drum and bugle core and various marching bands. On the morning of Thursday 13 December 2001 I received a telephone call from the Office of Senator Lorna Milne. The Senate Standing Committee on Social Affairs, Science and Technology has PASSED Bill S-12 - An Act to Amend the National Archives of Canada Act and Statistics Act (census records), WITHOUT AMENDMENT. The Bill will now be referred back to the Senate in Report Stage and will receive more debate. We are optimistic that following that debate Bill S-12 will pass third reading and be referred to the House of Commons. We still have a ways to go, but having the Senate Committee pass this Bill, especially without amendment, has been a major step towards achieving our goal of regaining the public access to Historic Census records that we are presently denied. Having passed this stage does not mean that we can let up on our efforts to let MPs and Senators how we feel regarding this issue. I encourage you to write the Members of the Senate Committee thanking them for their accepting Bill S-12. Write other Senators to encourage them to support the Bill in debate and to vote to pass the Bill in third reading. Write the MPs as well to seek their support when the Bill is referred to the House of Commons. Continue to collect signatures on our petitions. We need to tell our representative in Parliament that it is not just a handful of genealogists and historians that seek access to these records - it is the people of Canada who do so. While passed without amendment, the Senate Committee did have some observations to make regarding the Bill. I copy below the report of the Committee and their observations below. REPORT OF THE COMMITTEE FRIDAY, December 14, 2001
The Standing Senate Committee on Social Affairs, Science and Technology
has the honour to present itsTWELFTH REPORT Your Committee, to which was referred Bill S-12, An Act to amend the Statistics Act and the National Archives of Canada Act (census records), in obedience to the Order of Reference of Tuesday, March 27, 2001, has examined the said Bill and now reports the same without amendment. Attached as an appendix to this Report are the observations of your Committee on Bill S-12. Respectfully submitted, MARJORY LEBRETON Deputy Chair
APPENDIX Bill S-12, An Act to amend the Statistics Act and the National Archives of Canada Act (census records) Observations of the Standing Senate Committee on Social Affairs, Science and Technology During its hearings on Bill S-12, the Committee heard a range of opinions regarding the Bill's proposed amendments to the Statistics Act and the National Archives of Canada Act. The proposed amendments would mandate the transfer of all personal and agricultural census records from Statistics Canada to the National Archives and would provide that the records be made available to the public after the elapse of 92 years. All census records up to and including the 1901 Census have already been made available for public use but later censuses have been withheld based on the interpretation of confidentiality provisions relating to census data collection. The interpretation of such provisions, which are found in legislation beginning with the 1918 Statistics Act and in regulations or directives prior to that date, was the subject of debate among the witnesses heard by the Committee. Most witnesses favoured some sort of provision for the eventual release of census records. The Committee heard that without their release, historians will lose important information about our nation's heritage and those interested in genealogy will lose important information about their ancestors. There was also evidence that other countries automatically release their census records after a designated period; for example, the United States and Britain release records after 100 years and 72 years respectively. In Canada, the pre-1901 records that have been released have demonstrated practical importance. Reference was made in testimony to the use of such records by the Métis of Sault Ste. Marie to establish historical hunting rights in the Ontario Courts. Those in support of the release of historical census records were, however, divided on the issue of whether Bill S-12 adequately addresses privacy issues. Some were of the opinion that the public is simply not concerned about the release of such data and noted that there have been no complaints about the release of pre-1901 Canadian records or the release of Newfoundland's pre-1949 census records. On the other hand, it was noted that the Bill would potentially provide public access to medical and genetic information that could affect the relatives and descendants of census respondents. It was suggested by one witness that the insurance industry could use such information for making decisions regarding coverage. However, it was also pointed out that several serious but preventable conditions are also genetic in nature, and that an accurate family tree can predict these conditions and allow for their early treatment or even prevention. Bill S-12 would provide a right to object to the release of one's own census information but the process contemplated by the Bill would require that the individual objecting make an application to the National Archivist 91 years after the data was