Past Session:

Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 24 - Evidence

OTTAWA, Wednesday, September 19, 2001

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-12, to amend the Statistics Act and the National Archives of Canada Act (census records), met this day at 5:30 p.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we are here to deal with a private member's bill introduced by Senator Milne, Bill S-12, to amend the Statistics Act and the National Archives of Canada Act (census records). With us today is Senator Milne, who will give a brief introduction to the bill. We then have two panels, the first from the National Archives of Canada, Statistics Canada and the Privacy Commissioner; and the second will include the Canadian Historical Association and Professor Watts, from Vancouver, who is in charge of the Canada Census Committee.

Thank you, Senator Milne, for whipping over here as quickly as you could following our adjournment. Why do you not proceed with your opening comments? We will then ask you questions. I trust that you will stay for the rest of the discussion so that if issues arise, we can come back to you.

Hon. Lorna Milne: Honourable senators, it is with a great deal of pleasure and some trepidation that I appear before you this afternoon to discuss my bill, S-12, to amend the Statistics Act and the National Archives of Canada Act.

As all of you are aware from the countless times you have seen me stand in my place in the chamber to deliver petitions, this bill is designed to allow access to individual census returns for research purposes. There is no doubt that this issue is of great concern to Canadians, as over 17,000 people have petitioned the Senate directly asking for the law to be changed to allow for access - 11,695 in this session alone and I have another pile in my office, I warn you - and 11,735 have petitioned the House of Commons in this session.

Although simply stated, the problem is a complex one. In 1906, as in 1901, in precisely identical words, the Order in Council regulating the 1906 census made it illegal for the door-to-door census takers to reveal any of the information they collected. The 1901 census has, of course, been released with no words of outrage. The wording was exactly the same for the 1906 census. This regulation was eventually embedded in the Statistics Act in 1918. Statistics Canada officials have ruled that these provisions effectively prevent Statistics Canada from releasing the 1906 individual census returns and those of all subsequent censuses. I do not share that view. I believe that those rules and regulations were never intended to prevent historical, medical and genealogical research, and do not, in fact, do so.

After the 1918 act, Parliament was saying two things, and still is today. On the one hand, under section 17 of the Statistics Act, no one may have access to the census records. On the other, Parliament allows for the transfer of records under the Privacy Act to the National Archives, where access is allowed after 92 years. If the law is followed, and if, after 92 years, the census is turned over to the archives according to that law, then section 17 of the Statistics Act becomes totally irrelevant because the records are no longer in the custody of the chief statistician. I believe quite firmly, and with good evidence, that the Government of Canada is presently breaking the law by refusing to release an historic census in a timely fashion.

Bill S-12 overcomes a problem that was created with the introduction of provisions governing census takers in the 1918 act by expressly providing a scheme for the release of the census records. First, the bill amends the Statistics Act to transfer all individual census records to the National Archivist of Canada. Second, the bill amends the National Archives of Canada Act to outline rules that are to govern the release of the individual census returns. Effectively, Bill S-12 allows the archives to release individual census returns 92 years after the census date. A person who does not want to have their information made available can prevent the release by filing an objection in the year prior to the ninety-second anniversary of the census.

Honourable senators, there is much at stake in this bill. Your deliberations on this bill will decide, in large part, how Canada records its history. I must ask you the following, then: Do you want Canada's history to be that of governments, corporations, institutions, churches and important or wealthy people, or should Canada's history be about its ordinary people, the demography of the country?

No one can help but notice the electronic revolution that we are all aware of in our offices every day. With the stroke of a key and a few bolts of electricity, we can communicate instantly with people halfway around the world. Just as fast as this communication is created, it is gone. With the stroke of a delete key, our history is disappearing right before our eyes. The census is the only personal record we have of all the individuals and the families who have lived in Canada that still remains. In fact, it is the only way in which government reaches out to every citizen and every family. Not even income tax returns are that pervasive, because children do not pay taxes and neither do a great many seniors.

Individual census returns are a link to our past that has helped thousands of Canadians deal with a myriad concerns, from legal issues to birth records to health matters. For example, in February of this year, Mr. Justice Sharp of the Ontario Court of Appeal ruled that a group of Métis now living in Sault Ste. Marie has treaty rights to hunt moose in the area surrounding the city. The key link between the current Métis community and their ancestors in the area was found in the pre-1906 census records. However, in Manitoba and Saskatchewan, where the vast majority of Canadian Métis live, that linkage is secreted in the 1906 census, the one that will not be released.

Another important use of census information is the link that it provides to Canada's immigrants. This summer I received letters from many of Canada's home children and their descendants. The home children were those people sent to live in Canada by the British government during and before the First World War and the Second World War. Many of these children were separated from their siblings when they arrived in Canada, and the only way they can find their families is through the use of census records. With the change in the interpretation of the current law, these people, now seniors, and their families, will never get a chance to meet their relatives, to heal the wounds of separation and, in some cases, abuse.

The medical community, in particular, has strongly urged the need to have census information.

As I told all honourable senators during my speech on second reading of this bill, David Hawgood of the Galton Institute said at a recent conference that census information is the most commonly used tool in medical genetics. On many occasions, the key to solving inherited medical problems or tendencies lies in the histories of the patients' families. Once again, I note it is only individual census returns that can provide the crucial link from the present to the past.

I will not pretend that this initiative has no opponents. You will hear from some of those individuals, and at least one of them shortly. However, you will hear at some length about a "promise" that was made to Canadians to protect their privacy, and how that kind of promise is inviolable and must not be touched by Parliament acting retroactively.

Honourable senators will also hear arguments in favour of privacy and the importance of keeping private information away from public scrutiny. To those who oppose the bill, I say that you cannot deny the fact that references to the national archives and the need to secure a permanent record can be found in the rules governing censuses throughout Canadian history.

In the brief you will find such references in 1901, 1906, 1926, 1931, 1941. It is quite perplexing to hear those who say that individual census returns should never be transferred to the national archives because it would break a promise to the Canadian people. In fact, the exact opposite is true. The 1906 census instructions to the census takers state specifically as follows:

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

I agree there are privacy concerns to be addressed here and that government should not, as a rule, be allowed to disclose private information. In fact, the federal government has good legislation in place right now that protects the privacy of individuals - the Privacy Act. As a result of the debate surrounding that act, a balance was struck between the need to protect privacy and the need to maintain historical records.

The Privacy Act states that personal information can be released 92 years after it is given to the federal government, unless there is a specific prohibition against its release. My bill honours that historic commitment made in 1983, long after the 1906 census regulations were written and long after the 1918 law was passed by Parliament. That commitment was undoubtedly made with the full knowledge of the privacy restrictions required of past and present census takers.

One of the thousands of Canadians who had been campaigning for the release of census records was Mr. Donald Nisbet. Mr. Nisbet was a well-read and educated man who passed away earlier this spring without getting the chance to complete his research because the records from 1906 have been withheld. I want to share with you part of the exceptional submission that he made to the expert panel on the release of historical census records. That submission was extremely well received by its readers. In discussing the provisions for privacy in the Statistics Act, Mr. Nisbet noted:

This protection extends, of course, as long as Statistics Canada has the legal custody of the census forms, but that custody is not expected to last for ever and the census schedules, like all government records, are subject to evaluation by the National Archivist, under authority of the National Archives Act, of their worth as historical docu ments deserving of permanent preservation and future consultation by the public for legitimate research purposes according to the discretion of the archivist and, since 1983, the terms of the privacy regulations. Why? I ask you why? If census records were permanently closed to any access as early as 1905, would the Privacy Act regulations written in 1983 specifically permit public access to name identified census records after 92 years, without excluding all those censuses that were taken after 1901?

The assertion that nominal census records were closed in perpetuity as early as 1905 is contradicted by a reading of the enumerators' instructions issued by the Governor in Council in 1906, and which carried the force of law. Instruction number 33 reads, in part:

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

The Privacy Act also states that personal information will only be withheld after 92 years where there is a specific statutory measure prohibiting the release. The opponents to this bill will tell you that census information should have the additional protection that is contemplated under the Privacy Act. They suggest that one should ignore the specific references to the archives of Canada and use the privacy provisions that are found in early statistics acts to override the Privacy Act.

Furthermore, they will tell you that the need to have full and proper participation by the public in the census requires that extra protection be given to these documents. Some have even suggested that all the information should actually be destroyed. In Canada, there has never been one complaint about the release of historical census records. In fact, there has never been a single complaint in the United States or Great Britain. When Newfound land and Labrador joined Confederation in 1949, the government there released all their census records to public access, including the 1945 census, taken just four years earlier. Again, there was not one complaint.

Over the years, in Canada, the United States and Great Britain, more than 620 million people have had the opportunity to protest the release of their records or their families' records. No one has ever done so.

