THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, February 27, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9 a.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Standing Senate Committee on Indigenous Peoples. I will now ask committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Arnot: Good morning. I am Senator David Arnot from Saskatchewan. I live in Treaty 6 territory.
Senator McNair: Good morning. I’m John McNair from New Brunswick.
Senator Hartling: Nancy Hartling from New Brunswick, Mi’kma’ki.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
The Chair: Thank you.
Before I proceed, I want to note that the content of this meeting relates to Indian residential schools, which some may find distressing. There is support available for anyone requiring assistance at all times, free of charge, via the National Indian Residential School Crisis Line at 1-866-925-4419; and the Hope for Wellness Helpline at 1-855-242-3310, or at www.hopeforwellness.ca.
Now I want to give you some background about today. You may recall that last March, the Standing Senate Committee on Indigenous Peoples heard from the National Centre for Truth and Reconciliation and the Office of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools regarding their respective work. Based on that testimony, on July 19, the Standing Senate Committee on Indigenous Peoples issued an interim report entitled Honouring the Children Who Never Came Home: Truth, Education and Reconciliation. One of the recommendations made in that interim report included a commitment to hold a public hearing with governments, church entities and others who continue to withhold records about residential schools and associated sites.
During today’s meeting, we will continue to hear from witnesses on this topic. I would now like to introduce our witnesses. From the Office of the Information Commissioner of Canada, we welcome Caroline Maynard, Information Commissioner of Canada; and from the Office of the Privacy Commissioner of Canada, we welcome Philippe Dufresne, Privacy Commissioner of Canada. Wela’lin. Thank you both for joining us today.
Witnesses will provide opening remarks of approximately five minutes each, which will be followed by a question-and-answer session with the senators.
I will now invite Ms. Maynard to give her opening remarks.
[Translation]
Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada: Thank you for inviting me to this committee today.
I would first like to acknowledge that we are gathered today on the unceded, unsurrendered traditional territory of the Anishinabe Algonquin people, whose presence here reaches back to time immemorial.
Since this is my first appearance before your committee, I will give you an overview of the access to information system and explain my mandate as Canada’s Information Commissioner. To understand my mandate, it is important to recognize that I am an independent agent of Parliament whose role is defined under the Access to Information Act.
[English]
Part 1 of the act provides a right of access to information in accordance with the following principles: Government information should be made available to the public; the necessary exceptions to the right of access should be limited and specific; and decisions on the disclosure of government information should be reviewed independently of government.
Part 2 of the act sets out requirements for proactive publication of information. As Information Commissioner, I have no role under Part 2 of the act.
The Treasury Board of Canada Secretariat holds the overall responsibility of administering the act. That involves providing guidance and tools to the government institutions.
Access to information requests can be made for any records under the control of a government institution. About 260 institutions are subject to the act, including Crown-Indigenous Relations and Northern Affairs Canada, the Department of Justice, Library and Archives Canada and others who may have come up in the course of the testimony before your committee.
[Translation]
Each institution is responsible for responding to the access to information requests it receives. My role as Information Commissioner is to investigate complaints relating to those access requests, including on requests regarding records related to residential schools that are subject to the act. Typically, complaints are submitted to my office when requesters are not satisfied with the amount of time that it is taking for an institution to respond, or if they believe that they have not received all of the information to which they are entitled.
[English]
I understand that your committee is considering records related to residential schools that have not yet been transferred to the National Centre for Truth and Reconciliation. It is important to note that I am not involved in that transfer process, nor do I oversee it, as it is not within my jurisdiction. In addition, the courts have determined that certain records related to residential schools are not under the control of the federal government for the purposes of the act. This means they cannot be requested under the Access to Information Act, and my office does not have the authority to access those records.
[Translation]
Prior to amendments to the act in 2019, my powers were limited to making recommendations to institutions in respect of well-founded complaints. Once the amendments came into force, I was granted order-making powers.
