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Article Published May 1, 2003

Gordon A. Watts POST-1901 CENSUS NEWS (Canada)
By: Gordon A. Watts,

Greetings Readers, and Members of Parliament

Senate Standing Committee Meet on Bill S-13

On Wednesday 9 April 2003 the Senate Standing Committee on Social Affairs, Science and Technology met for the second time to deliberate Bill S-13 - An Act to Amend the Statistics Act. The reason for the second hearing was to allow Privacy Commissioner George Radwanski the opportunity to voice his opinions regarding the Bill. Mr. Radwanski could not be bothered to attend, or to appoint someone to attend in his stead at the time of the first hearing held on 27 February 2003. There were however, certain Senate Committee members - those that apparently oppose the unrestricted access to Census records sought by the public of Canada - that felt it imperative to hear his testimony.

During his opening comments Mr. Radwanski made reference to a "promise" of confidentiality or to a "commitment made in perpetuity" no less than nine times. During questioning either he, or the Senators asking the questions, made several more references to the "promise". Mr. Radwanski claimed that Bill S-13 "breaks a promise of confidentiality made to Canadians". The "promise" to which he referred is the one of never-ending confidentiality touted by Statistics Canada and Chief Statistician Ivan P. Fellegi.

No documented evidence of the existence of this "promise" has been forthcoming, even though it has been requested several times, including through Access to Information. No evidence has ever been produced that would verify its existence. Such a promise does not exist, yet Mr. Radwanski, Chief Statistician Ivan P. Fellegi and others who oppose access continue to refer to it. Continued reference to this non-existent "promise" might, in the opinion of this writer, be considered fraudulent.

The first statement made by Mr. Radwanski made everything else he said a "motherhood" issue - namely whether or not the people of Canada can trust the word of their government. It is evident that insofar as drafting a Bill that is reflective of the democratic will of the people seeking their ancestry is concerned, we cannot, although not for the same reasons put forth by the Privacy Commissioner.

Mr. Radwanski was adept at giving answers to questions that bore no relation to the questions asked, and refused to answer some questions on the basis that he had not studied the subject matter. When questioned about the amendments on the table, he did not give a direct answer because "my usual practice would be not to comment on legislation that I haven't had the chance to analyze and have my staff review".

Senator Cordy asked Mr. Radwanski to explain the difference between the 1906 Census that had been released without restriction, and the 1911 and 1916 Censuses upon which S-13 would place restrictions. All were conducted under the same legislation, and similar Instructions to Enumerators. Mr. Radwanski replied "I have not found it helpful to immerse myself too deeply in these technical issues of nuances of language between the two. ……. I am afraid I cannot be helpful on the legal nuances because I have not studied them."

One would have thought that when he was invited to the hearing specifically to voice his views on the proposed legislation and the tabled amendments he would have come to the hearing prepared to do just that.

Mr. Radwanski's position on Bill S-13 can be summed up in his response to a question by Senator Milne relating to a letter from Information Commissioner John Reid in which he states his objection to Clause 8. That response was "…I am opposed to this whole piece of legislation anyway." At the same time he stated "I would not want to appear to be backing away from this by getting bogged down on questions of consent."

The Privacy Commissioner made references to "regulations governing the censuses taken between 1910 and 1918" being "inconsistent". The "regulations" to which he referred were, in fact, Instructions to Officers and Enumerators of Census. Those instructions, far from being "inconsistent", from 1901 to at least 1946 were very consistent in their references to records of Census being permanent records, being placed in the Archives of the Dominion, and having value as a record for historical use. In fact, the Instructions from 1931 on strengthened the case for access by stating, "The Census is intended to be a permanent record, and its schedules will be carefully preserved for future reference." Once again we wonder how records "carefully preserved for future reference" might be accessed in the future while at the same time, according to bureaucratic opponents of access, a "promise of confidentiality in perpetuity" was made.

Instead of considering as a whole all pertinent clauses of Instructions to Enumerators and the applicable legislation, Mr. Radwanski, as does Ivan Fellegi, delights in picking out individual sections of Instructions and clauses of applicable legislation to make his points against access. He reluctantly supports the original so-called "compromise solution" proposed earlier by the Chief Statistician and does not view Bill S-13 as a compromise.

Insofar as not viewing S-13 as a compromise is concerned, surprising as it may seem, we agree with him. We would however, take it a little further. Neither the original "compromise solution," proposed by Ivan Fellegi, nor the conditions imposed by Bill S-13 are, in our opinion, "compromises". My dictionary defines a compromise as "An adjustment or settlement by which each side makes concessions." Such a definition implies that there is give and take on both sides. The conditions imposed by Bill S-13, when compared to existing legislation, do not "give" - they only "take".

The Privacy Act, and Regulation 6(d) attached thereto provide a balance, and a compromise, that in return for providing information to Census, respondents are assured that information will remain confidential for a period of 92 years. The original "compromise solution", and the conditions imposed by S-13 are not in themselves compromises. They give nothing that current legislation - if obeyed - does not permit. The conditions imposed on Bill S-13 are simply a power grab intended to gain more control over access than current legislation permits.

From the time that Bill S-13 was introduced we have known that we would seek amendments to remove, or change conditions contained in the Bill that we viewed as less than acceptable. It was expected during this hearing, that clause-by-clause examination of Bill S-13, and consideration of at least two amendments that had been tabled would take place. In the end run, neither happened. We believed that the two amendments tabled before the Senate Committee would receive little opposition by the government. In the face of sceptical comments by supporters of access we gave assurances that those amendments would be debated and in all likelihood would be passed. We were wrong.

Following testimony and questioning of Mr. Radwanski and Ivan Fellegi, who was once again present, our belief in the democratic process was shattered. This happened when Senator Lowell Murray, who had led the questioning, moved "that the committee dispense with clause-by-clause consideration of Bill S-13, An act to amend the Statistics Act, and refer it back unamended to the Senate."

In the preamble leading up to the motion by Senator Murray he stated:
    "I know there are two amendments in circulation. To put it mildly, we would need more time to reflect if we are forced to deal with those amendments. On the other hand, I am prepared to see this bill reported without amendment. It was a government bill, sponsored for the government in the Senate by Senator Milne. I am prepared to see it reported without amendment and go right to third reading and Royal Assent as quickly as can be. I will put my feelings to the test by making a motion to that effect. If, on the other hand, we are into amendments, then there will be a fight here, ultimately. There will certainly be a fight in the Senate about it. We will be back to square one as far as I am concerned, because the consensus will have unravelled. Let me put my conviction to the test and move, unusually for an opposition senator, that Bill S-13 be reported without amendment."
It is unusual to the extreme for an opposition Senator to move that a government Bill be reported back to the Senate. It is even more unusual for an opposition Senator to move that the Bill be reported without amendment. It is our opinion that this action, rather than showing support for Bill S-13, was a deliberate move to shanghai the proceedings of the Committee. It was a move designed specifically to prevent consideration and debate of the tabled amendments that had the support of four out of five witnesses appearing at the first Committee hearing. In our opinion those Committee members who did not want to see a full clause-by-clause discussion and debate on the merits of the amendments have abrogated their responsibilities to the democratic process.

Senator Murray states that if amendments to S-13 are to be dealt with there will be a fight - either in Committee or in the Senate. If that is the case I say to Senator Murray "bring it on!" Let us have a full and open debate on the merit of the restrictions and conditions imposed by S-13, and all of the amendments sought by the people of Canada. Do not prevent that debate by political trickery. We have nothing to fear from such a debate. Let us have a Bill that truly reflects the will of the people.

My dictionary defines "democracy" as "a form of government in which political power resides in all the people and is exercised by them directly or is given to elected representative." Senators and Members of Parliament who truly believe in the democratic process - that government is there to serve the will of the people, and not the other way around - will surely participate in the debate and will vote for an amended Bill that truly reflects what the people seek. We call upon them to do just that.

The amendments sought by the people are, in order of importance:
  • Removal of Clause 8 - the supposed "informed consent" clause. This clause, if retained, will destroy forever any possibility of future Census being used for any scientific, demographic or historical research, and will prevent many genealogists from being able to research their ancestry. Barring total removal of Clause 8, clarification must be made to make it an OPT-OUT provision rather than OPT-IN. Such a provision would ensure that only those who have given conscious thought to the issue and specifically object to access of their information 92 years in the future would be excluded from the records.
  • Removal of all restrictions or conditions for access for at least the 1911 and 1916 Records of Census. The 1911 and 1916 Censuses were conducted under the same legislation and similar Instructions to Enumerators, as was the 1906 Census, the records of which have been released without restrictions of any kind, and have been placed online for the World to view.
  • Removal of the "twenty-year" period during which only partial disclosure of information found in Census records might be made by a researcher, and the need to commit to an "undertaking" regarding this partial disclosure. Need for these conditions have not been demonstrated. They contribute nothing to the privacy of respondents to Census. They do not prevent information from being known. They create a costly, bureaucratic procedure that in the end run will simply be an inconvenience for those that would share information through their family history.
We do not oppose Bill S-13 as a whole, but we most certainly oppose the unwarranted conditions it imposes on the access to Historic Census records that we believe is already permitted under the Privacy Act and Regulations attached thereto.

