Past Session:
37-1
37th Parliament,
1st Session
(January 29, 2001 - September 16, 2002)
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Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 24 - Evidence
OTTAWA, Wednesday, September 19, 2001
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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.
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Senator Michael Kirby (Chairman) in the Chair.
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[English]
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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The medical community, in particular, has strongly urged the
need to have census information.
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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.
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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.
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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.
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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:
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The census is intended to be a permanent record, and its schedules will be stored in the Archives of the Dominion.
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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.
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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.
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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:
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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?
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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:
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The census is intended to be a permanent record, and its schedules will be stored in the Archives of the Dominion.
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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.
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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.
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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.
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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?
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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.
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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.
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Senator Milne: Precisely.
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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?
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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.
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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?
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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.
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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.
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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.
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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?
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Senator Milne: It would be within the year before. The bill
states a year before.
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Senator LeBreton: A year before?
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Senator Milne: Before the 92 years elapses.
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Senator LeBreton: I am talking about a census actually taken
as of now.
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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?"
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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?
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Senator Milne: Yes, I have spoken in the Senate about when
Mr. Radwanski appeared before us with this compromise
solution.
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Senator Cordy: That was before my time.
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Senator Graham: Mr. Radwanski is not before your time.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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Senator Milne: I would assume that it would be in writing by
someone who can prove his or her descent from that individual.
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Senator Graham: Who can prove what?
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Senator Milne: Either the individual or the family can prove
the blood relationship.
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Senator Graham: I suggest to you, then, that the bill is lacking
and should have more clarity in that respect.
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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.
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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.
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I want to go back to your well-delivered speech of February 20
of this year at second reading.
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Senator Milne: I will let you quote it to me because I do not
have it here.
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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:
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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 -
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That is new information to me. Senator Lynch-Staunton is
indeed a genealogist.
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- is "the most commonly used tool in medical genetics."
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At another point in your speech, you say:
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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.
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Further on in your speech, you say:
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These records are of vital importance for Canadians not only for reasons pertaining to family history but also for medical, demographic and historic reasons.
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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.
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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.
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[Translation]
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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?
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[English]
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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.
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Senator LeBreton: What question on a census form would
produce that kind of information?
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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.
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Senator Pépin: What is the listing?
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Senator Milne: The listing is "imbecile."
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Senator LeBreton: I think that is a stretch.
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Senator Milne: Quite often, the early census takers did more
than just put a tick in the column. They wrote down information.
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Senator LeBreton: Not on present-day census forms.
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Senator Milne: In the present, you fill it in yourself.
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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."
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Senator LeBreton: That was then.
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Senator Milne: That was then.
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Senator LeBreton: Those questions are not on the census form
now, at least not the ones that I received.
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Senator Milne: Fortunately.
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Senator LeBreton: It asks how many toilets I have or how
many rooms in the house, not whether I am an idiot.
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The Chairman: Some of us would struggle with into which of
the last two categories we fall.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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In addition to creating an administrative nightmare, there would
be no guarantee that objectors' requests for exclusion could
effectively be accepted.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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?
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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.
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The Chairman: The minister is the Minister of Industry; is
that correct?
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Mr. Sheridan: That is correct.
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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.
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Mr. Sheridan: Not to second guess my minister -
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The Chairman: I am quite happy to second guess him. That is
okay.
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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.
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The Chairman: In part, that is what prompted me to ask the
question.
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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.
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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.
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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.
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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?
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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.
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There is a solution, and it is before us, but it is not the bill that
is before the Senate at this time.
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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.
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Senator LeBreton: And if they want to be traced.
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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.
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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.
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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.
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The Chairman: That was more of a comment than a question,
but is there anything you want to say in reply?
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Mr. Sheridan: I am in full agreement.
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[Translation]
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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.
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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.
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[English]
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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.
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[Translation]
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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.
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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.
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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.
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[English]
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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.
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When was the decision taken to have town hall meetings?
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Mr. Sheridan: The decision to proceed was taken about a
month ago.
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Senator Graham: Was this as a result of Bill S-12?
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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.
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Senator Graham: Bill S-12 had no relation to your town hall
meetings whatsoever?
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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.
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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?
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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.
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I think the bill is workable. I think the National Archives could
implement this bill if it were passed. Yes, we support the bill.
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However, the key thing is to clarify where the law of Canada
stands today and the status of access to the historical census
records.
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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."
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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.
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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.
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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.
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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?
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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.
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I think you suggested perhaps a new bill should be introduced
related to this observation.
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Mr. Radwanski: I will answer your second remark first.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Senator Graham: As I said at the beginning, Mr. Chairman, I
think Senator Milne should be congratulated -
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Mr. Radwanski: I agree.
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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.
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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?
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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.
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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.
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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?
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Mr. Sheridan: If we can find it.
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Senator Milne: She can tell you where she lived.
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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?
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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.
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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.
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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.
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The Chairman: We would be happy to debate that with you. I
have had some modest experience with that problem.
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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.
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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.
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In view of the lateness of the hour, I will ask each of you to be
as succinct as possible.
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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.
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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.
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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.
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There is simply no reason to change.
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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."
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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.
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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.
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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.
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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.
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The Chairman: I know you are on a roll, but can I ask you to
be somewhat more focused?
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Mr. Gaffield: My second point -
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The Chairman: That was only your first point?
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Mr. Gaffield: In terms of the Privacy Commissioner and why
this appeared on the radar screen, it is simply not an issue now.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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Mr. Gaffield: They want more books.
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The Chairman: I thank the two of you for appearing tonight.
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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?
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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.
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The Chairman: The clerk or the researcher will attempt to get
us that information, and the full compromise proposal, too.
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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.
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With that, senators, we are adjourned until 11 o'clock
tomorrow morning.
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The committee adjourned.
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