[English]
At the conclusion of an investigation, I have the power to issue any order against an institution, including the disclosure of information to requesters. My orders are legally binding. When they receive an order, institutions must implement it, unless they apply to the Federal Court for a review.
Complaints are investigated in private, and the act limits the disclosure of information about investigations. However, at the conclusion of my investigations, I may publish final reports, particularly when I deem them to be of value in providing guidance to institutions, requesters or the public. For example, I may publish final reports that clarify the application of a provision of the act, touch upon recent court decisions or developments in access law or when investigations result in an order.
As an agent of Parliament, I also report annually to Parliament on my activities, and I can issue special reports to Parliament with respect to important issues that fall within my jurisdiction.
Ultimately, my mandate is to maximize compliance with the Access to Information Act, using the full range of tools and powers at my disposal.
I am happy to answer any questions that you may have. Thank you.
The Chair: Thank you for that, Ms. Maynard. I will now invite Mr. Dufresne to give his opening remarks.
[Translation]
Philippe Dufresne, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Thank you, Mr. Chair and members of the committee, for this invitation to appear as part of your examination of the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples.
I would like to acknowledge that the land on which we are gathered today is part of the traditional unceded territory of the Algonquin Anishinabe people.
Let me begin by discussing my role. The Office of the Privacy Commissioner of Canada is mandated to oversee compliance with both the Privacy Act, which applies to federal institutions, and the Personal Information Protection and Electronic Documents Act, Canada’s federal private-sector privacy law.
[English]
The Privacy Act sets out the circumstances under which personal information may be disclosed and to whom. In general, federal institutions may only disclose personal information with the consent of the individual. However, section 8(2) of the Privacy Act specifies how federal public bodies can disclose personal information without the consent of the person to whom the information relates.
Several provisions are potentially relevant to the disclosure of personal information relating to Indigenous peoples, including section 8(2)(k) which authorizes federal public bodies to disclose personal information for specific purposes to entities, including Aboriginal governments, associations of Aboriginal people or Indian bands for the purpose of researching or validating Indigenous claims, disputes or grievances. Section 8(2)(f) allows a government institution to disclose personal information to specific types of entities for the purpose of administering or enforcing a law or carrying out a lawful investigation as long as there is an agreement or arrangement in place. The governing entities of several First Nations are identified as potential recipients under that provision.
Other provisions are broader in nature, such as section 8(2)(j) which allows for disclosure to any person or body for research or statistical purposes in certain circumstances, and section 8(2)(m) which allows for disclosure for any purpose where — in the opinion of the head of the institution — the public interest in the disclosure clearly outweighs any invasion of privacy that could result, or where the disclosure would clearly benefit the individual to whom the information relates. The Privacy Act also allows for the disclosure of the personal information of an individual who has been dead for more than 20 years.
[Translation]
In relation to residential school records, I will note that in January 2022, my office received a notification of an 8(2)(m) disclosure that was to be made by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) to the National Centre for Truth and Reconciliation (NCTR). In that case, my office was satisfied that the department had carefully weighed the factors and that their justification analysis was comprehensive and thorough.
I will conclude with a few remarks on the need to modernize our privacy laws.
[English]
Recognizing the uniqueness of Indigenous interests in relation to personal information, the federal Department of Justice has been engaging with governments and organizations representing the distinct perspectives of First Nations, Inuit and Métis in the context of modernizing the Privacy Act. Among feedback received, in its recent Privacy Act Modernization: Report on 2022 Engagement with Indigenous Partners, the Department of Justice outlined that Indigenous partners have emphasized that disclosure provisions and associated definitions in the Privacy Act should be expanded, and that the act should acknowledge the diversity of Indigenous governments in Canada and the various legal regimes under which they operate.
Indigenous partners have also highlighted the need for Indigenous sovereignty over their data. This would require Indigenous peoples to be directly involved in the decision-making process related to how their information is used and disclosed.
I am encouraged by the engagement that the department has had with Indigenous peoples, and I fully support their commitment to further engagement on potential changes to the Privacy Act. Issues affecting Indigenous peoples will need to be carefully considered when the federal government moves forward with much-needed modernization of public sector privacy legislation. With that, I would be pleased to answer your questions.