collected. Assuming the individual was still alive, the objection to disclosure would only be considered valid if the Archivist was satisfied that disclosure would be unwarranted. The Committee was also provided a compromise proposal by Statistics Canada. This proposal would provide more limited access than anticipated by Bill S-12. Access to historical census records would be provided only for genealogical research about one's own family and for historical research. Only family members (or their authorized agents) or those conducting historical research (peer reviewed by the Social Sciences and Humanities Research Council) would be given access. While access would be unrestricted, researchers would only be permitted to make public the following basic information: name, age, address, marital status and birthplace. Furthermore, those accessing information would have to sign a legally enforceable undertaking confirming that they agree to be bound by these terms. The Committee also reviewed the report of the Expert Panel on Access to Historical Census Records which was established in 1999 to examine the issue of disclosure. The Expert Panel concluded that no perpetual guarantee of confidentiality was ever intended to attach to census records. However, they urged caution with respect to the release of records created after the 1918 Statistics Act as the public might perceive the release of these census records as a revocation of a guarantee previously made by the government. This was the main concern of Statistics Canada as well. StatsCan is in the process of conducting town hall meetings across the country to better ascertain whether cooperation with future censuses could be affected by the release of 92 year-old records. Notwithstanding the compulsory provisions of the Statistics Act, Statistics Canada relies on public cooperation and is thus concerned with the preservation of the integrity of Canada's statistical system. The integrity of Statistics Canada is based on its ability and effectiveness in keeping what its officials referred to as an "unconditional promise of confidentiality". According to a poll by Environics, Canadians are concerned that if legislation such as Bill S-12 were passed, their cooperation in future censuses could be impacted. In summary, many witnesses and Committee members favoured the disclosure of historical census records after 92 years, but there was disagreement as to whether Bill S-12 provides adequate privacy protection. Some members of the Committee favour the provisions of the compromise proposal over the process delineated by Bill S-12. For these reasons, the Bill was agreed to on division of the Committee. Ottawa Town Hall Meetings The Town Hall meetings for Ottawa were held by Environics Research on Friday 14 December 2001. I am advised that about 35 to 40 people were in attendance at both the afternoon and evening sessions. Of interest is the fact that at each session those attending were provided with copies of the 'compromise solution' that was the subject of one of my articles in my last column. I am advised that each presenter was asked to comment on the 'compromise' and that without exception, each rejected it as being completely unworkable. I have received a number of reports from those who attended the meetings. I copy a few of these here. I am working on new pages for the Post 1901 Census Project website and will be placing most of the reports I receive on those pages. I would appreciated those sending me reports including a PS giving permission for me to either forward their reports, or include them on the web pages. The first report received was from Professor Bruce Elliott from the Department of History, Carleton University.
The first of eleven "town hall" meetings to be held across Canada took place at the Marriott Inn in Ottawa this afternoon. Chris Baker, vice president and project manager for the consulting firm, Environics, indicated that his firm had been retained by Statistics Canada to conduct these meetings to ascertain the opinions of Canadians about releasing the 1906 and 1911 Census In his opening remarks and in the Environics website, Baker was even-handed in his explanation of the issues, accepting without argument the historical value of the information and indicating the difference of opinion as to a promise of confidentiality. The presentations were audio and videotaped, translators were available with electronic equipment, though only one francophone appeared to be present, and three Environics employees in the back row concurrently took notes of everything that was said. The text is to be posted on the Environics website next Monday, and the entire proceedings will be available to the public after 45 days through the National Library and National Archives; access to information requests will not be needed to secure it. All speakers were in favour of access. The afternoon speakers were: 1. Gordon Taylor, for the British Isles Family History Society of Greater Ottawa who urged that the government accept the recommendations of last year's expert panel, which recommended that StatCanada comply with the existing 92 year rule. Taylor suggested that the debate should centre around the means of making the records accessible, such as digitized images on the internet, rather than about whether we would ever see them. 2. Jeff Paul, a lawyer, legislative assistant to Senator Lorna Milne, provided an excellent summary of the legal position and indicated that in his view Statistics Canada is breaking the law by not turning over the records of 1906 and 1911 to the National Archives. Paul complained that the tender documents for the town hall meetings perpetuated StatCan's fiction that there was a promise of perpetual confidentiality. He indicated that the current hearings were a waste of money as the Canadian people have already spoken, in lengthy petitions and through the expert panel. His point about waste of money was echoed by one or two other speakers. 