Following is a critique of a document purported to be a ‘compromise solution’ by Statistics Canada, Privacy Commissioner George Radwanski, and others as recorded in Hansard for debates of the Senate in 2000 and 2001. The critique is done in sections. Click the link following each section to go to the critique of that section. Comments regarding those sections enclosed in square brackets, i.e. [ ] are mine and do not form part of the original document. Click 'Back' to return. |
Gordon A. Watts
12 November 2001
A Balanced Proposal to Provide Access to Historical Census Records
while Maintaining the Originally Promised Privacy Protection
Maintain the confidentiality protection originally promised to respondents (legal protection of confidentiality under protection of the Statistics Ace), while providing reasonable access to historical records for two purposes: for genealogical research about one’s own family; and for historical research.
2. Legal prerequisite:
The mandate of Statistics Canada, as defined by the Statistics Act, will be extended to include support for genealogical and historical research using Census files 92 years after the reference year. Such an amendment would: enable Statistics Canada to support genealogical and historical research, would restrict public disclosure to basic information about identifiable individuals (i.e. names, ages, address, marital status and birthplace); would further restrict such release to members of one’s own family (in case of genealogical research) and to subjects of (peer reviewed) historical research; and would provide the full legal sanctions of the Statistics Act should these confidentiality arrangements be violated.
3. Operating principles:
Genealogical research: under the Statistics Act (amended), access to historical census records will be provided to individuals wishing to conduct genealogical research on their own families (defined as direct descendants of a direct ancestor). They will be subject to the penalties of the Statistics Act should they disclose information about people other than members of their respective families. As a condition of access they will sign a legally valid undertaking to this effect.
Historical research: access under the Statistics Act will be provided to researchers whose proposed research subject and methodology passes a peer review, administered by the Social Sciences and Humanities Research Council. In order to gain access, they will be required to sign an undertaking that any identifiable information to be released by them as a result of their research will relate only to the subject(s) of their approved research.
Enforcement: access to historical census records, for either of the two purposes described above, will be extended to individuals as if they were deemed employees of Statistics Canada. They will therefore be subject to penalties should they violate their undertaking with respect to the confidentiality protections under the (amended) Statistics Act. Enforcement will be complaint based.
4. Operational arrangements:
Access to the historical Census records will be managed by the National Archives as agent for Statistics Canada, and hence operating under the legal mandate of the (amended) Statistics Act.
Individuals conducting research on their direct ancestors will sign a Consent Agreement of Access and Use form. This form will set out both the conditions of access and definitions of what an individual may make public about members of his or her own family. The agreement will also set out the penalties for disclosure of unauthorized information.
Access to the historical Census files provided to authorized persons will be unrestricted but only basic information – names, ages, address, marital status and birthplace – may be removed from the Census records and made public.
An individual or organization wishing to conduct genealogical research on behalf of a person or a family will have to obtain authorization from the person/family concerned. Such an individual or organization will be subject to all the conditions, restrictions, and penalties that would have applied to the person about whose family the genealogical research would be conducted.
Historians will be given access to historical Census information on the basis of a peer review. The peer review process will be managed and governed by the Social Sciences and Humanities Research Council. The panel will identify the person or persons about whom identifiable historical Census information may be released as part of the results to be published by the researcher. As in the case of individuals and genealogists, historians will only be allowed to release basic census information.
[Summary: While not specifically stated in this document, the highly restrictive terms and conditions it details would indicate that access to Post-1901 Census records would be available only in federal government offices, and under the supervision of a government official. This would seriously restrict access for those living in rural or remote locations. Even in urban areas, federal government offices are few and far between. This fact alone seriously inhibits, and discriminates against, the ability of the greater part of Canada’s population to access these records. It further discriminates against those who may currently reside in another country but seek information on their ancestral roots in Canada.
To set up a government system whereby all Canadians are given reasonably equal access to these records would be extremely costly. Office space, storage space for records in each location, microform and printed format copies of the records themselves, staff and supervision, all have costs associated with them. Private institutions and the users of these records, rather than the taxpayers of Canada, currently cover a large part of these costs – for records up to and including those of 1901 at least.