The Chair: Thank you, Mr. Dufresne. We will now open the floor to questions from senators. I will start by asking the first question, and then I will go to the deputy chair for a question after that.
This question is for Ms. Maynard. In the Treasury Board’s Access to Information Review Report to Parliament, it documented significant problems that Indigenous peoples have in obtaining information from departments under the Access to Information Act. Could you please describe the challenges that Indigenous peoples may face with respect to obtaining information, particularly related to a family member who has a missing relative, and what recommendations would you have to improve access to federal records for Indigenous peoples?
Ms. Maynard: Thank you for the question. The review of the government has a specific chapter on consultations that they have had with Indigenous organizations and people. I highly recommend that you read the report, but the challenges that are being identified are not, unfortunately, only by Indigenous people. There are delays in receiving requests for information, difficulty communicating with the Access to Information and Privacy, or ATIP, units and inconsistency in applications and exemptions — the difficulty here is that the information that they are requesting is very sensitive in nature and needed in a timely manner, and our access to information system is now struggling to respond to the demand.
What I would recommend is informal disclosure of information — a system by which Indigenous people could access information about their family, their own information or any information that they need in order to pursue the reconciliation process. Right now, as I said, the access to information system is so overwhelmed with access requests. ATIP units are not resourced appropriately, so we need to find a different way — outside of the access system — for that information to be provided.
Senator Arnot: Thank you, witnesses. This committee has heard a number of issues surrounding access to information difficulties: partial records, poor record-keeping and gaps in the system. We have heard difficulties about language barriers and technological barriers. Several witnesses have told us that data is slow, labour-intensive and expensive to process. We have heard from Indigenous witnesses about a sea of frustration in dealing with these barriers.
We have identified a number of systemic barriers to the privacy legislation. You’re experts in this field. You have insight into each of these barriers. With your significant expertise, I’m wondering what you can tell us about the systemic solutions.
I’m going to be specific here and drill down, particularly for Mr. Dufresne, but it’s also for both witnesses. When the committee does its final report, what fundamental process changes, fundamental legislative changes or fundamental investments would remove the systemic barriers, and put information into the hands of residential school survivors and their families? How do you reduce or eliminate these barriers? They’ve been well identified.
You’ve already given some suggestions. I don’t expect you to answer the question in full today, but I would really like to hear your expertise, because I know that both of your organizations have done a lot of consulting with Indigenous people to create a transparent and accessible process. I think that if we have your ideas about the legislative changes that need to be made, as well as the process changes that need to be made and the investments that could be made to accelerate a solution, it would be very helpful. Thank you.
Mr. Dufresne: Perhaps I can start, Senator Arnot. Thank you for the question.
I think there are a number of elements. You mentioned the resources, and I think that is obviously an important element in terms of ensuring that my office — and, I’m sure, Commissioner Maynard’s office — has the ability and the resources to respond quickly, and to do more proactive work and more engagement with Indigenous peoples, and also with government institutions, so that we can prevent situations, educate and put best practices in place. That is an important element. Certainly, my office does not have what it needs at this stage in terms of resources.
Modernization of the Privacy Act is important; I commend to this committee’s review the Department of Justice’s report and recent consultation with Indigenous partners. I have highlighted a number of things — potentially, a purpose clause highlighting the objective of reconciliation with Indigenous peoples as being an interpretive element of the act. That is certainly something that I can do, but having it in the preamble certainly reinforces that.
As for terminology in terms of disclosure, there may need to be updates in terms of with whom and for what purposes, as well as privacy mechanisms to allow exchanges and engagement with my office and Indigenous organizations. For privacy impact assessments, I have been calling for this as a legal obligation in a lot of cases. It brings that rigour and discipline.
Necessity and proportionality as an element of interpretation for the Privacy Act frames the fundamental right and the public interest in the appropriate way. You heard Commissioner Maynard say that she has order-making power. I do not have that at this time under privacy legislation, and this would be something that is important. I would leave it at that for the moment. Thank you.