3. Lyn Winters, retired investigator for the federal Information Commissioner, emphasized that if StatCan wants to defend its integrity in the eyes of the public, it would do better to refrain from advancing the kind of unsubstantiated claims upon which it has based its blocking of access to the records. In response to a question, he indicated that he thought increasingly intrusive questions rather than fear of retrospective release lay behind any reluctance of Canadians to answer current questionnaires. 4. Carol Martin of the Historical Society of the Gatineau presented the case for local history. She pointed out the new questions asked in 1911 concerning secondary occupations, insurance, and marital separation, and noted that questions about livestock partially made up for the unfortunate destruction of the agricultural schedules. Mr Baker asked each speaker why they thought StatCan was dragging its feet on release if they thought the evidence on the so-called promise was clear. Speakers indicated their bewilderment and frustration; one or two said they had their own suspicions they would not air in this forum. Baker also asked them to comment upon the 'compromise solution' worked out last year by StatCan, copies of which were available to all attending. Everyone who addressed the question rejected its viability. Carol Martin pointed out that allowing only direct descendants and members of accredited academic bodies access would not serve the needs of local historians. Jeff Paul mentioned the case of a Metis who established his right to aboriginal hunting rights through census records, and noted that the proposal would deny access to the Crown that would be given to family, denying the principle of equal disclosure. Bill Arthurs, one of several speakers briefly at the podium, indicated that genealogists try to trace collateral branches and that the proposal must have been drawn by a bureaucrat who does not understand what family historians do. Gerry Conway said that he could access information on his cousins in the Boston States but not in Canada, and indicated that he wished the census questions had been MORE intimate, to let us know what these people were like. Carol Ingram, an adoptee, indicated that she would be denied access to census records under the compromise solution, as legally she is a child of her adoptive parents. Patricia Roberts Pichette pointed out that Home Children whose names had changed faced the same exclusion, and lamented New Zealand's decision in 1972 to destroy that country's historical census records; she did not know the rationale. The only francophone present, Marie Marthe Dubois, showed how census records lead to other records in research. Ruth Kirk indicated her distress at the Privacy Commissioner's recommendation of destruction and echoed Carol Martin's remark that too much had already been destroyed. It was also pointed out that Sen. Milne's bill passed Senate Committee yesterday and was put on the order paper today for third reading early in the new year. MP Murray Calder's bill had been withdrawn in the Commons. Scheduled to speak this evening are: Alison Hare, Ottawa Branch, Ontario Genealogical Society Chad Gaffield, University of Ottawa, member of the former Expert Panel Patricia McGregor Murray Long Yours sincerely, Bruce S. Elliott Department of History Carleton University Ottawa, Ontario Gordon: Here are my perspectives on the evening session of the Ottawa "town hall" meeting run by Environics today, Friday, 14 December 2001. The meeting was chaired by Chris Baker of Environics, who will be conducting the other meetings across the country, and the focus groups. The proceedings were video and audio-taped, and simultaneous translation was available. A copy of the "third option" from Statistics Canada, that would restrict access to "genealogical research about one's own family (direct descendants of direct ancestors) and for historical research," was available at the back of the room. Baker said a summary of the afternoon and evening sessions will be posted on the Environics web site on Monday. Baker started by giving background on the process being followed. Then there were presentations by four people whose names were posted on a flip chart at the front. Following each presentation Baker asked questions. Finally the floor was opened to additional comments and questions. There were about 35 people in the room, not bad for an evening with snow falling. I understand there were about the same number of people in the afternoon session. The first four presenters were: (1) Allison Hare, Chair of the Ottawa Branch of OGS; (2) Chad