Records for Census up to and including those of 1901 are currently available from the National Archives through inter-library loan, or for purchase in microform or printed format by libraries, genealogical or historical societies, educational institutions or individuals. The restrictions of this document would not allow that for Census records after 1901.
We find it difficult to support the so-called ‘compromise solution’. We do not find it much of a ‘compromise’ at all, for the stated reasons. We view the current position of Statistics Canada regarding public access to Historic Census records to be obstructive, and based upon faulty legal opinions and misinterpretation of legislation dating back as far as 1905.
The authors of some of those legal opinions suggested that minor changes to legislation or to departmental policy might allow the public access sought, and offered to assist in bringing about those changes. Statistics Canada chose to ignore those suggestions.
Of the legal opinions we have seen relating to this matter, most have been based on a very narrow view of a single clause of Census or Statistical legislation and Instructions to Enumerators and Officers of Census. With one exception these opinions have ignored other pertinent clauses of these same statutes and Instructions. They have not looked at the whole picture and have ignored other statutes – specifically the Access to Information Act, the Privacy Act, and the National Archives of Canada Act – that all have a bearing on this issue.
The one exception to this has been the legal opinion of Ann Chaplin, Senior Counsel, Constitutional and Administrative Law, Department of Justice, dated August 1, 2000. Ms. Chaplin’s legal opinion, unlike those preceding hers, considered the whole picture and came to a different conclusion than did those considering only the narrow view of the Secrecy clause of early Census and Statistics legislation. The opinion of Ms. Chaplin did not find a permanent prohibition to public access of Census records and suggested that the addition of a ‘notwithstanding’ clause to section 4 of the National Archives of Canada Act would be sufficient to resolve the current impasse.
Perhaps the most interesting point of Ms. Chaplin’s legal opinion is that it was requested by, and directed to, Myles J. Kirvan, Director and Senior General Counsel, Legal Services, Health Canada. While not directed to Statistics Canada we feel certain that they have likely been aware of it and have once again refused to accept a suggestion to resolve this issue.
As indicated above, we find it difficult, if not impossible, to support the so-called ‘compromise solution’. In our view there are essentially three options open to the government.
Accept Bill S-12 as a government Bill, preferably without modification, and see it passed by both the Senate and the House of Commons; or
Accept the recommendations contained in the Report of the Expert Panel on Access to Historical Census Records, draft a government Bill that reflects those recommendations and see it passed into law; or
Add the ‘notwithstanding’ clause, suggested by the legal opinion of Ms. Ann Chaplin, to section 4 of the National Archives of Canada Act.
At a time when other countries, specifically the United States and England, (both of whom are used as examples by Canada when developing other legislation and policies) are taking steps to make public access to Historic Census Records easier, Statistics Canada seeks to cut off all access to these records.
England and Wales, who release their Census records after 100 years, have scanned the documents of their Census of 1901 and photographic images of these documents will be made available on the Internet starting 2 January 2002. They are currently scanning the documents of their 1891 and 1881 Census’ with the intention of making them available on the Internet as well. (Check the website at http://census.pro.gov.uk for further information) While there is a charge for accessing and downloading the photographic image, the Census has been fully indexed and the index is searchable without charge.
In the United States, who release their Census after 72 years, at least two major companies are scanning and providing photographic images of their Census’ on the Internet. The intention is that all available Census’ will eventually be available on-line.
If Canada cannot be a leader in this matter, at least we should not be moving backwards.]
[The title of this document, and the first section labeled as “1. Objective” both refer to the unsubstantiated promise that Statistics Canada has maintained guaranteed that confidentiality of Census records would be perpetual. We do not accept the inclusion of the term promise here because to do so would be to concede to Statistics Canada that such a promise in fact did, and does, exist. Many months of research dedicated specifically to finding such a promise has proved to be fruitless. An Access to Information request was made to Statistics Canada for documented evidence of such a promise. They were unable to provide any such evidence. There is no evidence of any kind that any such promise exists except in the minds of those who wish it to be.