This bill merely attempts to have Statistics Canada continue with its historical practice - the practice of all Western democratic countries - of releasing historical census information in a timely manner. I ask each of you, honourable senators, and maybe you should ask some of the witnesses who will follow me, are you prepared to deny our Aboriginal Métis community the means to prove their heritage? Are you prepared to tell sick Canadians they cannot access the keys to their health history? Are you prepared to tell Canada's home children that they can never find their siblings, aunts, uncles, and add another injustice to what they have already suffered? Are you prepared to allow Canada's history to be that of corporations, institutions and important figures, not ordinary people?

For me, the answer to all of these questions is no, which is why I have introduced this bill, and I hope it will have your support.

Senator LeBreton: My question on your bill deals with the Privacy Act, specifically, 7(3)(5), where it states that "every individual who files a return in the census and in respect of whom a valid written objection..." and so on, and it speaks of when 92 calendar years have elapsed. From a practical point of view, after 92 years, the person will no longer be with us. What mechanism is in place whereby people can ensure that when they are filling out these census reports, and of sound mind, that the release of their private census forms will be blocked? What mechanism is there, if they are not aware of the provision or not able to act on it, that ensures that some member of the family can do so? When you said there have been no complaints, I thought rather facetiously that there would not be many because most of the people would be dead.

Senator Milne: Precisely.

Senator LeBreton: Are you advocating that people fill in the census form much like we do income tax forms, where if we want our name on a permanent voters' list we have to give consent at that time, so that this information can be released at some point in the future?

Senator Milne: I agree with you that after 92 years, there will not be too many people around who actually filled out the census, because 92 plus 21 makes you pretty old at that point. There may be some cases where individual families know of something in their background that they do not want released, and they would have, under my bill, the freedom to block the release of that information.

Senator LeBreton: It is very unclear as to what procedures they would follow. When they fill out the census form, do they or their families have some mechanism by which they can be notified in advance? What happens? If someone wants the information, are the family members notified?

Senator Milne: I would think it would be completely up to Statistics Canada or to the archives to figure out a method. That would come under regulations rather than under the bill itself. However, I would visualize ads in the newspaper. I would visualize forms that were available upon request. I do not see that it would be very onerous. I do not pretend to be able to make regulations for Statistics Canada as to how they would go about doing this.

Senator LeBreton: Just to follow up on that mechanism, if this bill were to go through, from now on, when people are approached at their doorstep by a census taker, there would need to be some way of imparting the knowledge that the information that they are giving may be available for access by the public at some future time. I think it could cause some serious difficulties for census takers.

Senator Milne: If Statistics Canada, 92 years after or the year before that, takes out ads in the papers and asks people if they are objecting to either their own records or their family's records being released publicly, this would certainly let the public know that 92 years hence, it would be released. I think the point of the ads is public information for the future as well as for the past.

Senator LeBreton: You are suggesting that when the census is about to be taken, these ads would be put in the paper at that time?

Senator Milne: It would be within the year before. The bill states a year before.

Senator LeBreton: A year before?

Senator Milne: Before the 92 years elapses.

Senator LeBreton: I am talking about a census actually taken as of now.

Senator Milne: I see no problem whatsoever with StatsCan putting a box on the front of the form from now on. They cannot do it retroactively, of course, but I see from now on absolutely no problem with StatsCan putting a box on the front saying, "Ninety-two years from now, do you mind if this information is released to the public for research purposes?"

Senator Cordy: You spoke quite a lot during your presentation about balancing privacy with allowing the release of census records. My understanding is that Bruce Phillips, when he was the Privacy Commissioner, in his last appearance before the Senate, made reference to a compromise solution. That solution would satisfy the Privacy Commissioner but still allow for the release of census records after 92 years. Are you familiar with what he meant by the compromise? If so, would you explain that to us?

Senator Milne: Yes, I have spoken in the Senate about when Mr. Radwanski appeared before us with this compromise solution.

Senator Cordy: That was before my time.

Senator Graham: Mr. Radwanski is not before your time.

Senator Milne: Perhaps I should give a little bit of the history of what went on then. I introduced this bill in a previous session of Parliament. I introduced it not ever expecting it to come to pass. I introduced it in the hopes that it would gain enough public support to force the government to bring in its own bill.

Minister Manley, who was then the minister in charge of Statistics Canada and the archives, set up a meeting in the summer of 2000 with myself, with the then-Commissioner Bruce Phillips, with the National Archivist, from whom you will hear later - and he can probably answer your question more fully than I can - and with Dr. Fellegi of StatsCan. After some discussion around and around the table, we did come up with a compromise solution.

I am sure Mr. Wilson will correct me if I am wrong. However, my memory of it is that StatsCan would retain ownership of census data. The archives would have the physical keeping of the census data.

All private individuals who wanted to use that data would first have to sign a release form agreeing that they would not publish sensitive private facts that they learned from the census material. I saw that as no problem whatsoever because most amateur genealogists do not want to publish embarrassing facts about their families. They just want birth, name, death, number of children in the family, that sort of thing, and where they lived.

All scientists intending to use census data for research purposes would have to have their research projects vetted by a panel of their peers. I do not know of any research project that is not vetted by a panel of peers. That, again, was no problem.

I believe that this compromise solution went to the new minister. Brian Tobin is now the minister in charge. The result was not the legislation that I had hoped for. The result was a further study rolling the matter of the release of historical census data into a broader study of privacy issues. The only problem, as I am sure Mr. Watts can tell you later, is that when he appeared before that panel that was studying broader privacy issues to talk about census data, he was informed that the census was not part of their mandate.

I am sort of betwixt and between. I do not really know quite what is happening at this point with the new minister. The release seems to be in some kind of limbo. Therefore, I came forward with my bill once again.

Senator Graham: I want to begin by congratulating Senator Milne for this initiative. There are obviously many pros, and there are some cons as well. However, this is the kind of initiative taken by an individual senator, introducing a private member's bill, speaks very well for the Senate and for individuals like Senator Milne on issues of this kind.

I could only wish for more clarity, and perhaps we will have clarity as other witnesses come along. Obviously, Senator Milne, you are the extreme optimist when you suggest that old Al Graham is going to be able to write a letter at the age of 92 objecting to the release of any census information, or that indeed my children, or perhaps it should be my grandchildren, would not have any reason to object - they will have many, I am sure. I am wondering how you propose to clarify this information.

The bill proposes to add a subsection 7.3(3) to the archives act to the effect that an objection under subsection (2) of section 7 must be in writing. In writing by whom?

Senator Milne: I would assume that it would be in writing by someone who can prove his or her descent from that individual.

Senator Graham: Who can prove what?

Senator Milne: Either the individual or the family can prove the blood relationship.

Senator Graham: I suggest to you, then, that the bill is lacking and should have more clarity in that respect.

Senator Milne: Senator, I did not want to tie the hands of the government too severely. I wanted to leave it open for interpretation. I was initially hoping that this would force the government to act. It obviously has not so far. I am hoping that perhaps if we take it a step further, it will still force the government to act. The perfect solution would be a government bill. Since the government is not moving, this is the next best thing.

Senator Graham: I also believe, Mr. Chairman, that the concern expressed by Senator LeBreton with respect to how the public is informed, and when, is very pertinent.

I want to go back to your well-delivered speech of February 20 of this year at second reading.

Senator Milne: I will let you quote it to me because I do not have it here.

Senator Graham: I intend to quote it. The reference is more on the medical side with respect to the benefits of this legislation. At one point in your speech, you say:

The issue of census release is gaining more urgency as time passes. Access to census data remains an essential part of historical research in Canada. David Hawgood of the Galton Institute said at a recent conference in London that the development of the family pedigree, so familiar to all genealogists, including Senator Lynch-Staunton -

That is new information to me. Senator Lynch-Staunton is indeed a genealogist.

- is "the most commonly used tool in medical genetics."

At another point in your speech, you say:

I believe this bill achieves an acceptable compromise between the concerns and goals expressed to me by the various interest groups involved - Statistics Canada, the National Archives of Canada, the Privacy Commissioner of Canada, genealogists, historians, medical researchers and the Canadian public.

Further on in your speech, you say:

These records are of vital importance for Canadians not only for reasons pertaining to family history but also for medical, demographic and historic reasons.

If you could elucidate, clarify - again I am using the word "clarify" - or expand upon these references to the value to medical research, then I think it would add a lot to the value of the bill.

Senator Milne: There are many diseases that are either directly genetically inherited from one or other of your parents or where the tendency is inherited. I should have come with a list, because I do have it in my office. I believe Professor Gaffield has a list of the medical uses of genealogical information. He will be a witness later on this afternoon.

[Translation]

Senator Pépin: You have spoken about the medical community, medical researchers and of the importance of research on disease, but were the people whose files were studied given the opportunity to look at their own file? Do they realize that research has been done based on their file or do researchers study the files on the pretext that they are searching for the source of a certain disease without telling the people affected?

