Observations reçues par le Groupe d'étude

Soumission complète

(Soumis en anglais seulement.)

Auteur : Lyndall H. Winters
Envoyé : le 2 avril 2001

Part One: Copy of the Author's Submission to the Expert Panel on Access to Historical Census Records

Part Two

SUBMISSION TO EXPERT PANEL ON ACCESS TO HSTORICAL CENSUS RECORDS

PART I - INTRODUCTION

Perhaps I should begin this submission by explaining who I am, providing a little of my background and why I am vitally interested in this matter of census records.

I am a retired Officer of the Royal Canadian Mounted Police (Superintendent), having served in that organisation for 35 plus years. Following retirement, I worked as an investigator with the Office of the Information Commissioner of Canada, investigating complaints from citizens who believed they were denied access to records they had requested under the Access to Information Act. I worked in that capacity for eight years, finally retiring in 1994. During those eight years, my work took me into many federal government departments in several provinces. Not only did I have a firm grounding in the Access to Information Act, the work required me to understand the provisions of the Privacy Act.

My interest in genealogy stems from work handed down to me by my mother who passed away in 1990 and I vowed to continue with her work and I have been working steadily in the field of genealogy for the past ten years. My intention is to identify my "family" and write a history of that family to leave for my children and grandchildren. I also gain a sense of fu1fillment in helping others find their "roots". Much of the success I have achieved to date is attributable to the access I have been privileged to have been given to census records in Canada and the U.S.A.

While still employed in the Office of the Information Commissioner of Canada, I had occasion to visit Statistics Canada and meet with their Access to Information Coordinator and her staff. I also had occasion to speak with an employee about the success I had been experiencing in finding "family" in census of Canada records that had been released to the National Archives. I then learned that this was about to come to an abrupt end because of an interpretation placed on the security provisions of the Statistics Act (Section 17). I learned that the 1901 Census of Canada would be the last one that researchers would see. It was explained to me that Section 17 was being interpreted in such a way that the Chief Statistician felt his hands were tied -because of the confidentiality provisions, the 1911 and subsequent census records would not be transferred to National Archives.

Because I was still employed with the Office of the Information Commissioner, I felt that I was not in a position to seek records from Statistics Canada and the National Archives which would explain the reason for this unfortunate decision by Statistics Canada.

Following my retirement from the Office of the Information Commissioner, I felt no longer constrained from delving into this issue. I submitted two formal requests under the Access to Information Act, one to Statistics Canada and the other to National Archives for records which would shed some light on what occurred. The records received from Statistics Canada were not at all helpful to me in understanding what transpired between National Archives and Statistics Canada however the records received from National Archives revealed a "Mexican Stand-off" between the Chief Statistician and the National Archivist over the issue of transfer of post 1901 census records to the National Archives.

Faced with the intransigency of Statistics Canada with respect to their decision to withhold transfer of post 1901 census records to National Archives, I turned to the Internet as a means of informing the genealogical community across Canada about the issues involved and suggested that if they were concerned over the loss of this valuable genealogical research tool, they should make their voices heard by Statistics Canada, by the Minister to whom that agency reports and to the Members of Parliament in their respective communities. This was followed up by several articles published in genealogical news magazines and news bulletins as wen as in the national and local media.
As a result of concerns raised by citizens from coast to coast, the Minister announced the creation of the Expert Panel of which you are all appointed members.

PART II - THE LEGAL ISSUES

Having worked in the Office of the Information Commissioner of Canada, I had become thoroughly familiar with the Access to Information Act and the Privacy Act. After reviewing letters from Statistics Canada explaining their rationale for their decision to withhold deposit of post 1901 census records, it became evident that they were relying solely upon legal advice from Department of Justice legal counsel. When I sought these legal opinions from Statistics Canada, I was infonned that they were exempted from disclosure pursuant to Section 23 of the Access to Information Act as "solicitor-client privilege". I then asked the department, in the interests of openness, to reconsider the decision to invoke Section 23. They did so, but effectively tied my hands by claiming crown copyright.