Provision for “providing reasonable access to historical records for …… genealogical research about one’s own family” is commendable, and is what we seek. On the surface, we see no problem with this. However, when viewed at the same time as the definition of one’s own family, detailed below, we have considerable concerns. Those concerns will be expressed following the section that contains that definition.]
[Extending the mandate of Statistic Canada to enable them to support genealogical and historical research is desirable, and commendable. The restrictions on that support however, go too far. At the very least, birth date, religious affiliation and country of origin should be included in the list of basic information. Knowing religious affiliation would permit further research from Church records to be conducted, where those records exist, and where researchers were previously unaware of that affiliation. Seeking the country from which immigrant ancestors came is a major reason people become involved in genealogy. Without knowledge of an ancestor’s country of origin it is not possible to conduct further genealogical research in the records of that country.
Restricting release of basic information gleaned from Census records to members of one’s own family severely inhibits one of the main reasons many people become involved in genealogical research. That reason being to publish, and therefore share with others (be they relatives or not) the fruits of their research, i.e. their genealogy and family history. Strict adherence to the provisions of this section would prevent sharing even the very existence of ancestors found through use of census records, let alone any other information regarding them. Concern here is increased once more by the extremely narrow definition of one’s own family.]
[We have great concern regarding this section, particularly insofar as the definition of one’s own family is concerned. To define ‘family’ only as a direct descendent of a direct ancestor is extremely restrictive.
Strict adherence to such a definition would allow one to search for, and upon finding it, use basic information on, for example, a g-g-grandfather. It would, however, prevent use of any information from Census regarding any siblings of that g-g-grandfather, and would consequently prevent any research regarding side branches of that family. It would allow use of information on only one child of that g-g-grandfather, and on only one child of that child, and so on down the direct line of descendancy, even though there might be ten or more children in each generation of those families.
Strict adherence to this definition would prevent research on any extended family. No research could be done on any degree of aunts, uncles, cousins, non-direct line relatives connected by marriage, or any other relatives. Such restrictive access to the records would be little better than having no access.]
[We have little to say regarding this section, preferring comment here to be left for those involved in historical research. While such conditions might be suitable for possible historical research allowed prior to the expiration of a 92-year period of closure, we feel there should be no such restrictions, for either genealogical or historical research, following the expiration of 92 years.]
[It is our opinion that a section relating to enforcement is likely not necessary at all, and is included here as ‘window dressing’, or as an appeasement to those bureaucrats who feel such a clause is necessary. As enforcement would be ‘complaint based’ it is unlikely that such a clause would ever be used. In the past century – in Canada, the United States and the United Kingdom – an estimated 620 million people have been enumerated. There has never been a recorded complaint regarding public access to Historic Census records after a reasonable period of closure. It is considered unlikely that there ever will be such a complaint.]
[This would appear to be in direct opposition to current provisions of the National Archives of Canada Act wherein the National Archivist has the authority to determine which government records are of historic or archival importance, and that shall be transferred to the care and control of the Archivist. We see no justifiable reason why records of Historic Census should be treated in a manner differently than any other archival government records, for example, military records or Cabinet documents, both of which are made available to the public after a period of closure.]
[We consider this to be a totally unnecessary bureaucratic procedure that only helps to create an atmosphere of oppression for those whose only motive in seeking information in Historic Census records is to find out about their ancestry.]
[This provision would indicate that photocopying of census forms would be prohibited and any information taken would be restricted to hand-written notes. A goal of all genealogical researchers is to obtain primary documentation to prove genealogical information. This section would prevent the acquisition of documentation considered to be one of the most important of all to prove that information.]
[Neither of the above two sections would be necessary if Post 1901 Census records were treated in the same manner, and accessible under the same conditions, as records up to and including those of 1901. There should be no discrimination between handling of records up to and including 1901 and those collected after 1901.]