Ms. Maynard: I agree with everything that Mr. Dufresne has said. With respect to my office, we are usually not dealing with privacy information or personal information; it’s mainly information that the government holds with respect to Indigenous people, but not particularly for them. The one thing I have found is that our legislation does not have a public interest override, and the government often forgets that, in this particular case, for example, the Minister of Justice or the Minister of Crown-Indigenous Relations has promised to be more open with respect to information. We’re still struggling in that area. There is definitely a need for more legal opinions to be shared even though there is a protection. There is a discretion in the act, but I can tell you it’s never been used. I always encourage institutions to be more open, especially if it’s a very historical type of information. There should be some discretion being used, but it’s not.
Those conversations with these ministers should definitely continue, and I will do that.
Senator Arnot: I guess what I’d like is if you could put the answers to my questions in writing. It’s so very helpful because it gets to the core of it. I really like the idea that you’re highlighting the need to frame this under the rubric of reconciliation because this is so pertinent to reconciliation, and an impediment to reconciliation in its current form.
Anything you can put in writing would be very helpful to us as we make recommendations. Thank you.
Senator Coyle: Senator Arnot really got to the nub of the issue. I thank him for his question regarding systemic solutions, and for your very helpful answers. Yes, if you have more to say in writing, we would look forward to that and very much welcome that. Then, we can act on that once we receive it. Thank you.
Thank you to both of the commissioners for being with us today, and for the work that you do and the work of your important teams. I understand how stretched you must be, particularly in this era where we all want to know everything right away, and where it’s important for people to know what they need to know, which is why we’re here today.
Commissioner Maynard, you mentioned that you’re involved with the investigation of complaints, including those related to residential schools. You also mentioned, though, that you are not involved in the process of, as I understand it, transferring information to the National Centre for Truth and Reconciliation. Could you do two things for us?
First, tell us a little bit about the volume of complaints, as well as the nature of the types of complaints that you’re receiving; then, once you’ve dealt with those complaints, if there is information to be transferred that’s outside of your jurisdiction, what’s the next step?
Ms. Maynard: I don’t receive a lot of complaints with respect to this — but they’re very specific, and usually they’re about timelines. People are asking for information, but not receiving it within a reasonable time.
Currently, I have four active investigations — two about timelines and two about exemptions. That’s another issue: The culture in the government is often to protect information and not freely give the information, including, like I said earlier, older legal opinions that have been protected, and that we are trying to get the government to share with Indigenous people.
I can only order or recommend disclosure of information, but the information is within the institutions. I don’t have any authority to actually disclose the information. I have access to it, and I can tell the institutions whether I agree or not with the exemptions that have been used, or whether I feel like this question should be used, or, if timelines are being used unreasonably, I can order — right now — disclosure within a timeline, which we do. But the information is still held by the institutions, and they are responsible for doing the transferring or the disclosing.
Senator Coyle: But you can order them to transfer it?
Ms. Maynard: I can order them to disclose it to the complainants who made the request.
Senator Coyle: Thank you.
The Chair: I will return to you, Ms. Maynard, for your suggestion about informal access to records. What process do you know about where Indigenous peoples can access records in this fashion, or what do you envision?
Ms. Maynard: I am aware that there are some agreements with the departments in terms of accessing information about treaties, but I don’t think that it’s working very well. Even with those types of informal disclosure, there is a lot of frustration. The records are still held by the government, so there is also a trust issue. When you see what kind of information is being disclosed and you see the redactions, the first thing that comes to mind is this: What are they hiding? Is there something I should get?
There should definitely be a mediation with respect to that, or some kind of better understanding of what type of information is within the records held by the government — under the control of the government — so that people have confidence that what they’re receiving is the full sum or volume of information that they’re entitled to.
The Chair: Thank you for that.