[English]

Senator Milne: The person who has the disease knows. They generally try to track it back themselves, which is how many of these family trees are compiled. The next question is whether you then warn other people who you know are on that family tree and perhaps liable to get that disease, or do you not? This is a matter of medical ethics, and I do not have the answer to that one. I know one person who has a family history of breast cancer. She refuses to be tested herself, because she does not want to know. On the other hand, she has a daughter.

Senator LeBreton: What question on a census form would produce that kind of information?

Senator Milne: The ones that you get on census forms, particularly. The other one is a genealogical tree, which is more recent than the historical census. However, we hear so much these days about the one that you can pick up on census forms having to do with early dementia. You hear of Alzheimer's disease. On census forms, you find that readily. Someone at age 46 is senile and is listed as such.

Senator Pépin: What is the listing?

Senator Milne: The listing is "imbecile."

Senator LeBreton: I think that is a stretch.

Senator Milne: Quite often, the early census takers did more than just put a tick in the column. They wrote down information.

Senator LeBreton: Not on present-day census forms.

Senator Milne: In the present, you fill it in yourself.

In the 1911 census, there is a column labelled "infirmities," and it says to specify the age when infirmity appeared. The first one is "blind," the second one is "deaf and dumb," the third one is "crazy or lunatic," and the fourth one is "idiotic or silly."

Senator LeBreton: That was then.

Senator Milne: That was then.

Senator LeBreton: Those questions are not on the census form now, at least not the ones that I received.

Senator Milne: Fortunately.

Senator LeBreton: It asks how many toilets I have or how many rooms in the house, not whether I am an idiot.

The Chairman: Some of us would struggle with into which of the last two categories we fall.

I ask our panel of Mr. Wilson, Mr. Sheridan and Mr. Radwanski to come forward. Welcome to all of you. I notice that you have statements. You might want to help us out a little by not necessarily reading your entire statement, because we can usually read faster than you can talk. However, please hit the highlights. I will begin with Mr. Wilson. Thank you again for coming back before us. You have been with us on other kinds of privacy issues in the past.

Mr. Ian E. Wilson, National Archivist, National Archives of Canada: Mr. Chairman, following your lead, I believe a handout has been distributed to all of you. I have included in that photocopies of sample pages from the 1901 census, one in French in the province of Quebec, and one in English for one area in the province of Ontario.

I see my role here as trying to provide background to our understanding of the current situation with regard to historical census records, and I also have a few remarks about Bill S-12.

As background, page 1 of the handout outlines the status of various census records at the National Archives of Canada, where the census records up to 1901 are available, accessible and used daily, both there as well as in other archives across the country. For the time since 1901, microfilm has been kept of the censuses from 1906 forward. These microfilms are the property and in the control of Statistics Canada and kept in our federal records centre, which is simply a service we offer to all departments. The original 1991 and 1996 census returns have not been microfilmed, but they are stored in another of our record centres.

When I was appointed as National Archivist just over two years ago, I had heard a great deal of discussion in the community about the legal side of this issue. I asked my archivists to show me what apparently was the promise made by the government of Sir Wilfrid Laurier in leading up to the 1906 census. The National Archives tries to enforce and apply the law of Canada to the many and diverse records that we have in our custody and control. I simply wanted to find out what this promise was that I had heard so much about.

We went through all the papers of Sir Wilfrid Laurier that we hold. We went through the records of the government departments that we hold of the period and of Sir Wilfrid Laurier's ministers. The only form of promise we could find is promulgated as a regulation under the 1905 Census and Statistics Act. I have given you the full wording here of section 26. Senator Milne has already referred to part of this, but this is the full wording regarding confidentiality as published in the Canada Gazette in 1906 relating to the enumeration and taking of the census. Clearly, it also must be read in the context of the following page, section 34, which refers to the fact that this is to be a permanent record. It should be legible. It is to be housed in the archives of the Dominion. At that point, all records in the National Archives, or the Public Archives of Canada, as it was then, were open and accessible. That was the norm. Clearly following on from that, the 1911 instructions noted the value of the census records as a record for historical use.

The 1912 Public Archives Act that was passed subsequent to this referred to and dealt with the disposition and regulation of all records within the federal government, and there was no special provision made for census records. They clearly fell under the archives act then, as they do now. The privacy regulations passed many years later provided for, through due discussion and appropriate debate, a time of 92 years.

Taken together, the provisions under the 1906 regulations provide a balanced, short-term confidentiality, obviously required in dealing with a census ultimately to be available as a permanent record. The regulations would not require the record to be legible unless it was intended that it be used and read by someone. Right now, those records have not been read by almost anyone since 1906.

Others have looked at this. The annual report of the Information Commissioner for 1999-2000 dealt at length with this issue and noted that, in his view, there was no promise that applied in perpetuity to every subsequent census, nor was it intended to block transfer of census records to the National Archives of Canada. Similarly, the expert panel on access to historical census records appointed by the minister responsible for Statistics Canada in 1999 urged the public release of the 1906 and the 1911 censuses.

I had my staff look at the issues of the day to see whether there was a concern about perpetual confidentiality. No. The newspa pers of that time discussed the census at length. They were tremendously proud that a portrait of Canada was going to be produced. For Western Canada, the 1906 census was very special because it was portraying a new society. In the five years leading up to it, the number of farms in Saskatchewan grew by 310 per cent. The number of farms in Alberta grew by 210 per cent. It was an extraordinary development in five years. They were proud of it. They wanted it recorded. They wanted it as a historical record.

The only concerns about privacy had to do with wondering whether this was some government plot to apply income tax or to develop conscription. Certainly, as you will see from the Winnipeg Free Press, this was the concern of the day. Were we going to use the census for conscription or taxation? I do not think we today will use the 1906 census for those purposes.

As for Bill S-12, the National Archives supports the objective of trying to harmonize the Statistics Act and the National Archives of Canada Act to ensure the proper disposition of and suitable access to census records, thus clarifying the situation. We recognize that the act limits the current discretionary authority of the National Archivist. Under the National Archives of Canada Act, I do have full authority to identify which records are of historical or archival importance. This does indicate, if it is passed, the view of the Senate and the Parliament of Canada that these are valuable, important and permanent records, so my discretionary authority will be limited.

At the same time, it does something that current authorities do not require. While I can identify records of historical importance, I do not seem to have the power to require the transfer of those records to the archives so that we can deal with them as part of the history of the country. That is one of the flaws in the current legislation. Bill S-12 addresses that.

We recognize in the archives, and certainly in the historical community, that there are privacy concerns regarding census information. We deal on a daily basis with privacy on a very wide range of diverse records from many governments, from many different offices, from cabinet and the Governor General, and on through the public service. We can manage that, we deal with that, and apply different approaches.

We also recognize that, over time, the need for privacy and the sensitivity of information diminishes. It is a fundamental principle of the Privacy Act as it currently stands that over time, the need for privacy is reduced and that an individual's right to privacy ceases 20 years after death. That is the current legislation in Canada. Some advocate changing that, but that is the current requirement, and that is certainly what we are applying on a daily basis.

I would simply reinforce what Senator Milne has said, that while we have had various census records opened at different times over the last 50 years, we have had no complaint whatever about our handling of those records from individuals affected by it.

I have noted here some other jurisdictions. The census records for Newfoundland for 1921, 1935 and 1945 are open. Some suggest, well, if we open the census, it will affect Canadians' willingness to participate in future censuses. We have an opportunity in Canada to make an empirical study of that. Do the statistics indicate that Canadians in Newfoundland are less likely to fill in the census because their census forms up to 1945 are a public and open record? Has it created problems in Newfoundland because their records are open? Certainly, we are hearing that our fellow citizens in the Prairies would very much like to see their records for 1906 so that they are on a par with their colleagues and fellow citizens in Newfoundland.

The United States releases records after 72 years, and the 1930 census will be released shortly. In the United Kingdom, census records are released after 100 years, and in early 2002, the 1901 census will become available.

Senator Milne has gone into the value for Canadians in some detail. I will leave this with you. I do not think I need to repeat or re-emphasize that the census is an absolutely fundamental, key record for the history of Canada. With Saskatchewan and Alberta coming up to mark the centennial of the date they joined Confederation, September 1, 1905, I know historians in the West would very much like to be able to study in some detail the extraordinary development that took place there from 1901 to 1906, and again leading on from 1906 to 1911 and up to the important role they played in World War I.

We think it appropriate that Bill S-12 moves things in that direction and ensures that Canadians will have access to this very important record in an appropriate way that balances, as we try to balance, and various governments from 1906 forward have tried to balance, short-term confidentiality, protection of privacy and, as time diminishes privacy concerns, ultimate access by families, by communities and by historical researchers.

Mr. Michael Sheridan, Assistant Chief Statistician, Statistics Canada: Honourable senators, the Chief Statistician has already provided you with a detailed set of comments. I will try to simply highlight what is in that package.

First and foremost, the Chief Statistician is most concerned with the preservation of the integrity of Canada's statistical system and, indeed, how the resolution of this very important issue will impact on it.

