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Article Published September 7, 2002
POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts, email@example.com
Greetings Readers, and Members of Parliament
Jean Chretièn will not run for re-election
The recent announcement of Prime Minister Jean Chretièn that he would not be seeking re-election is welcome news. I say this not for political reasons, or for stating my personal views. More important than the statement that he does not intend to run for re-election was his follow-up statement that he would be concentrating on the business of government until February 2004.
What this means to those of us that seek to regain public access to Historic Census records in Canada is that for the next 18 months we can expect some stability in government and that we are unlikely to be facing a snap election that would interrupt our campaign and require us to start over once again with another new government.
It is to be hoped that long before February 2004 we will have succeeded in our goal and will finally have access to 1906 and 1911 Census records, with the expectation of continued access to subsequent Census' 92 years after collection. Our legal action is proceeding and our Memorandum of Fact and Law will be completed and presented to the Federal Court shortly. We continue to be optimistic about the outcome of this action.
The legal case
Our Application for Judicial Review is still on course, although possibly slight delayed because our lawyer, Lois Sparling, has had a particularly nasty bout of influenza this past while. It is expected that by the time you read this, she will have returned to work and any delay on the progress of our legal case will be minimal.
As previously reported Lois had made application to the Court to require representatives of Statistics Canada and the National Archives to answer certain questions under cross-examination. A few weeks ago she received the judgment of the Federal Court. The Judge decided her questions were irrelevant. He commented in court that facts in general were not relevant to our application so this was not a surprise. Our Memorandum of Fact and Law is due to be served and filed immediately, however, until recently Lois has been too ill to work on it. It is expected that her illness will be sufficient reason to receive an extension of time for submission. Possibly by the time you read this, it will have been completed and submitted.
We are confident that our legal arguments are crystal clear and irrefutable. The lawyers for our opponent seem to believe they have found a new argument - this being that we cannot seek relief from the Federal Court (that's lawyer talk for can't ask the Federal Court to order the release of the 1906 census) because we have not exhausted all our remedies. The 'remedy' they believe we have not used is a complaint to the Information Commissioner about the refusal of Statistics Canada to release the census.
One of our Applicants, Professor Bill Waiser, did formally complain to the Information Commissioner on 19 October 2000. The Information Commissioner is still investigating and has not completed his report. On 23 May 2002, Counsel for the Information Commissioner contacted me and requested me to send them 'original' copies of documents used in my research on the Census issue. I obliged them by sending some 39 pounds of documentation, which they copied and have returned to me. It has now been some twenty-two months since Professor Waiser submitted his complaint to the Information Commissioner. It is hoped that the investigation will conclude soon.
We won't know until we file our Memorandum of Fact and Law and receive our opponent's Memorandum in reply what other legal arguments they have thought up. A procedural or technical argument, if accepted by the Federal Court, could defeat our Application. Assuming we win at the trial level, our opponent can hold things up by appealing to the Federal Court of Appeal. Of course, in the hopefully unlikely event that our Application is defeated, we have the same recourse to the Court of Appeal as do our opponents.
Access to Information requests
We do not believe that making Access to Information Requests for access to Historic Census records, and subsequent complaints to the Information Commissioner when those requests are denied is the way to go. However, to oblige the Justice Canada lawyers, in previous columns we requested that all readers interested in access to Historic Census records submit ATI requests for the 1906 Census of the Western Provinces to the National Archives and Statistics Canada.
We feel that requests to the National Archives have likely served their purpose and no longer need be made. Statistics Canada, however, is a different matter. We request that ATI Requests to Statistics Canada for these records be continued, likely until we have achieved our goal. These requests are another means of demonstrating our desire for access to these records and the numbers of these requests, and complaints to the Information Commissioner, will show up in the Annual Reports that Statistics Canada and the Information Commissioner are required to make to Parliament.
For information regarding the making of ATI Requests and submitting Complaints to the Information Commissioner please see my earlier columns at
An essential part of following up the refusal of Statistics Canada to release the 1906 Census records is to submit a complaint to the Information Commissioner. Be sure to include in your complaint the fact that your Application fee was not returned. We expect that the end result is that you will receive a refund.
Our efforts here have been directed towards obtaining the 1906 Census. We are rapidly approaching the time when we will request similar ATI Requests be made for the National Census of 1911. The date of the 1911 Census was 24 June. We will be seeking access to the 1911 Census after 24 June 2002.