Senator Hartling: Thank you to the witnesses for being here. I’m just going to ask a very basic question because maybe there are people listening who don’t know this. Can you tell me when the Privacy Act came into force and the motivation around that? Has it ever been changed or modernized? A lot of things have been changed. I am only imagining that if I were an Indigenous person trying to get information, all of this language would be kind of complex. Can you give us a little history on that, please?
Mr. Dufresne: Sure. The Privacy Act was adopted in the early 1980s — I think it was 1983. It’s old legislation. It needs to be modernized certainly in light of intervening circumstances, including the need for reconciliation but also technological advances. It really focuses on the individual rights, the individual choices and the individual identity.
One of the comments that has come from the Department of Justice consultation with Indigenous partners has to do with the following: What about collective rights, and should that figure into the interpretation of the privacy legislation? Right now, it doesn’t. The legislation is focused on individual information. So there may be opportunities to consider this: How does that fit? How do those collective rights fit? Maybe it’s through interpretation principles in terms of reconciliation. Maybe it’s through other types of definitions.
But a part of privacy legislation is also, again, about ensuring that you’re protecting personal information, but not at the expense of the public interest. Section 8(2)(m) of the Privacy Act, for instance, recognizes that and says, “If there is a sufficiently important public interest, then the head of the institution can disclose that information if that clearly outweighs the invasion of privacy.”
There may be potential for more education and more awareness about that, and identifying those public interests, including the importance of reconciliation. But certainly, privacy legislation in the public sector needs to be modernized, and I welcome the efforts that the Department of Justice has been doing in this, including those engagements and consultation, but we need to see that action translated in Parliament ultimately with a bill.
Senator Hartling: That’s helpful. Thank you very much.
The Chair: Ms. Maynard, you referred to old legal opinions that you are hoping could be disclosed. Are you able to provide more information?
Ms. Maynard: Unfortunately, I cannot disclose any information that we see during our investigation. Our investigations are confidential, but I can tell you that we have had discussions with the ministers involved, and they’ve promised — even in press conferences — that they will be more open with respect to this type of information for reconciliation purposes. Unfortunately, I don’t see — like Mr. Dufresne said, sometimes there is a lot of goodwill, but the actions are not being shown. We’re still struggling sometimes with respect to that type of information.
The Chair: Thank you.
Senator Coyle: I just want to pick up on your last words there, Commissioner Maynard, and also something I believe I heard you say earlier. You said that in spite of the goodwill, actions may not match that level of goodwill.
Earlier, I believe you spoke about some of the stumbling blocks which tend to be — you called it the government. I assume you mean the people working in the public service who are guarding or are protective of the information that is in their control.
Can either of you — well, it’s probably more you, Commissioner Maynard — speak about anything that needs to be done, not just regulatory but also culture change, in order to bring on board, empower and encourage those front-facing, public-facing people regarding the kinds of clients we’re looking at, who are looking for this information, as it is very important for Indigenous people, communities and organizations to get this.
What do you know, or what would you suggest that could be done, if you are in a position to do that, to help shift that culture from one of protection — obviously, you need to have some degree of protection; I’m sure our Privacy Commissioner can speak to that — to one of willingness to be open and in dialogue, and to find creative ways to get information that people desperately need?
Ms. Maynard: As you know, culture change is a big endeavour. The best legislation cannot work if the government does not believe in it. For instance, our Access to Information Act was adopted in 1983, with the view that it would allow access to information with limited exceptions and exclusions being adopted. But I think the way it was implemented was often the opposite. People look at the information and think, “What is it that I cannot disclose?” instead of “What is it that should be disclosed?”
We definitely need good government leaders who believe in an open government, and provide guidance and clear objectives within their department. I’ve seen departments where it works. When the leaders of departments send clear directions, and give the power to their ATIP unit for using discretion or limiting exclusions, disclosures happen. But we need that across the board, and we don’t see that consistency. It definitely comes from the top, and if the leaders believe in openness and transparency, with more proactive disclosure done on their website, we shouldn’t need to have access to it. An access to information request should be the last resort for obtaining information; the information should be provided to Canadians. It is Canadians’ information.