Canada, as you know, has an exceptionally strong statistical system, which is, I suggest, of benefit to the public. Statistics Canada's ability to produce information in the public interest depends fundamentally on the voluntary cooperation of respondents in providing complete and reliable information that is at times both sensitive and private.

The Statistics Act gives Statistics Canada some awesome powers and responsibilities. The agency is legally empowered to collect information on virtually any aspect of Canadian society. Notwithstanding the compulsory provisions of the Statistics Act, in the end, the statistical system relies on public cooperation. Unique among large-scale data collectors, the statistical agency can provide neither direct personal incentives to secure cooper ation nor effective sanctions if that cooperation is not forthcoming.

How do we manage to function without either direct incentives or effective enforcement powers? The fundamental answer is that we rely on our integrity. That integrity, in turn, is based primarily on our ability to keep our unconditional promise of confidential ity, and on the quality, relevance and objectivity of the statistical information that we in turn provide to the public.

It is for these reasons that the trust of the public in the integrity of Statistics Canada cannot be put at risk. Yet two fundamental cornerstones of that public trust are at stake. Do we continue to live up to an unconditional promise of confidentiality that was given by our predecessors? If we do not, how will we maintain the quality of key statistical information if the Canadian public does not trust us with their confidential information?

According to a recent poll conducted by Environics, Canadians are sufficiently worried that if proposed legislation such as Bill S-12 were passed, their cooperation in future censuses, and with Statistics Canada surveys in general, could be severely impacted. 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.

How could Statistics Canada assert that the public should trust it with future confidentiality if provisions for legally binding confidentiality protection were, in effect, retroactively changed? There is clear and empirical evidence from recent focus groups and qualitative research groups that a significant number of Canadians are very concerned about changing the conditions under which they provided personal information to Statistics Canada. Indeed, a national poll conducted for Statistics Canada showed that 49 per cent of Canadians agreed with the view that the government made a promise to Canadians that it would never release their personal census information and that the government should keep this promise.

In light of these concerns, the minister responsible for Statistics Canada has requested further, broad-based consultation with all Canadians on this matter. As a result, we are arranging for an independent consultant to conduct town hall meetings across the country, starting this fall, to find out how ordinary Canadians feel and what those ordinary Canadians want. Town hall meetings will be supplemented with focus groups to test various alternatives.

I have several quick comments on Bill S-12. The bill recommends that in the final year before full public access, individuals who wish their census information to remain confidential could write to the National Archivist to indicate that such a disclosure would be an unwarranted invasion of privacy. However, if you are dead, you have apparently waived all your rights to privacy, since your information will automatically be released. This is certainly not the case with the Statistics Act. There are no time limitations on access to census information. Even when a person is deceased, the provisions are still in effect.

Bill S-12 also requires that elderly Canadians must remember where they lived when they were very young children in order to object to the release of their personal information. Should this bill be passed, there would be no foreseeable way for Statistics Canada, or anyone else, for that matter, to exclude past census records from disclosure, except on the basis of an address as of the date of the past census in question. This is because census records are stored by geographic address.

In addition to creating an administrative nightmare, there would be no guarantee that objectors' requests for exclusion could effectively be accepted.

In closing, I think there are four important points to be made with respect to pre-1906 census data and information. Prior to the 1906 census, there was no legislated guarantee of confidentiality of census returns. The legislation was not gazetted. When collecting the information, census takers were issued instructions that included confidentiality guidelines, but those instructions had no force of law.

Returns from 1901, and earlier censuses, were made available to the public in keeping with provisions of the Privacy Act, which permitted such a release of personal records whenever the information was not explicitly protected in some other legislation. Starting in 1906, and continuing to the present day, the legislation giving the authority to collect census information contained statutory confidentiality provisions. These provisions cannot be overridden by the Privacy Act.

Mr. George Radwanski, Privacy Commissioner of Canada: Honourable senators, I have to confess that this whole issue has troubled me somewhat in this sense: I have never felt quite as passionate about the release of historical census data from the privacy point of view as my predecessor did. I felt that certainly the compromise position that was arrived at was a good solution to the issue. Beyond that, frankly, as an ombudsman concerned with privacy, I feel one has to calibrate one's outrage about different potential invasions of privacy, in the sense that a watchdog that barks equally loudly at every potential intrusion begins to be tuned out. This is not an issue that I would have put at the top of my scale. I thought the compromise, although it was imperfect, was a good solution and that we could move on.

This bill, however, is in an entirely different category. It gives me enormous concerns from a privacy point of view, not only from the broad perspective that the Government of Canada should always keep its word on a matter of confidentiality and should not break its promises retroactively, but also because this bill would be an instance of the Government of Canada doing truly frightening things to the concept of consent that could come back to haunt us on a whole variety of other issues.

This bill, of course, goes far beyond what has been proposed even by most of the advocates of access to census records, and far beyond the compromise that both I and the Chief Statistician have publicly supported. It also raises a deeply troubling issue by proposing legislation that limits or eliminates existing rights retroactively, and violates a promise repeatedly made to Canadians by successive governments. The bill, as you know, states that every individual who has filed a census return and has not made a valid written objection is deemed 92 years later to have given irrevocable consent to public access to his or her census return.

I would note parenthetically that, contrary to what Senator Milne said earlier, the bill is very clear that only the individual who provided the information can object to its release. Other parties who might be affected or concerned do not have that option. That is clear in the proposed addition of subsection 7.3(2).

In other words, the bill, if passed, would retroactively turn the act of filling out a census return into the giving of consent to public access to that information.

This would apply to all censuses taken to date, despite the government having explicitly told respondents that their returns would not be accessible. To call this "consent" is frankly to debase the term and to cause real concerns to anyone who must be preoccupied, as I am, with the concept of meaningful consent with regard to privacy.

I am aware that Senator Milne has stated that the government never made a promise of perpetual confidentiality to census respondents. She has said that such a promise would contradict the government's stated intention to retain the returns in the National Archives.

It is true that the instructions given to enumerators in the pre-1918 censuses reveal that the intention of the government of the day was that the census material should be retained in the National Archives for future use. This fact has never been in dispute, since the language of the regulations is quite explicit on this point. However, the language is equally explicit on the question of confidentiality. The instruction in the regulations to maintain the confidentiality of the census information may be in contradiction with the requirement to keep the information in a form suitable for archival records. However, this does not mean that it is invalid, or that its clear wording can be ignored. Legislators, as we all know, are human and are capable of entertaining contradictory notions at certain times.

While there may be some dispute as to what Parliament intended in the early censuses, there is none as to what the government actually said in its regulations and, from 1918 on, in legislation. Since 1971, when Statistics Canada began sending forms directly to respondents rather than using enumerators, respondents have been told in writing that their information will remain confidential.

It is worth noting that even the expert panel on access to historical census records acknowledges that from 1918 on, the government gave explicit legislative guarantees of confidentiality. Senator Milne also appears to agree with the expert panel that the promise of confidentiality can be disregarded because, according the panel, words like "perpetual," "eternal" or "forever" were used neither in the legislation nor in the more colloquial instructions to enumerators and are never found in the debates.

What this amounts to is saying that a promise should be assumed to be temporary unless it is specified as permanent. I consider this premise to be untenable in both law and common sense. A promise is perpetual unless it is specified otherwise. No system of contracts - and what we are talking about is a contract between the government and the governed - could survive without this basic principle.

This is why people drawing up contracts are careful to specify when and under what conditions they cease to be binding. No one expecting a fixed-period contract would enter into one that did not specify when it would end. That concern becomes relevant when we talk now even of legislation that would permit release after 92 years, let us say. What is to assure people that if such promises are not perpetual, that a successor to Senator Milne will not say, "Well, let us make it 30 years or 40 or 20"? That is a very slippery slope. This violation of a government promise to the citizens is a fundamental problem with this bill.

I believe Bill S-12 also raises other important privacy issues. The bill gives the National Archivist no discretion to refuse access if it is requested for statistical, genealogical or scientific research that is not defined. The bill purports to give people the right to object to the release of their census information. However, it restricts the right of objection to the point, quite frankly, of absurdity. Only an individual who is alive 92 years after the date on which he or she gave information on the census has the right to object. Furthermore, only the individual census respondent is considered to have any right of privacy. None of the other people affected by census information have any right to object. That could include relatives and descendants of respondents. Not only do the dead or very old lose their privacy, but so do their survivors. This could also include people who are not respon dents, but who are included in a census record because they are part of a household.

I would note that Senator Milne referred to the potential convenience or importance of being able to access medical information on the basis of a census. I know Senator Graham remarked that this could be one of the most important benefits of this bill. I would respectfully suggest that it is one of the most dangerous aspects of this bill. One of the great emerging issues in the privacy field is the issue of genetic privacy and who has the right to the genetic information of an individual.

For instance, quite apart from the individual respondent who may be long dead, relatives or descendants would also be subject to the discovery of information about them through such a release. It maybe would be helpful to some, but for others it could have devastating consequences - including, for instance, if the insurance industry were to discover this as a basis for making assumptions about people's prospects.