The Honourable Senator Lorna Milne - our champion in the Senate

Senator Lorna Milne was asked to sponsor Bill S-13, presumably to honour her for all the work that she had done on behalf of those seeking access to the Census records. As it turns out there may have been a very different reason for having her sponsor the Bill. We believe that she was asked to sponsor the bill, not to honour her, but to control what she was able to do regarding it.

Senator Milne has fought hard and long on our behalf, and for that we are infinitely grateful. As sponsor of Bill S-13, however, she was required to support the government position on it. We know that the restrictions and conditions imposed in Bill S-13 are not what she wanted and that she, like us, expected amendments to be made. As sponsor of the Bill she was prevented from presenting amendments herself, but we expected that she would be able to vote in favour of amendments moved by others. Once again we were wrong. We can only imagine the great difficulty she must have had making her final statement in the Committee hearing:
    "I am the sponsor of the bill and have a responsibility to support the government position on it. The government position at this time is that it will accept no amendments."
Senator Milne has been honourable in her dealings with us. It would appear that some others with whom she dealt on our behalf have been less than honourable with her. It is our considered opinion that she has been betrayed. As Caesar did with Brutus when he was stabbed in the back, we can imagine her asking "Et tu?"

Access to Census and the democratic (?) process.

For most of my adult life, I have believed that in Canada we live in a Democracy. Living in a Democracy I believed that we elect people to represent us in the House of Commons, and that those representatives should put forth the views of the people they represent. In so doing I believed that the common people had an opportunity to make a difference - to seek redress and right wrongs perpetrated by the bureaucracy.

Senators are not elected but are appointed by the Government - also to represent the people of Canada, but additionally to provide a "sober, second look" at what those in the lower chamber are up to. Except in matters to do with money, Senators have the same rights as Members of Parliament to introduce Bills and to seek change in the way things are done.

For the past six years we have been involved in a campaign to regain the public access to Post 1901 Census records that has been improperly, and believed illegally, withheld from us by the Chief Statistician of Canada. During that time we have seen at least three Private Member Motions and four Private Member Bills presented to the House of Commons. We have seen two Private Member Bills presented to the Senate, and finally a Government Bill that, while it gives access to records after 1906, imposes conditions on that access that the public has previously voiced opposition to.

Of the Motions brought forth in the House of Commons, only one - by Canadian Alliance Member Jason Kenny - proceeded past notice of motion or first reading. That motion (M-160 in 1999) would have compelled the government to look at the issue of access. However, during second reading, Liberal MP Mac Harb moved an amendment that changed the intent of M-160. The amendment changed M-160 to ask the government to "consider" looking at the issue. When it came time to vote, the Liberals were out in force and happily voted for the amendment, thus rendering M-160 virtually meaningless. Murray Calder was one of only two Liberal MPs that voted against the amendment. The amended, and meaningless, Motion passed without a recorded vote.

Ironically, two of the Private Member Bills dealing with the Census issue presented to the House of Commons and given first reading were those of MP Mac Harb. Bill C-312 received first reading on 5 November 1999. Bill C-380 (identical to C-312) was presented on 8 June 2000. Even though Mr. Harb's name was drawn more than once in the PMB lotteries he did not see fit to proceed to second reading with either of his Census Bills.

Liberal MP Murray Calder presented the other Private Member Bills to the House. In each case they were identical to Private Member Bills presented to the Senate by Senator Lorna Milne. Bill C-484 received first reading 2 June 2000 but died on the order paper when the 36th Parliament of Canada was dissolved. Bill C-312 received first reading 28 March 2001. On 21 November 2001 the Sub-Committee on Private Members' Business of the Standing Committee on Procedures and House Affairs deemed Bill C-312 to be NON-VOTABLE. Because it was NON-VOTABLE it received only one hour of debate in the House of Commons on 9 April 2002 before being dropped from the order paper. Three attempts to obtain unanimous consent of the House to make it votable were each defeated by Serge Marcil, Parliamentary Secretary to Industry Minister Alan Rock. The appearance was, and is, that the government is afraid to allow a free and open debate on the issue of public access to Historic Census records.

Senator Lorna Milne presented two Private Member Bills to the Senate. Bill S-15 was presented 16 December 1999. It received second reading and was referred to Committee for consideration. It died on the order paper when the 36th Parliament of Canada was dissolved. Bill S-12 was introduced 7 February 2001, received second reading and was referred to Committee. It was referred back to the Senate without amendment. It died before third reading when Parliament was prorogued 16 September 2002.

After five years of campaigning, the government finally acknowledged concerns of genealogists and historians, announcing on 24 October 2002 that legislation would be introduced to deal with the issue of release of Historic Census records. On 24 January 2003 the 1906 Census of the Northwestern Provinces (Alberta, Saskatchewan and Manitoba) was released without restrictions or conditions of any kind, and was immediately placed online for the World to view. In releasing this Census government has acknowledged that current legislation (Privacy Act and Regulations) permitted them to do so.

Release of the 1906 Census effectively halted a legal action that the Canada Census Committee had initiated. That legal action, if successful, would have required the transfer of 1906 Census records to the National Archives for subsequent public access. There was every expectation that the action would succeed, not only releasing the 1906 Census records but also setting a precedent for release of subsequent Censuses. It is believed this legal action was largely responsible for the government finally drafting legislation to deal with access concerns. It is further believed that release of the 1906 Census records, and presentation of the government legislation was timed specifically to halt the legal action.

The government introduced Bill S-13 - An Act to amend the Statistics Act in the Senate on 5 February 2003. Bill S-13 is a disappointment. It does ensure that Records of Census would be transferred to the National Archives. It does ensure that genealogists and historians could examine those records 92 years after the Census was collected. In so doing, however, it places conditions upon that access that were soundly rejected by those attending Town Hall meetings conducted by Statistics Canada in December 2001 and January 2002. Those conditions go against recommendations of the Expert Panel on Access to Historic Census Records that was commissioned by the government in November 1999. They go against all studies that have examined the access issue. They go against the unrestricted access requested by Canadians, and others, by sending more than 62,000 signatures on petitions, and in untold numbers of letters and email sent to Ottawa. They go against the precedent of more than one billion people being enumerated in Canada, England and Wales, and the United State without a single recorded complaint about information from Census being released after a period of closure.

Those conditions included:
  • Committing genealogists to an "undertaking" not to disclose to others, information other than basic "tombstone" information, for an additional twenty years beyond the 92-year period after which access to the records was permitted. The "undertaking" was not spelled out but was to be "prescribed by regulation".
  • In addition to committing to the same "undertaking" required of genealogists, those doing historical research would be required to have their research sanctioned by "a person who is a member of a category of persons prescribed by regulation".
  • The imposition of the above conditions upon the 1911 and 1916 Census records that, under the current Privacy Act and Regulation 6(d) attached thereto, should be released unconditionally on the same basis as were the records of the 1906 Census of the North-western Provinces.
  • The imposition of an "informed consent" clause whereby no future access to individual records of Census from 2006 and later would be allowed without the express permission (at the time the Census was taken) of the individual providing the information.
  • Inclusion of a fine, not to exceed one thousand dollars, for anyone found guilty, on summary conviction, of violating the above "undertaking".
While researchers can possibly live with some of these conditions for access, there has been no demonstrated need for any of them. Other conditions are intolerable.

There is no valid reason - legal, moral or logical - for the twenty-year extension that limits what information from Census before 2006 may be disclosed by a researcher. If the records after 92 years are accessible without restriction to any person doing research, there is no logic in preventing that researcher from disclosing to others a part of the information contained in those records for an additional twenty years. Such a provision adds nothing to the privacy of respondents to Census. It does not prevent the information being known. A researcher need only advise where the information might be found, rather than disclosing it themselves. It keeps the information from no one. In our opinion this twenty-year period is included simply to appease Chief Statistician Ivan P. Fellegi.

The 1911 and 1916 Census records were taken under the same legislative statute, and similar Instructions to Enumerators, as was the 1906 Census that has been made available without restrictions or conditions of any kind. In releasing the 1906 records without restrictions or conditions of any kind the government has conceded that existing legislation allows them to do so. There is no reason why the 1911 and 1916 Censuses should be treated any differently than the 1906. They should also be made available without restrictions or conditions of any kind.

By far the most disturbing clause of Bill S-13 is clause (8). It is an "informed consent" clause. As worded it is an "OPT-IN" requirement that would theoretically require EVERY person to give individual consent for their records to be retained and made accessible after 92 years. It is unlikely, however, that EVERY person enumerated will have the opportunity to either give, or withhold their permission for their information to be accessed in the distant future. In reality, the head of household typically fills out the Census forms, including information regarding minor children, visitors, servants and employees. This brings up a number of questions.

Does the head of household have the right to make a decision on opting in or out on behalf of those minor children? What about the case where the head of household opts out for minor children who, given the choice themselves would choose to have their records retained for future access. If a minor child reaching the age of majority wished to change the opting out done by a parent it would not be possible to do so. The right of that child will have been preempted. Does the head of household have the right to make a decision on opting out on behalf of visiting relatives or others, including servants and employees? Presumably the records of those that were opted out would be destroyed making it impossible for anyone having opted out, or having been opted out by someone else, to make a change in the future.

Experience with "OPT-IN" circumstances has shown that many people simply ignore such "check-box" options and leave them blank. Government typically views empty "check-box" options in a negative manner and many persons not having any particular feeling about the issue one way or the other, not responding to the question, would have their records excluded.

There has been no demonstrated need for an "informed consent" clause relating to release of future Census information. Such a provision is neither necessary, nor desirable. It would result in a degraded and fragmented history, making future Census records unusable for any scientific demographic research. In the words of Information Commissioner John Reid, "The historical database represented by census responses constitutes a developing, growing database of vital interest to the nation. It would be unprecedented and unacceptable to degrade its usefulness to future generations by the inevitable incompleteness that would result if even a small percentage of Canadians withhold consent."

There should be NO "informed consent" clause relating to access of future Census records. It should be sufficient to simply inform respondents to Census that information provided would be made available for research purposes after a mandated period of closure - currently 92 years. If we are forced to accept a "check-box" option, that option must be an "OPT-OUT" choice, and information for those who do not respond to the option, or do not specifically choose to opt out, must remain in the records for future access. In that manner, only those who have consciously made a choice and specifically object to access of their information after the mandated period of closure would be excluded from future access.

The Senate Standing Committee on Social Affairs, Science and Technology received testimony during hearings held 27 February 2003. Testimony was given by Chief Statistician Ivan P. Fellegi, National Archivist Ian E. Wilson, Alan Leadbeater - Deputy Information Commissioner, Office of the Information Commissioner of Canada, Gordon A. Watts - Co-chair of the Canada Census Committee, and Professor Terry Cook.

Two amendments were tabled. Four of the five witnesses appearing 27 February 2003 would treat 1911 and 1916 the same as 1906. The only person who would not treat them the same was Chief Statistician Ivan P. Fellegi. On the question of "informed consent" (Clause 8) a majority of witnesses favoured total removal of the clause. Barring removal of the clause, a majority favoured an OPT-OUT provision over an OPT-IN. Some Committee members wished to know the position of the Privacy Commissioner regarding Bill S-13. As a result, clause-by-clause deliberation, and consideration of the tabled amendments was put off to another day. Proceedings of the second Committee hearing was covered in the opening segment of this column.

What now?

In drafting Bill S-13 the politicians have listened more to one apparently very powerful, senior bureaucrat than to the 62,000 plus people who have sent signatures on petitions, and others who have sent untold numbers of letters and email to Ottawa, seeking the same, unrestricted access to Post 1901 (now 1906) Census records that has been available for 235 (now 240) years of previous Censuses. It is time they started listening to the people.

Bill S-13 was reported back to the Senate, without amendment, on Tuesday 29 April 2003. Debate on third reading began Wednesday 30 April 2003. It is hoped that the Senators taking part in the debate will give serious consideration to amendments sought by the people. Of greatest importance of those amendments is the removal, or modification of Clause 8 – the “informed consent” clause. As currently worded, Clause 8 could cause irreparable damage to future Census records, rendering them useless for any serious academic research, and causing many genealogists seeking information on us, their ancestors, to be disappointed.

It is now too late to contact Senators to seek amendments to Bill S-13. It is not expected that debate on third reading will continue much longer. Perhaps because of earlier postings to mail lists encouraging everyone to write, further contact with Senators is not necessary. By this time they are no doubt well aware of our concerns regarding S-13. We should, however, advise our Members of Parliament and the Cabinet of our opinions regarding the conditions imposed on access by S-13. Ask them to introduce, and to vote in favour of amendments, as described above, to Bill S-13. The possibility of amendments being made in the House may be slim, but that does not mean that we should not try.

Contact information, including e-mail and snail-mail addresses is available on the Post 1901 Census Project website at the URL following my signature. Also available is the wording of Bill S-13, and verbatim records of the proceedings of both Senate Committee hearings.

You are invited to join the Canada Census Campaign mail list by sending an e-mail to with ONLY the word SUBSCRIBE in the subject line and body of the text. If you prefer to receive list mail in Digest mode, change the L in the address to a D.

At the bottom of this page is a box from which you might send this column to others. Feel free to use it.

Until next time. Happy Hunting.

Gordon A. Watts

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