Senator Coyle: Thank you. That was very helpful.
The Chair: The floor is still open if anyone has further questions. If not, the time for this panel is now complete. I wish to again thank our witnesses for joining us today. If you wish to make any subsequent submissions, please send them by email to our clerk within seven days.
We will now turn to our second panel. Our next witness is joining us via video conference. We welcome Lorri Thacyk, Vice-President, Communications and Public Relations, eHealth Saskatchewan, Government of Saskatchewan. Wela’lin for joining us today. I will now invite Ms. Thacyk to give her opening remarks of five minutes, which will be followed by a question-and-answer session with the senators.
Lorri Thacyk, Vice-President, Communications and Public Relations, eHealth Saskatchewan, Government of Saskatchewan: Good morning, members of the committee. I am appearing today from Treaty 4 territory — the traditional territory of the Cree, Saulteaux, Dakota, Lakota and Nakota peoples, and the traditional homeland of the Métis.
The Health Registries and Vital Statistics areas fall under my portfolio. Unfortunately, the Registrar of Vital Statistics was unable to attend today.
In Saskatchewan, under the direction of the Minister of Health and eHealth Saskatchewan, the Vital Statistics Registrar is responsible for administering and enforcing the legislation and operation of the registry, and for the protection of Vital Statistics records. All vital event records, including death records, are considered permanent records.
Our organization appreciates the important work of the commission and this committee in bringing profile to the issue of children who died in care while attending residential schools. We understand this is an important component of reconciliation.
As noted in our earlier submission, in Saskatchewan, deaths were not recorded in a way that would identify an individual as residing at a residential school at the time of their death.
In January 2014, the Truth and Reconciliation Commission made a request to Saskatchewan Vital Statistics to provide any relevant documentation concerning deaths of Aboriginal children in order to assist in the Missing Children Project. At the time that request was made, Vital Statistics identified that only the records from 1898 to 1943 would be eligible to disclose under the legislative authority, as those records were considered genealogical. In other words, it was 70 years from the calendar year in which the death occurred. Records between 1944 to the present were protected records only releasable to eligible individuals as per the Vital Statistics Act, 2009, and the commission was not eligible.
In response to the 2014 request, a large project was undertaken whereby six staff manually reviewed death records over the course of eight months. They reviewed 225,000 death records. In early 2015, Saskatchewan Vital Statistics provided death information for approximately 19,000 children between 1898 up to and including 1943. The information included surname, given names, date of death, place of death, age at time of death, sex and the registration number of the record. Again, these records didn’t specifically identify children who died in care at residential schools. It was all children across Saskatchewan who died between 1898 up to and including 1943. In 2015, a request was also received to include cause of death; however, there was no legislative authority to provide that information.
Our understanding at the time when we helped inform the Saskatchewan submission to this committee was that the National Centre for Truth and Reconciliation was not able to provide a list of children who were in Saskatchewan residential schools. Therefore, providing additional records would require eHealth Saskatchewan to release all child deaths from 1944 to the date of the last Saskatchewan residential school closure. This presents sensitive privacy concerns, as the majority of those records are still protected records.
In the lead-up to this appearance, eHealth Saskatchewan sought additional expertise on the matter of releasing records. The Office of the Saskatchewan Information and Privacy Commissioner, while not having oversight of the Vital Statistics Act, 2009, flagged that a release of all child death records would not be in alignment with the principles of “need-to-know” and data minimization, and it could result in a privacy breach. Legal experts noted similar concerns.
A release of all child death records goes beyond the scope of what the National Centre for Truth and Reconciliation is requesting. The Vital Statistics Act, 2009 was amended in 2016 to include a discretionary clause to provide the Minister of Health, subject to the approval of the Lieutenant Governor-in-Council, the authority to disclose vital statistics information under unique circumstances, such as the Truth and Reconciliation Commission request. While the minister has the discretion, in order to align with privacy principles, more information would be required from the National Centre for Truth and Reconciliation to minimize the data provided — for example, the first and last names, dates of birth or death, and the parents’ names of those children to narrow the search parameters.