The 'force of law'
I recently spent some time in the library of Simon Fraser University going through Orders in Council and Statutes of Canada from 1871 on. I was looking to check out and verify something that I have had in the back of my mind for some time.
In trying to justify their stand in refusing access to Post 1901 Census records, Statistics Canada quotes Section 26 of the 1906 Instructions to Officers and Enumerators of Census (or Section 23 of the 1911 Instructions). With very minor differences, these Sections are virtually word for word identical to Section 23 of the 1901 Instructions ('secrecy of the information gathered').
One of the major points that Statistics Canada makes is that the difference between the 1906 and later Censuses, and those conducted earlier, is that the 1906 Census and Statistics Act gave Instructions to Enumerators, and the clause therein relating to 'Secrecy', the 'Force of Law'. They claim that while Instructions before 1906 had similar clauses relating to confidentiality of information given, those Instructions did not have the 'Force of Law' and that this is the reason records up to 1901 are accessible while those after are not.
To paraphrase, in my opinion, "They know not of what they speak!"
I did not check every book of Orders in Council but every book that I did check had a cover page that stated that Orders in Council, Proclamations and Regulations, and/or Orders of the Governor General in Council have the 'Force of Law'.
In addition, the Orders in Council for 1891 include a paragraph stating, in part; "[Note. -- The Orders in Council, having the force of law passed since Confederation, are now being revised and consolidated. ............]"
A Proclamation included in the 1891 Orders in Council directing the taking of the 1891 Census included the following statement:
The clause in the 1906 Census and Statistics Act giving the Instructions to Enumerators the 'force of law' was likely not necessary because the Orders in Council referring to the 'instructions and blank forms', having themselves the 'force of law', already gave those Instructions that same force.
Statistics Canada is very quick to state that the 'Secrecy' clause in the Instructions to Enumerators has the 'Force of Law'. However, they willingly ignore other clauses in those same Instructions that state very clearly records of Census "will have value as a record for historical use", that they are "intended to be a permanent record" and will be "stored in the Archives of the Dominion".
If one clause of those Instructions has the 'force of law', then so do all other clauses in those same Instructions. Statistics Canada cannot pick and choose which clauses of the Instructions that they want to have the 'force of law', and those they do not wish to have it.
A few weeks ago I attended a town hall meeting held by my MP, James Moore. During his question period I asked for and received confirmation of his support for access to Historic Census Records.
This is but one means by which we can find out our MP's position on access while Parliament is in summer recess. Another is to make an appointment with them and meet with them at their constituency office. Check the Scoreboard for their position before making an appointment so that you know what to ask them.
Parliament is due to resume sitting 18 September. Mr. Moore said there is a rumour that the Prime Minister may delay resuming Parliament until some time in October when the Queen is due to visit Canada, so that she could give the Speech from the Throne. It is my hope that this rumour is in error. We have had more than enough delays in our efforts to have legislation passed to resolve our concerns.
Petitions and letters
As well as seeking the support of our representatives in Ottawa, we must continue to advise them of our support and desire for access to Historic Census records. There is a continuous need for letters to be sent to our own MPs and Senators, appropriate Ministers, the Chief Statistician of Canada, and Prime Minister Jean Chrétien. For MPs and Senators, please check their position on the Scoreboards at the Post 1901 Census Project website before writing. Concentrate your efforts on those who show the blue question marks, indicating that we have seen no response to our questions of support from them, and on those having a 'fence' indicating that they have given a non-committal response.
Addresses for sending letters are listed on the Post 1901 Census Project website under the link to 'Sample letters'. Letters should be written in your own words, but feel free to get ideas from the letters posted here. In this day of electronics it is easy to whip off an e-mail and this is an option for us. It is apparent, however, that many MPs, Senators and other government officials' pay more attention to a letter received through Canada Post, particularly if it is hand-written. Letters addressed to MPs and Senators, if mailed within Canada, require no postage.
While I have not made much noise about it recently, we still have a need for petitions supporting access. This need will continue until we have achieved our goal. As I write this, we have passed the mid-point of the summer holiday period. This is an ideal time to collect signatures on petitions. We can do so while traveling and visiting friends and relatives, at backyard barbeques, picnics, family gatherings, and any number of other summer activities. There is no deadline on receiving petitions, however the next batch will be sent in shortly before parliament resumes sitting in September (or October).
As you travel on vacation, take a petition along and collect signatures along the way. Tell others what our campaign is all about and encourage them to pass the word and collect signatures as well. The more people that know about the problem of access, the greater our chances of success.