Gaffield, University of Ottawa history professor and immediate past(?) President of the Canadian Historical Association; (3) Patricia McGregor, citizen and member of the Kingston Branch of OGS; (4) Murray Long, presenter invited to participate by Environics and "leading expert on private sector privacy law in Canada." All presentations were excellent. The familiar ground was well covered, including emphasis and illustrations of the importance of having access to complete census information, not just for direct ancestors. Each presentation received long and enthusiastic applause. Chad Gaffield was particularly effective. He spoke around three key points: 1. There is a high priority on the preservation of the statistical system in Canada; 2. Maintenance of the system depends on the good will of the citizen; 3. That good will is under threat by the ill-advised position that census data should be forever hidden. He pointed out that major historical changes occur as much from the ordinary citizen as from the political elite, giving demographic transition as an example. The census access is essential to understanding this. Asked about the third option Gaffield characterized it as "profoundly insulting to genealogists and historical researchers." Murray Long, who was there to provide an alternative perspective, concluded that "in the case of the 1906 and 1911 Census Others who spoke were Dave McKenzie from Brockville and Robert Bennett from Ottawa who effectively gave their perspectives as individuals. My attempt to have a straw poll taken of the audience on continuing the practice of releasing the census after 92 years was not allowed by the Chair. He did admit he had heard no arguments or persuasive points against release of the census. Asked about the focus groups, Baker said the participants were selected from the total population to be a demographically balanced group of people who at least recognized what the census is. Asked about tricks in directing the focus group questioning to get the desired answer, he stated that Environics had a reputation gained by not using that kind of approach just to get the answer the client wants. (Would anyone say otherwise?) [Note: Anyone taking the time to read the reports of the focus groups and national surveys conducted by Environics Research for Statistics Canada on behalf of the Expert Panel can see that the information provided and questions asked, particularly in the second set of focus groups and surveys, were biased in favour of obtaining negative responses. In fairness to Environics, it is believed that the information provided and questions asked in those surveys were dictated by Statistics Canada. The report of these surveys is available on the Post 1901 Census Projectwebsite. G. A. Watts]
Note that in setting up the speaker schedule an effort was made to restrict organizations to one presentation. Unless you are the organization's prime representative you stand a better chance of getting a speaking spot if you don't mention affiliation with a group. I hope you find this helpful. John D. Reid Ottawa, Canada
I argued that whatever concern StatsCan may have about losing good will among those who agree with Bruce Phillips (if there is anyone), this concern is tiny in comparison to the increasing and substantial concern that historians have about the obvious and considerable loss of good will that is now evident among the tens of thousands who support the 92-year rule (and whose future support of the census - including the budget given for it - is now being undermined). As you can imagine, this argument is a direct response to the continuing StatsCan perspective that assumes that the potential threat to the census grows out of the Phillips era - in fact, it now seems clear that the real threat is from those who are fed up with the refusal to continue the successful 92-year rule. So, I argued that, as a friend of the census and of its importance for historians now and in the future, StatsCan must be stopped from shooting itself in the proverbial foot. Others can better judge the success of this argument but I am convinced that we can get traction on it since politics has clearly taken over from legal and moral issues. One other thing. At the evening session, we were all shocked to hear the final presenter identify himself as a privacy advocate who had been urged to attend by Environics (who told him that they wanted somebody from the "other side of the fence"). The sweet result was that his presentation supported us i.e. he said that he did not see any privacy problems with the 92-year rule. While it seems clear that the Town Hall meetings are an unjustified waste of our tax money, the fact that Environics is specifically seeking out some of the presenters means that we have to be present and active in them. All the best, Chad. Dr. Ivan Fellegi's presentation to the Senate Committee - a critique The following document is a critique, or rebuttal if you will, of the written Statement of Dr. Ivan P. Fellegi to the Senate Standing Committee on Social Affairs, Science and Technology that reviewed Bill S-12 on 19 September 2001. The critique is done in sections. Comments regarding those sections are enclosed in square brackets, i.e. [ ] following the section of the original document being critiqued.