Following the appearance of the Saskatchewan Chief Coroner at this committee on February 7 of this year, eHealth Saskatchewan was made aware of the listing of student names by residential school that resides on the National Centre for Truth and Reconciliation website. We have started initial work to review those lists.
Saskatchewan Vital Statistics is willing to release additional genealogical records, similar to the approach taken with the Missing Children Project. This would allow for the release of all child death records 70 years or older, meaning records from 1944 up to and including 1954. This effort will require additional resources to conduct a manual search of about 70,000 records and transpose them into spreadsheets. These records would not be able to identify children who died in the care of residential schools.
Saskatchewan Vital Statistics would be open to having a discussion regarding the potential scope and process for releasing additional protected records, if we were able to narrow the search parameters and could ensure privacy of records for those who do not fall into the scope of the information being sought. This concludes my statement.
The Chair: Thank you, Ms. Thacyk. We’ll now move on to questions from senators.
Senator Arnot: Thank you, Ms. Thacyk, for coming today and advising us on this issue. We’ve heard a lot in this committee about systemic barriers. You have touched on some of those systemic barriers in your opening statement.
I have two questions for you. First, do you believe it is possible for your organization and other Saskatchewan agencies, including Vital Statistics, to work across legislative mandates or other barriers to partner with the National Centre for Truth and Reconciliation in order to find a more detailed and complete set of records? In other words, to get at the truth.
The fundamental goal here is reconciliation, and there are these systemic barriers in place. What systemic solutions do you propose — that we could incorporate in our report — that would advance the cause to eliminate or reduce the barriers that exist on residential school records?
Ms. Thacyk: I would say that Saskatchewan is certainly open to collaboration and further discussion with the committee about the release of information. The legislation, as it stands now, is quite explicit — similar to what the previous witnesses had stated — around the protection of information. We are bound by those parameters.
Senator Arnot: What changes in legislation would you recommend to eliminate those barriers? In other words, the legislation is a barrier. It needs to be amended in order to reach the goal of finding the truth and promoting reconciliation, which is really the fundamental reason that this process is in place. I’m just wondering what legislative changes you think would be helpful to you and your organization so that you can comply with the ethos behind reconciliation.
Ms. Thacyk: I think the bigger issue for us in Saskatchewan, regardless of how the legislation is written, is the inability to explicitly identify which children may have been in the care of residential schools when they died. Our death records simply do not record the information in that manner. Regardless of how legislation may be amended or potentially amended, the bigger factor is being able to explicitly identify those children.
The Chair: Ms. Thacyk, you mentioned earlier that there is a discretionary clause in Saskatchewan’s privacy legislation related to unique circumstances. Can you confirm that the minister or department is working with the National Centre for Truth and Reconciliation to use this discretionary clause and expedite the identification and transfer of all outstanding records?
Ms. Thacyk: As I mentioned in my statement, we would certainly be willing to have those discussions to help narrow the parameters. There would be the overriding concern of privacy, as I mentioned in my statement, in the carte blanche release of all records up to the date of the last residential school closure, but we’re certainly willing to have those discussions if we receive additional information to help tighten those parameters so that we are not disclosing records that are protected and private to others.
The Chair: Thank you.
Senator Coyle: Thank you very much for being with us today, and for providing us with this information. We are all trying to figure out what it would take to open up the records — as you have said, there are certain restrictions around them — yet match it up with records of the children who were at the schools so that there could be some way of linking your information with that information so that those records could be released and not infringe on the privacy of others. I would like to understand that a little bit. I’m not a technical expert on information, particularly health records. I would like to understand how that could work. How would you see that possibly working?
Second, I have a question about that large project that you had described — looking at the 225,000 death records during that particular period, and identifying the death records of 19,000 children. You did say that place of death was one of the things identified in the records. At another point, you said that you don’t have records of whether children were in care. But if the place of death were, for instance, a residential school, would that be identified in those records? Those are my two questions.