While traveling on vacation remember the most important thing - have a great time, drive and play safely, and return home without accident or injury.
Response of the Privacy Commissioner
In previous columns we requested that letters be sent to Privacy Commissioner George Radwanski to protest his position against access to Historic Census records. The following is the text of his response to these letters that have been sent to many writing to him.
Let me first make it very clear that I am not responsible, nor is the Privacy Act, for the fact that genealogists and historians do not currently have access to historical census records. Access to these records is currently not possible because of Statistics Act prohibitions.
I certainly recognize the importance of genealogical and historical research. Therefore, I support access to these records for genealogical or historical research purposes.
Soon after I was appointed Privacy Commissioner in October 2000, I was asked by the Chief Statistician whether I could support a compromise to which he had agreed with my predecessor in August 2000 with regard to limited access to historical census records. I agreed to support the proposal and I have made that view known publicly.
I am able to support the compromise because it acknowledges the legitimate interests of genealogists and historians, while maintaining an acceptable level of privacy protection. This protection consists of the fact that the complete data would never be made public, that it would remain under the control of Statistics Canada and subject to the stringent requirements of the Statistics Act.
I also decided to support this compromise because it does not vitiate the promise of confidentiality made to Canadians by Parliament. This promise is found in sections 17 and 18 of the Statistics Act. These sections essentially stat that personal information is collected for statistical purposes and will be kept confidential. The Chief Statistician informs Canadians of this promise of confidentiality on the face of all census questionnaires.
Under the compromise solution reached in August 2000, the rules for access to historical records are clear:
As you can see, had this proposal been put in place when I agreed to it, you already would have had access to the 1906 census data, and the 1911 data would have been made available to you next year. Your access would, of course, have been predicated on you meeting the conditions that I describe above. I am also certain that you will agree that these conditions are not a steep price to pay to protect the privacy of all those Canadians who have been compelled over the years to provide their personal information to the state under penalty of law.
I trust that this information is useful in clarifying my positions with regard to the issue. Should you have questions regarding the Privacy Act or the new Personal Information Protection and Electronic Documents Act, you may wish to browse our website at www.privcom.gc.ca . As well, you are welcome to communicate again with my office if you have further questions on this matter.
Privacy Commissioner of Canada"
The 'compromise' is very restrictive, both in what information could be accessed in Census and also in what an individual could do with information. You could access information only for 'direct line' ancestors, thus preventing research on any degree of siblings, aunts, uncles or cousins. You could not publish information obtained, or even share it with other close relatives.
It is not a 'compromise' at all, but an attempt to circumvent the legislated 'compromise' stated in clauses of the National Archives of Canada, Access to Information and Privacy Acts that provide that in return for providing information to Census, that information will not be made available until 92 years following collection. (The 'compromise solution', and my critique thereof, is available on the Post 1901 Census Project website.)
Mr. Radwanski once again refers to a 'promise of confidentiality made to Canadians by Parliament'. Statistics Canada claims that the 'promise' is contained in the 'Secrecy' clause of the Instructions to Officers and Enumerators of Census that in 1906 were given the 'force of law'
Mr. Radwanski, Dr. Fellegi, and anyone else who wishes to promote this 'promise', (with respect) kindly read my lips.
There is not now, nor has there ever been, any 'promise' made by Parliament that confidentiality of Census would last forever. It is not in any legislation, records of Hansard, Canada Gazette, Orders in Council, Proclamations, Instructions to Officers and Enumerators of Census, or on any Schedules of Census. You have been asked through Access to Information, and informally, to produce any and all documented evidence of such a 'promise' and have failed to do so. Until you are able to produce any documented evidence supporting it, kindly stop promoting such a 'promise'. By some people it might be considered fraudulent for a government body to continue promoting a 'promise' that cannot be proven. In other words, (again with respect) either 'put up or shut up' about this 'promise'.
If ever there has been a 'promise' made to Canadians, it was not that confidentiality of Census would remain forever and a day, it was that Census records had 'value as a record for historical use', that they were 'intended to be a permanent record' and that 'they will be stored in the Archives of the Dominion'. This 'promise', unlike that promoted by Dr. Fellegi and Mr. Radwanski, is easily documented. Clauses containing these phrases were included in every set of Instructions for every Census from 1901 to at least 1946.
Until next time, have a safe and happy autumn. Happy Hunting.
Gordon A. Watts firstname.lastname@example.org
Post 1901 Census Project Web Site: http://globalgenealogy.com/Census
en français http://globalgenealogy.com/Census/Index_f.htm