The bill also grants control over privacy rights to the head of the household. That is outside my scope as Privacy Commissioner, but that is a patriarchal model that really has no place, in my view, in the 21st century. Even this minimal right of objection is reduced to a privilege revocable at the discretion of the archivist.

An objection is only "valid" if the archivist is satisfied that the disclosure of information would be an unwarranted invasion of the privacy of the person who has objected. The bill provides no criteria for deciding what is warranted or unwarranted. The National Archivist is not required, in this bill or anywhere else, to have any expertise in privacy issues and there is no avenue of appeal of the archivist's decision.

Most importantly, and I must return to this, this bill would make a mockery of the principle of consent, imputing consent retroactively where it cannot possibly be considered to have been given, either implicitly or explicitly. I must add in that connection, also, that one of the most important concerns in the privacy field - and certainly it is very much reflected in Bill C-6, the newly proposed private sector legislation - is the fundamental importance of clear and explicit consent. Much of my energy is being spent explaining to various businesses that implied consent or negative option consent really is not good enough, for a whole variety of reasons, from a privacy point of view. This takes us beyond even implied consent. I regard negative option consent as a very disturbing distortion of consent. Consent is fundamental to privacy and democracy, in my view.

I will end by adding one more point, which is that, quite frankly, if this bill or anything like it were to pass and people were to express concern to me about their privacy rights in a future census, or indeed with any other Statistics Canada questionnaires that might be at least or more sensitive, I really would not be able to tell them that I felt they had nothing to worry about and that they should go ahead and comply. I would have to tell them that they would have to weigh their privacy rights versus the legal requirement to cooperate in a census, or the willingness voluntarily to participate in any other study. That would be, I think, quite regrettable.

The Chairman: Mr. Sheridan, you are about to have an independent consultant conduct town hall meetings. Two ques tions: First, when do you intend to finish those; and second, will the consultant's report be a public document?

Mr. Sheridan: The request for proposals on that process will be issued next week. The document would be a public document because the tendering process will be run by Public Works. Therefore, the document would be in the public domain.

The Chairman: That means it is subject to access to information. I do not believe that automatically makes it a public document. Let me ask the question differently. Once you receive the report, if we ask you to file it with us immediately, would you have any objection to doing that?

Mr. Sheridan: I do not have any objections. The report is clearly being done at the behest of the minister. The report will be delivered to the minister. The decision as to what sort of broad circulation it should have would be up to the minister.

The Chairman: The minister is the Minister of Industry; is that correct?

Mr. Sheridan: That is correct.

The Chairman: If one is doing a study on what people think about a particular issue that relates to privacy, to say that the results must be kept private borders on an oxymoron, if you will pardon me for saying so.

Mr. Sheridan: Not to second guess my minister -

The Chairman: I am quite happy to second guess him. That is okay.

Senator Roche: It seems to me, Mr. Chairman, that the findings of the study would be relevant to our consideration of the merits of the bill. Thus, we would want to have that information before making a final determination on the bill.

The Chairman: In part, that is what prompted me to ask the question.

Senator Roche: That is what I thought. I wanted to clarify that. I hear you saying that the committee would be the beneficiary of such information prior to our making a determination on the bill.

The Chairman: The second part of your sentence is, of course, for the committee to decide. I was trying to ascertain the time frame for getting the information that, speaking personally and not as chair of this committee, I would find useful. That was the purpose of my question.

Senator LeBreton: I thank all of our witnesses for their presentations. I am concerned about the privacy issue, Mr. Radwanski, and the medical issue. This goes back to another study we have been doing in this committee, on Bill C-6. There is this idea that people's privacy can be compromised and that may affect other members of the family. Insurance was mentioned, but it could go so far as someone not getting a job. I have great concerns in that regard.

I also am very sympathetic to what Senator Milne is trying to do. Many people have written to her, and many people have written to me as well. I have always had some difficulty with this particular bill. I have some correspondence here from someone who has been trying to trace her family. Is there any mechanism at archives or in StatsCan whereby individuals who wants to try to trace their families can do that? They may have relatives. What does a person like that do? Senator Milne, by presenting this bill, has certainly been cognizant of people with that kind of concern. Is there some mechanism right now that we have overlooked that would allow people to get information that in no way tampers with the privacy of many other people who may be connected to that family?

Mr. Radwanski: No one seems to want to answer that. Let me go a step ahead of the question. Maybe they can fill in with what can be done now. My suggestion, senators, is to draft, introduce and then pass legislation that reflects the compromise position which precisely permits individuals to research their own genealogy, subject to undertakings not to use it for other purposes, and that also permits legitimate research, provided again that it does not get used in such a way as to compromise the rights of individuals in the kinds of areas about which we are concerned.

There is a solution, and it is before us, but it is not the bill that is before the Senate at this time.

Mr. Wilson: You ask a very general question, senator, in terms of tracing family trees. It is a very complex process depending on your family, where they were, or what they were involved in.

Senator LeBreton: And if they want to be traced.

Mr. Wilson: There are many federal records. There are many records at the provincial level. There are records overseas. The Church of the Latter Day Saints has an extraordinary Web site. We have an excellent publication, "Tracing Your Ancestors in Canada," which indicates what kind of records are available, open, and fully accessible in accordance with privacy and other legislation. In some instances, perhaps you do not need the census record because you can find some of this in other places, such as in criminal or court records that are open, or in military records or a whole range of sources. Tracing ancestors is very much a detective endeavour. You follow the clues and follow up on different bits of evidence left from the past. It is just that the census is such a comprehensive document covering all Canadians at a given point in time. That is what makes it so valuable and important.

As for the compromise solution that Mr. Radwanski has mentioned, from my point of view, I would certainly like a lot more information about it. I have seen several versions of it. I am not quite sure to which version he is referring. However, we commented last summer to StatsCan on two versions, and I have not heard anything further as to what is the current version of the compromise solution.

Senator LeBreton: I think we should certainly look at the compromise. Mr. Sheridan, I probably gleaned this from my question to Senator Milne. However, I think a piece of proposed legislation like this would seriously hinder the ability of StatsCan to ever go out and collect census data again. Right now, when the census forms arrive, there is a certain resistance. If people thought for a moment that privacy was going to be further compromised, you would probably not be able to develop a good profile of what is actually happening in the country. When you have done this study, I think it will be crucial for us to have it so that we can then determine how to proceed.

The Chairman: That was more of a comment than a question, but is there anything you want to say in reply?

Mr. Sheridan: I am in full agreement.

[Translation]

Senator Pépin: An Environics poll has revealed that many people are concerned. We know that the types of questions asked, as well as their wording, can lead a respondent to feel reassured or alarmed.

You said that public information sessions will be held in order to educate people on the bill. People will probably want to know whether they have the right to deny access to their file. The provisions on exceptions indicate that archivists receive a written notice forbidding them from releasing the information in the 92 years following the census. After having filled in their census cards, will people be able to tell you that they wish to deny access to their data? I am convinced that people will be wondering what they can do to protect themselves.

[English]

Mr. Radwanski: The bill does not provide for objecting before 92 years have elapsed, which is one of the very peculiar facets of it. Even if you could write a letter after you fill in the form saying, "I do not want my information used," there are two problems. First, it is negative consent, opt-out consent, which any privacy expert will tell you is not a very good sort of consent because it implies a high degree of awareness on the part of the respondent and a relatively high degree of education, sophistication and attentiveness. Of course, it does nothing for third parties who may be involved later. The individual may fail to send such a letter. That is why negative option billing is so unpopular, and many people have expressed concerns about that. I do not think the Government of Canada should be in the business of enshrining negative option on sensitive, personal information whenever that option can be exercised.

[Translation]

Senator Pépin: The public information sessions will have to highlight certain advantages, as indicated in the bill, so that more information can be gathered in order to do research. I understand what you are saying. Amongst all this information, we need to find a balance between not alarming people and educating them about their rights.

Mr. Sheridan: Regarding the proposed meetings, until now we have only heard about one aspect of the issue, namely the right to privacy of Canadian citizens. This is not a daily concern. We must give more Canadians the opportunity to speak out on the subject. We've heard the point of view of the archivists. It is specific, clear and organized.

The proposed meetings will give Canadians the opportunity to fully discuss their position; they may want to accept the proposal or suggest amendments which have not even crossed our minds. That is very important. That debate has not yet been held.

[English]

Senator Graham: Mr. Sheridan, since you were the last responder, I would like to ask you about the town hall meetings you intend to have this fall.

When was the decision taken to have town hall meetings?

Mr. Sheridan: The decision to proceed was taken about a month ago.

Senator Graham: Was this as a result of Bill S-12?

Mr. Sheridan: No, this was as a result of the minister's response to the expert panel, which said there should be broad-based consultation with Canadians. One of the options for achieving that would be to hold a consultation to review the access and privacy aspects.