Ms. Thacyk: I will start with the last one. I may have to ask you to repeat the first one. In answering the last question, the place of death would be recorded as the community location. In some instances, it might be a hospital, but most likely it’s a community location. It would not be listed as a specific school.
Senator Coyle: So it’s a community. For instance, if a young person died in a residential school, it might be listed as a community that’s in close proximity or within which that school was located?
Ms. Thacyk: That’s my understanding, yes.
Senator Coyle: Okay. The first question, I guess, is just trying to get a little more detail in coming to understand — given this imperative of reconciliation, as my colleague Senator Arnot has said, and the absolute need of First Nations communities and families to find records of children who had died. We know that the National Centre for Truth and Reconciliation has data on many residential school students. Is there some way to bring together existing data on residential school students and the death records that you would have in order to somehow match those without in any way infringing on the privacy of your general database? It would just be trying to select for that match between your death records and those lists of children who attended residential schools in Saskatchewan.
Ms. Thacyk: Certainly, I think more information is better, and if we’re provided with more information so that we can do an easier cross-reference or a match, as you’re describing, that is certainly something we can entertain. The Vital Statistics Act is quite specific on who can receive information. It’s limited to the spouse of an individual, the parent of an individual, an adult child of an individual or someone who is authorized by those people or a legal representative of the estate of the person.
Certainly, if we can narrow the scope, there is discretion of the minister. It would have to go through a bit of a process — an order-in-council process — that involves the authorization of the Lieutenant Governor. But that’s something we would entertain if we were able to narrow the scope.
Senator Coyle: I have two subsequent questions. If the nation of which the individual child was a member is asking for that information, I am assuming that would be the kind of request that you would entertain?
Ms. Thacyk: Possibly. I would have to check that with someone who has more legal expertise than I do on the ins and outs of the act.
Senator Coyle: You may have said this, but I’m not sure I caught it. Would cause of death also be included in the records that you have? Could that be shared?
Ms. Thacyk: It would be part of the record, but that is not able to be shared due to the way the act is written.
Senator Coyle: Under any circumstances?
Ms. Thacyk: There was a request in 2015 by the committee, and the committee was not deemed eligible to receive that information. If it were an authorized individual, I believe that would be allowable.
Senator Coyle: Could you dig a little deeper for us on what an authorized individual means?
Ms. Thacyk: That would be what I mentioned briefly before. Under the act, it’s an individual who is deemed eligible to receive information of a protected record. Again, that would be the spouse, the parent, an adult child or someone designated by those people or the personal representative of the estate of one of those people.
Senator Coyle: Thank you.
Senator Arnot: I have a follow-up question, Ms. Thacyk, in response to the questions that Senator Coyle asked. You indicated a willingness to have a lot of discussions to basically facilitate reconciliation. Do you think there is a need for a new agreement, knowing the deficits and barriers that exist, as Senator Coyle has stated, in correlating attendance at residential schools with existing Vital Statistics records in Saskatchewan? Do you think there is a need for a Canada-wide database that would assist or automate this database to comply with legislation on a larger scale?
Ms. Thacyk: A Canada-wide database would probably be very helpful. As to whether I would personally recommend that on behalf of the Government of Saskatchewan, that’s not really in my position or authority to make that recommendation. But, certainly, anything that gives people answers to their questions would not be a bad thing.
Senator Arnot: I’m asking for your personal opinion. You have been at this for a while. You know the issues; you see the barriers. I’m not asking you to speak on behalf of the Government of Saskatchewan, but from your own personal experience. I am sure you have encountered frustration in dealing with these issues — a natural frustration that would occur for anyone facing these kinds of barriers.
Ms. Thacyk: No, I can appreciate the frustration that people have. We do have to work under the authorities and the legislation that govern us.
The Chair: If there are no further questions, the time for this panel is now complete.
I wish to again thank Ms. Thacyk for joining us today. If you wish to make any subsequent submissions, please submit them by email to our clerk within seven days.
(The committee adjourned.)