Canada has an exceptionally strong statistical system which is of significant benefit to the public. Statistics Canada's ability to produce information in the public interest, however, depends fundamentally on the voluntary cooperation of respondents to provide complete and reliable private information. This cooperation has a fundamental fragility since it rests, critically and delicately, on the public's perception of the integrity of the Agency's work and the dedication of the staff to its commitments to both respondents and clients. The Statistics Act gives Statistics Canada some awesome powers: it is legally authorized to collect information on virtually any aspect of Canadian society. Notwithstanding the compulsory provisions of the Statistic Act, the statistical system relies fundamentally on public cooperation. By contrast, just about all other large scale data collectors, such as physicians, lawyers, banks, insurance companies, commercial transactors, all provide incentives in the form of services that individuals wish to have; and the tax authorities of course have strong and effective enforcement mechanism. Unique among large-scale data collectors, a statistical agency can provide neither direct personal incentives to secure cooperation, nor effective sanctions if that cooperation is not forthcoming. So how do we manage to function without either direct incentives of effective enforcement powers? The answer is that we rely on our integrity. That integrity, in turn, relies primarily on our effectiveness to keep our unconditional promise of confidentiality; and on the quality, relevance and objectivity of the statistical information that we provide to the public.
The single most critical determinant of success is that of unqualified assurance by every Agency representative that private identifiable data will be kept confidential, available only to persons authorized by lawful mandate, under criminal sanctions. In an agency whose value to the public is determined by its credibility, the firm adherence by all employees to strong ethical values has a direct influence on its viability. And every employee must be deeply imbued by this confidence since they communicate their beliefs not only orally but also through their demeanour. The effectiveness of that assurance depends on the absence of exceptions in the law. Indeed, the special character of Statistics Canada's unconditional confidentiality protection is recognized in a variety of federal statutes under which its data, alone among all other agencies or organizations, are not available to anyone else, that is not to the courts, not to the police, not to the tax authorities, and not to the Canadian Security Intelligence Service. Statistics Canada's operations are based on the premise that the absolute assurance of confidentiality constitutes a public interest balance between the legitimate public need for information on the state of the nation and the fundamental social and economic right to privacy. Legislation that retroactively denies the lawfully mandated pledge given to respondents in 1906 and subsequent censuses needs to negate the criminal sanctions that applies to staff who contribute to such a breach. Such unprecedented action would surely receive attention from many constituencies. Claims that this action was singular and somehow uniquely justified would have to cope with the suspicion that if the time limit on the preservation of confidentiality can be broken once, it can be broken again. Indeed, there would be no effective reply to such an accusation. How could Statistics Canada assert that the public should trust it with future confidentiality when previously legally binding confidentiality protection was in fact changed - and retroactively. A retroactive amendment would introduce a major discontinuity, even though Parliament could always have changed the law: namely that it never before did so in respect of statistical confidentiality - and very seldom in respect of anything else. There are legal issues coloring this debate but I believe that they are not at the heart of the issue. Parliament undoubtedly has the authority to resolve those. At any rate, it is not my function to try to address them here and now.
In reading the Environics Research focus group 'Summary of Findings' (February 2000) and the Final Report summarizing the focus groups and surveys (July 31, 2000) it is obvious that the information provided participants, and the questions asked of them were biased so as to elicit negative responses. Participants in focus groups were told Canadians had been participating in census for 3 centuries and then were told that some people think data collected for individuals from censuses should be made available after a time period of about 100 years. They were not told that for 235 of those 300 years this information was already available to the public. Participants were told that the government had made a promise of confidentiality without end and questions that followed, particularly in the second national survey, unduly emphasized that promise. They were then asked if that promise should be broken. We suggest that on any given subject, if someone is told a promise was made, whether or not in fact one had been given, and then asked if that promise should be broken, the response will be negative.]
Other legislations, both Federally and Provincially, recognize varying periods of time beyond which personal information is no longer considered confidential. These limits vary according to the type of information provided and whether the legislation is Federal or Provincial. In British Columbia for example, information from Vital Statistics is accessible by anyone either 20 years after death, or 110 years after the birth of an individual. Limitations on information from Vital Statistics vary from Province to Province.]