Senator Graham: Bill S-12 had no relation to your town hall meetings whatsoever?

Mr. Sheridan: No. The minister made the decision at the time of the release of the panel report, which was in, I believe, December 2000.

Senator Graham: Mr. Wilson, in your presentation, you say that the National Archives supports the objective of the bill. One could support the objective of the bill and not be in total agreement with the content, or the approach that is taken in various clauses. Is there anything that you would like to see changed? Are there any amendments you would like to see?

Mr. Wilson: As I noted, the bill does help to clarify a situation on which, as you have seen on this panel, there is disagreement. Was there a promise or was there not? Clearly, that has informed some of the polling that has been done and some of the focus groups. If you posit that there was a promise, then I think most Canadians will say, "Yes, governments should respect the promise." If you say there was no promise, that there was a balance, and should we continue the balance, you get a different response.

I think the bill is workable. I think the National Archives could implement this bill if it were passed. Yes, we support the bill.

However, the key thing is to clarify where the law of Canada stands today and the status of access to the historical census records.

Senator Graham: Mr. Radwanski, you have never shied away from using strong and compelling language at the appropriate time. You said you had an enormous concern that the bill broke promises. You used the word "mockery."

When I quoted three references in Senator Milne's speech in the Senate at second reading to the medical benefits of this proposed legislation, supported by the testimony, I presume, of others, you said that you took the opposite view to mine. You said that you saw dangerous elements in the bill in respect to the medical references.

I will get somewhat personal here. We have in our family an adopted child. The first time that she voiced some concerns was after she was married and started to have children. She wondered whether she should be seeking out her biological parents. This is one of the things I was thinking about when I talked about the medical benefits as referred to by Senator Milne.

You talk about the negative option. It is almost like the negative billing that we faced in the introduction of legislation relating to the cable division some years ago.

You have also talked about a compromise. In your paper you refer to the Privacy Commissioner and the Chief Statistician. I do not think in your presentation today you mentioned that the Chief Statistician has publicly supported a compromise solution, but I wanted to have that on the record. I presume, Mr. Sheridan, you would agree with what I have just said, that the Chief Statistician and you, indeed, would support the compromise solution?

Mr. Chairman, just for the record, as presented to us in the paper from Mr. Radwanski, the compromise would be to allow access to the census records to individuals wishing to conduct genealogical research on their own families and to researchers whose proposed research subject and methodology passed a peer review, on the condition that they sign an undertaking setting out both the conditions of access and what identifiable information they may make public. Future censuses would be absolutely transparent with respect to confidentiality and the conditions under which the returns would be made available to researchers in the future.

I think you suggested perhaps a new bill should be introduced related to this observation.

Mr. Radwanski: I will answer your second remark first.

I think that a bill along the lines of this compromise position would capture the legitimate concerns, needs and wishes of people to research their own genealogy. It would also capture the legitimate wishes or concerns of historians or researchers about other kinds to access this information, subject to undertakings not to use it in ways that could bounce back and harm individuals.

I am no expert on legal draftsmanship, but I would think that a de novo bill, drafted on the lines of those principles, would probably be easier than amending this particular bill, which goes in a somewhat different direction.

I note that Senator Milne is very much trying to do the right thing with this proposed legislation. She herself has indicated she only brought it forward because the government has not been moving on the compromise position.

The answer then is, if the compromise position is acceptable, move on that through your own initiatives, rather than on a different bill that potentially causes very serious problems.

On your first remarks, I do not doubt that for some people, being able to trace their genealogical information could have medical or other benefits. The compromise position allows for that.

This bill would, while providing those benefits, I suppose, raise a host of other negatives, because anyone could have access to anyone's genealogical information, which could, therefore, be used for purposes that, far from being helpful, could be harmful. The trick is to find a way to do this that achieves the one without doing the other.

Just for the record, I certainly did not intend to describe the senator's bill as a mockery. I used the term only in a very specific context, which is that it would make a mockery of the concept of consent by building in something that is a long way from "consent" as any of us understand it. I only used that term in that limited sense.

Senator Graham: As I said at the beginning, Mr. Chairman, I think Senator Milne should be congratulated -

Mr. Radwanski: I agree.

Senator Graham:- for spending so much time, and not just this time, but on previous occasions, on introducing a bill on her own initiative, prompting such interesting and public debate, and bringing such an eminent panel before us, albeit that the members of this panel publicly disagree as to its merits.

Senator Keon: Mr. Wilson, and Mr. Sheridan, who would be accountable for privacy in the situation where you have a flip of information from StatsCan to the National Archives? Could you both comment on that?

Mr. Wilson: Effectively, when records are transferred from any department to the National Archives, the National Archivist becomes accountable for protecting privacy. Once in a while, the Privacy Commissioner gets in touch with me to remind me of certain things if some of my staff have strayed. Essentially, the National Archives becomes accountable. As a senior public servant, the National Archivist is accountable for the protection of privacy of the records in the custody of the National Archives.

Mr. Sheridan: Currently, Senator Keon, I hold the responsibil ity for those census records and their associated confidentiality, and for ensuring that none of that information is released without the individual's consent. You can still get your own census record. There is not a long lineup for that, but there are people who do want their own information. In the context of everything post-1906, Statistics Canada still holds responsibility for the confidentiality and privacy of those records.

Senator Milne: For my own burning curiosity then, if my 91-year-old mother demanded to see her own 1906 census record, would she be able to?

Mr. Sheridan: If we can find it.

Senator Milne: She can tell you where she lived.

Mr. Sheridan has spoken of this independent consultant conducting town hall meetings across the country. Will these meetings be advertised; where they will be held and when? Will this be circulated publicly, or will there be a picked audience for the meetings?

Mr. Sheridan: It is our intention to have a broad-based consultation that would include widespread advertisements of the town hall meetings. We have allocated a fairly significant and substantive communications budget for this effort. The goal is to debate these important issues and to see where Canadians stand on them.

Mr. Radwanski: I just wanted to comment on this concept of town hall meetings or surveys, what have you. Certainly, town hall meetings can be valuable. However, if something is troublesome from the point of view of rights of Canadians, then a poll or a series of town hall meetings cannot make it less so. Quite frankly, if it is going to be the kind of open town hall meeting that Mr. Sheridan just described, my concern would be that many of the 11,000, or however many people, who have written that they really want these records thrown open because they have a special interest as historians, genealogists or whatever, might flood these meetings. However, that would do nothing to change the rights, wrongs or appropriateness of a particular approach.

I would be more comfortable with honourable senators reviewing these issues on their merits in the legislative process, rather than putting too much weight on consultations. Frankly, having been a consultant in my past life, I can tell you that it is not difficult to get almost any kind of results you want from these processes. I leave that for you to consider.

The Chairman: We would be happy to debate that with you. I have had some modest experience with that problem.

Senators, our next panel will be composed of Mr. Gaffield, the immediate past president of the Canadian Historical Association; and Mr. Watts, who is the Co-Chair of the Canada Census Committee.

I said earlier that Mr. Watts was from Vancouver. In fact, he is from Port Coquitlam, which is a much nicer place than Vancouver. We are delighted that he is here before us.

In view of the lateness of the hour, I will ask each of you to be as succinct as possible.

Mr. Chad Gaffield, Immediate Past President, Canadian Historical Association: Honourable senators, I am a professor of history at the University of Ottawa and director of the Institute for Canadian Studies. However, I am here representing the research community. I should say that it is happy, in a sense, that by chance, even though I suppose as president of the Canadian Historical Association I might be here anyway, I have worked with census records for the last 30 years. I feel comfortable discussing that with you.

I should also say that, perhaps because of that, I was one of the five authors of the expert panel report. As you know, Minister Manley, in light of the discussion that has gone on over several years, appointed an expert panel composed of retired Supreme Court Justice Gerard V. La Forest; Professor John McCamus, an expert on privacy; former Senator Lorna Marsden, who is now the President of York University; Rick Van Loon, the President of Carleton University; and myself. The five of us have studied this issue as much as anyone, I would modestly say, just because we spent so much time on it. I would like to share with you the results of our reflections and perhaps put this debate we have had this afternoon in a different light.

I will start with the punch line of our report. It basically says that Canadian tradition and practice with regard to the census are excellent and should be maintained. We see no reason to change. The current practice that has worked very well over decades now should continue. Why is it such a success story? There are two reasons. First, we have the finest statistical agency in the world. Through Statistics Canada and its predecessors through the Department of Agriculture in the 19th century, Canada has developed an outstanding statistical census enumeration system. Second, we have an outstanding National Archives and national archival tradition.

There is simply no reason to change.

Why did the expert panel set up by Minister Manley to study this from every angle - and we went over every issue that has been raised today - come to that conclusion? We focused on the two calls for change. They came from, on the one hand, Mr. Bruce Phillips when he was the Privacy Commissioner. He raised a concern about privacy. Subsequent to that, the Chief Statistician raised a concern about the legal context. We said, "Let's look at that."