On reviewing the legal decisions obtained from Justice lawyers, it became evident they were focused on Section 17 of the Statistics Act and were interpreting it as precluding Statistics Canada from disclosing all census records from post 1901 onward. The legal opinions failed to take into cognizance the provisions of Section 2 of the Access to Information Act which identifies the right of access to government records and specifies in subsection (2) that the Act is intended

"... to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. "

It was clearly evident to me that the interpretation placed on Section 17 of the Statistics Act by the Department of Justice lawyers and by Statistics Canada, was disregarding Section 2 of the Access to Information Act in that the refusal to make public post 1901 census records was de facto replacing existing procedures for access to government information ( census records ) which had been made available to the public up to and including the 1901 decennial census. Furthermore their decision was in direct contradiction to subsection 2 (2) by limiting access to the type of government information (census records) that is ((was)) normally available to the general public.

After carefully reviewing Section 17 of the Statistics Act and the legislation and instructions which preceded it, it became evident to me that the intent and purpose of this Section was to protect the sanctity of the census records from the time the census taker knocked on the door until the expiration of the 92-year waiting period as defined in subsection 6 ( d) of the Privacy Regulations. Why else would our legislators have drafted and enacted into law subsection 8 (3) of the Privacy Act and subsection 6 ( d) of the Privacy Regulations? These Sections of the Privacy Act and Regulations were drafted and incorporated into legislation in 1983 with the full knowledge that Section 17 of the Statistics Act was only intended to protect census records from disclosure while they were still under the control of Statistics Canada and later when the microfilm records were on deposit with the National Archivist pending release to the general public after the expiration of the 92-year waiting period.
Having regard to the above, my intent was and is to challenge the decision of Statistics Canada in the Federal Court, after having first officially requested release of the 1911 census by way of an official request made to them under the Access to Information Act. Any move in that direction has been placed on hold pending the outcome of the study which your Panel has been asked to conduct. My contention is, therefore, that enabling legislation to permit Statistics Canada to retroactively amend Section 17 of the Statistics Act and thereby release post 1901 census records is redundant and unnecessary, in view of the fact that the authority already exists. Furthermore, I contend that any move to restrict the Canadian public from access to post 1901 census records would be in direct violation of Section 2 of the Access to Information Act.

A copy of the relevant Sections of the Statistics Act, the Access to Information Act, the Privacy Act and Regulations and the National Archives Act will be found attached as Appendix I to this submission.

PART III - THE PRIVACY COMMISSIONER'S STAND

Genealogists and historians from the length and breadth of Canada have been shocked and saddened to hear and read of the vociferous campaign led by the Privacy Commissioner of Canada for the restriction and outright destruction of historic census records held by Statistics Canada. I might add these same sentiments have been voiced by citizens of the United States of America, many of whom rely on these records to find their parents and grandparents who emigrated south of the border in search of a livelihood. Many of these family historians are actively engaged in the pursuit of genealogy and have been anxiously awaiting release of the 1911 census to determine the origin of their ancestors. I can personally attest to the need for access to such records, as I have many members of my own family who left Nova Scotia seeking employment in the factories of the Boston States. My task is made much easier in the U.S., as their census records are released a mere 72 years after the taking of each census. They are preparing now for the release in 2003 of their 1930 decennial census.

Those engaged in the task of genealogy are imbued with a deep feeling of sense of family. To the genealogist or family historian, this transcends the immediate core family and extends outward to include aunts and uncles and their descendants. This is why it is necessary to rely upon the free and unfettered access to historical census records. There is no other way of re- constructing one's extended family.

Not only are genealogists and historians left wondering why the Privacy Commissioner is advocating the complete closure and/or destruction of census records. The public at large wonders why the Office of the Privacy Commissioner of Canada would adopt such a position, given the fact that census data can only be released 92 years after the taking of a census. They point out that this is regulated by the Privacy Regulations, one of the written rules which guide the Privacy Commissioner in his work.

The national media has also commented on the actions of the Privacy Commissioner. The Globe and Mail, in their editorial of November 5, 1999 described his stand in opposing the release of historical census data as " (making)... the Privacy Commissioner look silly."