Canadians are sufficiently worried that, if this Bill was passed, their cooperation with future censuses and with Statistics Canada in general could be affected. During every census we work extremely hard to count every single person in Canada since we are only too well aware of the fact that currently over 40 billions of dollars are distributed on the basis of census information through the Equalization, Canada Health and Social Transfer and Territorial Formula Financing programs. In fact, the impact of census information is even larger when one takes into account the thousands of programmatic and private investment decisions that are made using the census. So, indeed, the census can be critically weakened even if considerable less than ten per cent of the population withdrew their trust - let alone the much large number who, according to the Environics survey, said they would be less likely to answer the next Census. Should that happen, the quality of future censuses, and indeed the entire statistical system on which so many important public and private decisions are based, would suffer an irreparable blow. If Canadians are truly worried regarding the passage of Bill S-12, or any other Bill that would regain the public access to Historic Census records, where are those who represent this fear? Why do they not have someone appearing on their behalf to express this fear? The fact of the matter is that there is no such fear, and no such opposition. The only opposition to access comes from Statistics Canada, and through that agency, the Privacy Commissioner.]
The general public has had the same opportunity to voice their opinions that genealogists and historians have had. They had the same opportunity to make submissions to the Expert Panel, and to make representations opposing our efforts to their elected representatives and Senators. They have had the same opportunity to sign petitions opposing access that we who seek access have had to sign petitions that are supportive of access. Does Dr. Fellegi expect those of us who support access to collect petitions for those who do not? Those who are interested have voiced their opinions. Those that failed to do so, comprising the vast majority of Canadians, either have no interest in the issue, or are not concerned about it. We are gravely concerned that the proposed town hall meetings and focus groups, like those conducted for the Expert Panel, will be biased towards obtaining negative responses. We will be watching these proceedings very closely, and look forward to seeing the final report containing the conclusions reached.]
In the early 1980s, the Access to Information and Privacy Acts were born of the same Bill. Specific provision was made in Regulations attached to the Privacy Act for access to personal information from Census, 92 years following collection. This then, provides the balance, or trade off if you will, for respondents giving personal information to Census. Legislators of the day made these provisions with the full knowledge of the legislation from 1905 on. We think it unlikely that those legislators would knowingly and deliberately include such provisions if they intended them to be negated by unstated permanent confidentiality in the Statistics Act. Public access to Historic Census Records is affected by, and can only be understood, by reading together four legislative Acts of Canada. Those are the Statistics Act, the National Archives of Canada Act, the Access to Information Act, and the Privacy Act. If we are to believe statements produced by Statistics Canada, we would also need to read the Interpretation Act, and to have handy a thesaurus and dictionary. To fully understand the whole picture we must also read the various Instructions to Officers and Enumerators of Census, which, as Statistics Canada is so fond of pointing out, from 1906 on have the force of law. Over the years the legal opinions sought regarding the issue of public access to Census records have failed to consider all of the above-mentioned Acts, Regulations, and Instructions. For the most part these legal opinions have singled out only the Secrecy provisions of the various Statistics Acts and Instructions to Enumerators. In so doing, they failed to consider other Acts and clauses pertinent to the issue, and so reached the faulty conclusion that nominal Census records could not be made available to the public for purposes of research. The one exception to this is the legal opinion of Ms. Ann Chaplin, dated 1 August 2000. Ms. Chaplin considered most of the above mentioned Acts, Regulations and Instructions, and the Report of the Expert Panel, therefore reaching a different conclusion, to wit: "The rational approach to the various pieces of legislation at play here seems to be one which would prohibit census workers from giving anyone access to individual returns but which would allow census information to be transferred to the Archives and, after 92 years, released in accordance with the Privacy Regulations." Ms. Chaplin concluded her legal opinion by suggesting a clause to be added to the National Archives of Canada Act that she felt would achieve this objective.] 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. Your comments and questions relating to release of Post 1901 Census records are welcome. Subscribe to the list by sending an e-mail to Canada-Census-Campaign-L-request@rootsweb.com 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 For more information regarding the Census issue, visit the Post 1901 Census Project website located at Please note that file names on the server on which these pages reside are case sensitive. The 'C' in 'Census' must be upper case. At this website you will find:
Gordon A. Watts gordon_watts@telus.net Shopping Cart & Order Desk Global Genealogy & History Shoppe 1-800-361-5168 ( 9-5 Tuesday to Saturday )
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