On the privacy side, we found, in a sense, the opposite of what you might think. When we studied the history of census taking in Canada, we found that over the last two centuries, there has been a sharp decline in terms of privacy. Why is that? It makes a lot of sense when you think about it. In the mid-19th century, for example, when the modern census was established, it was quite unprecedented to have a government official come to your door and start asking questions. Privacy concerns in that time were enormous. People thought, "You are asking me about a census enumeration, but what you really want to do is raise my taxes." Later in the 19th century, and in a military context, there was concern that people would end up being conscripted. "You say you are doing this for a census, but no, you will turn around and use it for conscription." In the late 19th century, there was concern among the immigrant population in Canada that the government would then turn around and want to do something else with them. The privacy concerns earlier in the history of the census in Canada were far greater than anything we could imagine now.

How was that dealt with? How was that addressed? Under our government officials, the policy of confidentiality was established. From the get-go, from the mid-19th century, it was made clear in every regulation, every instruction, that a census enumerator could come to your door and collect information, but it would be held confidential and never used against you. It would never be used to raise your taxes, conscript you, or for any other issue. It was used for the purposes of learning about the society, both then and over the long term.

Over the decades, confidence grew in the ability of the government to collect the information and not turn around and use it against the person. Over the decades, there were no examples of that, despite all the concerns throughout the late 19th century, early 20th century. The confidence in the system grew, and increasingly, the response rate became greater and greater. As you can imagine, the response rate was much less in 1851, and it got better and better through the 19th century, and in the 20th century it became exceedingly good. People are not worried. There are no precedents and no complaints that "Statistics Canada took this information from me and then used it against me." The policy of confidentiality was key to that. That explains the success of the system.

There were focus groups held and so on. People now are simply not concerned. That is why you hear today that there are no complaints. They are concerned about many other privacy issues, as we all are. We are concerned about what is happening to our Visa numbers and our telephone records.

The Chairman: I know you are on a roll, but can I ask you to be somewhat more focused?

Mr. Gaffield: My second point -

The Chairman: That was only your first point?

Mr. Gaffield: In terms of the Privacy Commissioner and why this appeared on the radar screen, it is simply not an issue now.

Secondly, there is the legal issue. Did something happen in the early 20th century? In 1906, 1918 and so on, was there something new legally that changed the situation? We found, again systematically going through the evidence, that maybe there was no law in the 19th century in the same way there was in 1918, for example; however, the legal context was exactly the same. There were penalties. The legal context was identical. Certainly in our society we have codified many more things. There are many more laws now, and over time we multiply them, but in terms of the practice, the policy, the legal framework and context, it was simply identical throughout the 19th century into the 20th century. The wording in the law in 1918, for example, is exactly the same as what was said in 1871. The legal context did not change.

When our expert panel report was finished, our understanding was that it was sent to the Department of Justice. I would invite you, since you are looking for information, to see if there was a study done by the Department of Justice of the legal aspects, to determine whether we were right that the legal context had not changed and the 92-year rule was as good as ever. I am not sure you have all the information you need on that score. I would invite you to get it if there are more concerns on that.

At the end of this report, we felt comfortable. Why? It was because of our confidence in Statistics Canada, our confidence in the National Archives, and our confidence in the Canadian population. The history and the practice and tradition of the 92-year rule in census taking are the same basically as in the United Kingdom, the United States, and so on. Their practices have been running along, as have their traditions and customs. In fact, the systems developed similarly in the 19th century.

It is important for us to understand here today that we are talking about a story of success. It is a wonderful Canadian story. I think it creates a false debate for us to make it appear as if the Privacy Commissioner is pitched against Statistics Canada and pitched against National Archives. In fact, the expert panel had submissions from all those groups, looked at it all, and said that this is getting wrapped up in a debate that does not have anything to do with the 92-year rule or the census. You can take a focus group and maybe you can say certain things to them and get them worried about Visa cards and so on, but that is a whole other issue. The Canadian practice and tradition is a success and should continue.

The question became, why do historians care about this? My backpack and my muscles would only allow me to bring some of the books off my shelf. The studies of materials like these documents - in fact, this is what we are talking about, and these are the documents that we are talking about - have led to studies on not simply our native peoples, minority groups and so on. In order to access our historical memory and to understand ourselves, we need a document like the census. The government paid more money for that than any other document in the late 19th century, early 20th century. The taking of the census was the biggest peacetime activity in Canada. We cannot underestimate how much was invested in that. To ignore that, it seems to me, is to do an incredible disservice to our history and memory and to deny us knowledge of the true making of Canadian society.

I will stop there because I know my colleague, who represents the genealogical community, would like to speak. I would just like to say that the expert panel report is a consensus. We worked hard at it, and it was a panel put together with the accord of Statistics Canada, National Archives and so on. It is unanimous. A legal opinion on this has already been given. I would invite you to celebrate our history in this policy and practice, like other countries. Let us move on and keep studying ourselves and focus on the really important privacy concerns that we all share. I was happy the Privacy Commissioner signalled that. This is not a privacy issue. This is about knowing ourselves and celebrating a policy and practice that has worked so well.

Mr. Gordon Watts, Co-Chair, Canada Census Committee: Honourable senators, I am one of the common people, and as such I am sure you will forgive me for being a little nervous here today. It is my pleasure to come before you in support of Bill S-12, to amend the Statistics Act and the National Archives of Canada Act.

The first decade of the 20th century saw the greatest influx of immigrants in the history of Canada. From 1900 to 1910, 1,819,930 immigrants from 49 different ethnic origins came to Canada. From 1911 to 1920, a further 1,573,432 came. Another 498,752 came between 1921 and 1925. Without access to historical census records, descendants of many of these immi grants will never know where their ancestors originated. It has been estimated that 7.5 million people in Canada have an interest in genealogy and family history to some degree. I speak on behalf of those people.

Let me make it clear at the outset that genealogists and historians do not seek to obtain something new. What we seek is something old, both in respect of the information involved and in the fact that it is something that was available in the past. We seek something that has been taken away from us because of misinterpreted legislation, and the fact that a few paranoid government bureaucrats feel that someone, at some time, might decide to look at records that may contain information about their ancestors. Unfortunately, those bureaucrats have control over the records we seek.

There are 235 years of census records that have survived since the first census of New France conducted in 1666 by Jean Talon, up to and including the 1901 census of Canada, that reside in, and are under control of, the National Archives. As such, they are available to any person or body for research purposes. Copies of these records are available for purchase by libraries, genealogical and historical societies, and individuals. We suggest that access to 235 years of records constitutes a substantial precedent. We see no reason why access to subsequent censuses should now be withheld. Obviously, Statistics Canada has a different view. They claim that as far back as 1905, the people of Canada were given promises and guarantees that the confidentiality of a census would last forever. They have been unable to substantiate these claims. Access to information requests for documented evidence of the existence of such promises and guarantees were submitted. Statistics Canada has been unable to produce any such evidence.

Under our system of democracy, change in legislation takes place because of representations made to the government by the people. This is done through representatives elected by the people. It is the reason we are here today. During the 36th Parliament of Canada, representations made by the people resulted in the appointment of the expert panel on access to historical census records. My educated guess regarding the number of signatures on letters, e-mails, submissions to the expert panel, and petitions seeking to regain public access to historical census records would be, in excess of 16,000. During the current Parliament, in excess of 22,000 signatures have been collected on petitions alone to the House of Commons and to the Senate. These figures are added to daily. There has been no corresponding representation to the government by people opposing access. Of the reported 95 submissions sent to the expert panel, only two opposed access to these records. One simply objected to the concept of breaking the promise he believed had been made. The other was a submission by the National Statistics Council, complete with a list of council members. Prominently displayed below the name of the chairperson of the council is the name of ex officio member Dr. Ivan P. Fellegi, Chief Statistician of Canada. It is a foregone conclusion that any organization associated with Dr. Fellegi would oppose access. Dr. Fellegi and StatsCan would have you believe that knowledge and information provided in a census to be released 92 years in the future would cause respondents to be reluctant to answer questions or to answer them truthfully.

Surveys by Environics Research Group that were conducted by StatsCan on behalf of the expert panel did not bear this out. Responses to the question in these surveys remain positive, even after it was unduly stressed that promises of never-ending confidentiality had been made. Reading these surveys, it is obvious that StatsCan manipulated the questions and information provided in a blatant effort to obtain a negative response. It did not work.

Bill S-12 has been very well thought out. It will satisfy the concerns of those that seek public access to historical censuses. It should also satisfy those people who have concerns regarding the confidentiality of personal information given in response to a census. The delay of 92 years before release to the public provides a reasonable balance between privacy concerns and the need of genealogists and historians for information that no other source can provide.

This delay is consistent with the provisions of regulation 6(d) of the Privacy Act of Canada. The position of total closure of these records, as espoused by Statistics Canada and the Privacy Commissioner, provides no balance whatsoever.