A brief word about the "pact" or "promise of confidentiality" made to the Canadian people at the time of the taking of the post 1901 census. An exhaustive search of legislation, parliamentary debates and newspapers has failed to establish that such a "pact" or "promise of confidentiality" ever occurred. This appears to be nothing more than a "spin" organized and perpetrated by Statistics Canada and accepted by the media and others as fact. What HAS appeared in the Statistics Act or Regulations made pursuant thereto, has been a section relating to the duties and obligations of commissioners and enumerators of census. The following is an excerpt from the Canada Gazette of Monday, May 21, 1906, which proclaimed '"Instructions to Commissioners and Enumerators ":

"26. Every officer or other person employed in any capacity on census work is required to keep inviolate the secrecy of the information gathered by the enumerators and entered in the schedules or forms. An enumerator is not permitted to show his schedules to any other person, nor to make or keep a copy of them, nor to answer any questions respecting their content, directly or indirectly; and the same obligation of secrecy is imposed to commissioners and other officers or employees of the outside service, as well as upon every officer, clerk or other employee of the Census and Statistics Offices at Ottawa. The facts and statistics of the census may not be used except for statistical compilation, and positive assurance should be given on this point if a fear is entertained by any person that they may be used for taxation or any other object. "

As Section 26 indicates, it is directed toward persons engaged in the process of preparing and processing the census and is NOT, as suggested by Statistics Canada and others, a promise of confidentiality to the Canadian people.

These same instructions to enumerators also emphasized that clear and legible records were to be kept because the census is a permanent record and would be stored and preserved in the Archives for future reference. This does not sound like an avowal of secrecy.

In his submission to the Panel, Mr .Phillips indicates he has ". ..tried to go beyond the positions of the historians and genealogists, to determine exactly what their interests are in the release of the census returns." He then stated "1 have been unable to get very far, largely because they have not made any attempt to justify their position. I know of few other debates, about personal information or any other subject, that have been quite so riddled with unsubstantiated assertions about mysterious "rights" - the "right" of genealogists to satisfy their curiosity about their origins, the "right" of historians to conduct research into other people's lives. "

These are incredible statements which would lead one to believe that Mr .Phillips and his research staff have simply not tried to determine or understand the issues involved. It would appear he has no sense of "family" as so many hundreds of thousands of Canadians do. Through the use of census records and the good graces of the Family History Centres run by the Church of Jesus Christ of Latter Day Saints (Mormons), I have been able to trace my family back to Hexham, South Shields and London, England. I have learned of master mariners, ordinary seamen, ship-wrights, carpenters and plain dirt farmers whose hard work helped found this country.

Mr .Phillips' observations were passed on at random to other genealogists through the medium of the internet with the suggestion that they provide their own reasons for dedicating their time to researching family ties. The responses from across Canada and two from the U.S.A. speak for themselves. They are included with this submission for the infonnation of the panel as Appendix II to this submission. If time is a concern, I would strongly suggest Panel members read the e-mail from Carol Hathaway, a lady who is stricken with Parkinson's disease and for whom genealogy is the most cherished thing in her life. A copy of these e-mail messages is being provided to Mr .Phillips in the hope that it will demonstrate to him why we do what we do.

Finally , I would like to touch upon the definition of Personal Information as it appears in the Privacy Act and how that has a bearing on the question of disclosure of census records after the proscribed 92-year waiting period. The Privacy Commissioner has been quoted as saying during a CBC radio program: " a great many people go to some pains in their wills for example, to ensure that their papers, their records, and their personal life story is kept private. A great deal of information that would be contained in records of that kind can also be found in census. So, to argue that merely dying should deprive somebody of their right to some control over their life story, I think goes too far." And again in that same interview with Michael Enright and Professor Bill Waiser: " Are people expected to give up all their rights to the control of their information after their death, yes or no?". (CBC Radio -This Morning -November 8, 1999)

What Mr. Phillips glosses over, or perhaps had forgotten, is that "personal information" as defined in the Privacy Act does not include information about an individual who has been dead for more than twenty years.

Let us make no mistake, a census record which is name specific, is personal information, but the government saw fit to make provision in the Privacy Regulations to permit such records to be deposited with the National Archivist for archival or historical purposes and released to the public once the period of 92 years has elapsed following the taking of the census. The government, in its wisdom saw fit to set this 92-year period so that it would be relatively consistent with the "20 years after death" rule and the "110 year after birth" rule which generally held sway in the Archival community.

In concluding this submission, I would beseech the Panel to cut through the rhetoric of the Privacy Commissioner who seems to be intent on seeking a total ban on the release of census records. To the genealogist, the professional historian and those ordinary folk who want to publish their family histories, the elimination of access to historical records would be tantamount to book burning -- a suppression of history.

Respectfully submitted,

Lyndall H. Winters

Appendix to Part One
Part Two

Observations reçues par le Groupe d'étude