The people of Canada have spoken. They wish to regain public access to post-1901 census records on the same basis as those up to and including 1901 have been, and continue to be, accessible. There should be no discrimination between records up to and including 1901 and those that follow.

We call upon the committee to support Bill S-12 without modification. We further call upon the government to accept Bill S-12 as a government bill. That concludes what I had originally intended to be my verbal submission. I would like to make a couple of comments. I found the reference by Mr. Sheridan to town hall meetings very interesting; this is something totally new. On December 15, 2000, Industry Minister Tobin announced that further broad-based discussions with all Canadians would take place in conjunction with the ongoing reviews of the Privacy Act and the Access to Information Act. Mr. Gaffield and I were told, face-to-face, on March 26, by members of the Access to Information Act Review Task Force, not to expect much to be said about it in their final report because it was not part of their mandate. They were never told that they should consider a review of the census or make recommendations regarding it.

I have tried numerous times to receive clarification from both Minister Tobin and Justice Minister McLellan on just when, where and with whom these discussions would take place. We have not received a response from either of them, and we have had no acknowledgement of our correspondence with them. We have put in access to information requests to both ministers for this information. Statistics Canada has stated that they need a further delay of 30 to 60 days in order to comply with my request.

The day before coming out here, I received a letter from the Minister of Justice's ATI officer stating that they needed a further 130 days. In my view, this is just another example of their great reluctance to have anything to do with our concerns regarding this census issue.

Senator Graham: It is rather interesting. One of the great benefits of being a member of this committee is that our main preoccupation for the past while has been the study of the health care delivery system in Canada. We have had witnesses come before us to put forward their views with great passion and tremendous strength and conviction. You have not disappointed us today in another area of interest.

I wonder, Mr. Gaffield, if you would be a willing participant, and if you think there would be benefit, in the town hall meetings as proposed by StatsCan?

Mr. Gaffield: I love to talk about the census, our history and so on. I would love to go to town hall meetings. My only concern is like the Privacy Commissioner's concern, that we know that town hall meetings can get wrapped up and twisted. In that environment, we can get away from the evidence and into opinion.

As an historian, you will not be surprised to know that I like to stay with the evidence. If the evidence were not so crystal clear and consistent across the board, I would say maybe, yes, let us debate it. When the expert panel was set up, there was the idea that there was this great debate to be had. We found that very little research had actually been done on this issue by the legal people of either the Privacy Commissioner or Statistics Canada. We quickly got into the realm of opinion rather than evidence. We went through the evidence. On an evidentiary basis, the Department of Justice feels confident on the legal side. We know what we need to know. I am always eager to hear what people have to say. However, at the end of the day, I think the evidence is more important than what kind of conversation can unfold in a discussion formula as led by whomever. I am sticking with the evidence as my primary base.

Senator Graham: Mr. Watts, you said in your eloquent testimony that Bill S-12 was well thought out, which is a tribute to Senator Milne, of course.

The Privacy Commissioner has mentioned a compromise that both he and Statistics Canada have publicly put forward. Do you see any merit in the compromise proposal?

Mr. Watts: It is difficult for me to make an informed comment. All I know about the compromise solution is what I read in Hansard when Mr. Radwanski appeared before the Senate in Committee of the Whole. I have concerns about that. I have expressed concerns to Senator Milne that that would only allow access by accredited people such as Mr. Gaffield, or someone associated with an established educational or research facility. As for myself, looking for information on my family, whom do I have as a peer to say that my research is legitimate? Researching the census records is not easy. You cannot do it by opening a book and saying, "There is my relative there; I am going to go there." People will sit in libraries and go through microfiche or books. They will do this for hours, weeks, days or months. It could take them years to find the individual they are looking for. They are not looking for someone who is not connected with them, for the most part. Possibly, professional researchers may be doing it on behalf of other people. However, I am interested in my ancestors. I am not interested in Mr. Radwanski's ancestors. I am not interested in Mr. Fellegi's ancestors. I am looking for my ancestors.

A significant amount of concern has been voiced on the part of those two individuals about what people might find out about someone. Families may not want the information released. It is the families that are looking for this information. It is my family that is looking for my ancestors. It is Senator Milne's family that is looking for her ancestors. We are not interested in these things for nefarious reasons. We want to know about the history of our families.

Mr. Gaffield: We did deliberate about this quite a bit. I will make two quick points. First, it is practically impossible to define a "family member." We know that. You gave the case, for example, of an adoption. In these cases, it can be simply unworkable. Historically, we know that the definition of a family has changed enormously over the years and my expectation is that it will continue to change. We see it changing almost before our eyes. We must be very careful in terms of accepting what we think is a compromise.

Second, as Mr. Watts was saying, we looked at the notion of vetting research projects. At the end of the day, we simply said that it is bureaucratically impossible, and as you implied, quite elitist. We are attempting to get all Canadians to study our history, to learn about ourselves and so on. Even though I have devoted my life to this, I certainly would not want to say that I as an expert have a right to study the past, but my children in school, and others, do not.

The 92-year rule has a pristine simplicity that has worked in the past, is working in other countries, and we simply see no reason to change it.

Senator LeBreton: You just used the word "elitist." Speaking from an ordinary Canadian's point of view, would you not concede that in this age of technology and people fearing for their privacy, that somehow or other people filling out census forms would feel compromised? A period of 92 years does seem a long way away for most people. Canadians may say, "Oh yeah, they are saying it is 92 years now, but someone will come along and change it 20 years." I am wondering if you do not see the potential problem of people really worrying about filling out census forms. As I said a moment ago, I would think twice about filling in a form someone throws under my door if I think I have no control. They say 92 years now, but I have no control over that information. Is it really confidential?

Mr. Gaffield: You are absolutely right: We all have concerns that people will tell us one thing and then do something else. The issue in the case of Statistics Canada and the National Archives is that because of their excellent practice over the years, they are not two institutions about which we are concerned. We are concerned about insurance companies, the banks, credit institutions. We are concerned about many people perhaps doing exactly what you say, lying or deceiving us.

If I go to a Web site, I think I am doing such and such. All of a sudden, I find out later that my computer is being examined in terms of marketing potential and so on. People are concerned about that. They are not concerned, happily, I would argue, about the census tradition. In the 19th century, people were far more worried about the census because there was not that confidence and tradition. There is simply no evidence that that feeling exists today.

If I thought this historic document would be threatened, I would be the last person in the world to say, "Go ahead." It would be much more important to me as a researcher to have the best document possible. However, I am absolutely convinced that the 92-year rule will ensure that most Canadians will be part of history. I think Canadians want to be part of our history. There is no evidence that they do not. Their only concern is they do not want the information used against them, and, happily, there is simply no example of Statistics Canada using that information against anyone, and the same applies to the National Archives. There is simply no example of people feeling that the National Archives will not do what they say they will do. Let us celebrate them, those two institutions. There are many other privacy issues that are pressing. Let us focus on them and let us not, in that sense, destroy our history by lumping this in with a set of issues with which it simply does not belong.

Senator LeBreton: People feel so confident about those two institutions you mentioned because they have a track record. If some particular event happens to change that, do you not think the public at large would question that good record?

Mr. Gaffield: Absolutely. That is why the expert panel spent so much time studying this. What was the legal situation? Will anyone be able to get up and say there was a promise? In fact, the laws are different. We had to study that. I think the evidence is crystal clear and consistent.

There was no promise. There was no new legal framework. In fact, it simply codified a system that had been in place and that was as meaningful in 1871 as in 1911 or 1921. It was crucial for us to know that.

You are absolutely right. No one can get up and say that with evidence. Thousands of people have been researching this, including the National Archivist, but no one has been able to find a shred of evidence. That is the key factor for me as a historian.

Mr. Watts: This has been a subject of discussion for the last 30 years or more. I have been involved in what I can do for the last four years. In those years, we have made every effort possible to publicize the situation and what we would like to see happen.

Where are the people that you say are so concerned about privacy? Where are their comments? We are not seeing any groundswell of people fighting against what we are trying to do. A handful of bureaucrats is doing it, and that is it.

Mr. Gaffield: They want more books.

The Chairman: I thank the two of you for appearing tonight.

Senators, I suggest that, in light of the hour and the fact that there is a considerable amount of conflicting evidence, we not make an attempt to reach a decision on this issue tonight, unless someone has a very simple solution, which I would be happy to entertain. Otherwise, I think we should delay it. Does anyone have a view?

Senator Cordy: I am wondering if, before we do make a decision, we could get the information from the Justice Department that Mr. Gaffield mentioned.

The Chairman: The clerk or the researcher will attempt to get us that information, and the full compromise proposal, too.

Senator Milne, when we receive those, I will give you plenty of warning. I will ensure that we do not have any discussions of which you are not a part.

With that, senators, we are adjourned until 11 o'clock tomorrow morning.

The committee adjourned.

Social Affairs, Science and Technology

Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology

Issue 24 - Evidence

Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology