TOWN HALL MEETINGS
OTTAWA -- 14 DECEMBER 2001
This page contains correspondence from Jeff Paul, Legislative Assistant to Senator Lorna Milne, relating to the Town Hall Meeting held in Ottawa. His presentation follows the correspondence. Jeff attended the afternoon session of these meetings.
From: Paul, Jeff: SEN
To: Gordon A. Watts
Sent: Monday, December 17, 2001 6:02 AM
Subject: Town Hall Meeting - Friday
Gordon:
I see that the summary of the events on Friday that have been written by Lyn Winters and Chad Gaffield are making their way around the listserve. I just wanted to add a few notes, and you can feel free to pass them on to the general group, either by forwarding this email, or by including my comments on other material you send out.
I didn't make it to the evening session, and would have been thrilled to watch the privacy expert come out in favour of disclosure of individual census records after 92 years. That would have been sweet to watch. I trust that Chad Gaffield's presentation went very well too. I thought that tackling Stats Canada's claim that releasing the records undercuts the
census was a particularly brilliant approach.
I had the chance to discuss the town hall meetings briefly with Senator Milne, and will do so again this morning, but there are two inescapable conclusions that we have already drawn. First of all, we need to ensure that at each of the rest of the meetings someone is there to tear apart the compromise solution. Chris Baker from Environics Canada asked the same
question of every person who made a presentation. "What do you think of the compromise solution". Each person had their own response to the question, but I think that most of us were not prepared to deal with it head on. It was only about 1/2 an hour after my presentation that I came up with a solid argument, and was lucky enough to be able to convince Mr. Baker to give me the floor to deal with the issue. Every person who is presenting should read the summary of the compromise solution that you have on your website and be prepared to explain why it does not work from their perspective.
Secondly, I think that we must continue to rehash the promise / no promise issue. I agree that it was a smart move for Professor Gaffield to advance the argument a step or two, because we heard from him on the subject through his work on the Expert Panel. But one thing that was abundantly clear is that Mr. Baker is a novice on this issue. He is also open minded. Lets not give him the opportunity to say at the end of it all that the promise vs. no promise is not an issue. I know its not polite to repeat yourself. But don't forget that Mike Harris won 2 provincial elections by repeating one clear statement until the majority of Ontarians believed it. Each person should spend at least a minute or two explaining that there was no promise,
and one person at each meeting should make it one of the major focal points of their presentation. The Environics report should state that the majority of people who have studied the issue believe that no promise was made. We can't give them the chance to say anything else.
One of the best parts of the afternoon session, I think, was the "quick hit" presenations for the last half of an hour. About 7 or 8 people got up and in 90 seconds or less gave 1 more reason, often a very personal one, why the census records should be released. It gave real momentum to the end of the meeting. Those people who want to say someting, but don't want to make a
big presentation can make one short, simple point. These went over very well because it showed the unanimity of the people attending the meeting.
Finally, we should always try to get the last word. If someone gets up with 1 minute to go and says something against the release of the census, someone should stand up and rebut the argument with at least a one liner, even if they have spoken before. All issues raised at the meetings should be addressed.
Thats all I have for right now. Gordon, I'll give you a call later on this morning, once the roosters are up in your neck of the woods.
Jeff Paul
Legislative Assistant
Office of the Hon. Lorna Milne
ENVIRONICS TOWN HALL MEETING
PRESENTATION BY J. PAUL
Mr. Chairman thank you very much for the opportunity to make a presentation this afternoon. By way of background, you should know that I am a lawyer, and I currently work in the Senate as a Legislative Assistant. I first learned about this issue as a result of my research into Bill S-12, the Private Members Bill that is before the Senate that calls for the release of historic census records. My interest in this question, though, is rooted in my passion for Canada’s history, and my belief that all Canadians should have the opportunity to learn about themselves.
As a lawyer, I must admit that I will bring a bit of a legal spin to my analysis. From the outset I want to tell you that I believe that Statistics Canada is breaking the law by refusing to release the 1906 and 1911 individual census records to the National Archives of Canada. I also think that the evidence shows that the cabinet made a specific policy decision at the turn of the century that the census would be used as one of Canada’s primary archival sources. There is absolutely no evidence to suggest that the Government of Canada has changed that policy.
Let me start, then, with something that everyone agrees on. Under the Privacy Act and the National Archives Act, the National Archivist has the right to ask any government department to give him records that are of historical importance. The National Archivist has already made this request of Statistics Canada. Government agencies can only refuse a request of the National Archivist where another law prevents the agency from disclosing the information. The crux of the question, then, is whether any such law exists. I suggest to you that there is no such law.
As you noted on the website that announced the town hall meetings, those that want to keep the census information secret state that a promise has been made by the government that each person’s answers to census questions would remain forever confidential. I believe that it is important that you understand the context and nature of that promise. This quote promise unquote, is part of the instructions that were given to enumerators by order in council in 1906. Those instructions state at section 23, and I quote:
“s. 23 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 question respecting their contents, directly or indirectly; and the same obligation of secrecy is imposed upon commissioners and other officers or employees of the outside service, as well as upon every officer, clerk or other employee of the Census Office at Ottawa. The facts and statistics of the census may not be used except for statistical compilations 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”.
You should note both the context and object of this statement. First, the admonition is made primarily to enumerators. In 1906, the census was taken by individual enumerators who went from door to door to ask the questions and record the responses. The government did not mail out a form and ask Canadians to mail it back. Many people were concerned that because of the intrusive nature of the questions, and the fact that their neighbours were the enumerators, everyone would know their business. Secondly, newspaper accounts at the time indicate that many people were worried that the government would use the answers on the census questionnaire to raise taxes. In order to respond to those concerns, the government drafted section 23 which tells the enumerators to remain silent, and provide reassurances that taxes will not be increased as a result of the answers. The Expert Panel on the Release of Historic Census Records agrees that there is no evidence to suggest that this promise was intended to last forever, and that section 23 of the instructions to enumerators was drafted to specifically deal with contemporary concerns.
Now I will concede that if section 23 stood on its own, the law would be unclear. Statistics Canada could make an argument to perpetually bar access to the 1906 and 1911 censuses. Fortunately, the same order in council shows that cabinet turned its mind to future use of the records at the same time that it crafted its response to contemporary concerns. Section 36 of the instructions state as follows:
“s. 36 The enumerator is required to make all entries on the schedules in ink of good quality, and every name, word, figure or mark should be clear and legible. If a schedule cannot be read, or if the entries are made with a poor quality ink, or in pencil, or if they are blurred or blotted, the work of the enumerator may be wholly wasted. The census is intended to be a permanent record, and its schedules will be stored in the Archives of the Dominion”.
How can the government’s intention be expressed any more clearly? In 1998 the National Archivist asked for the records in accordance with the Privacy Act. The government said specifically in 1906 that the schedules would be stored in the Archives of the Dominion. To date, Statistics Canada has refused to deposit the schedules with the Archives.
But you don’t have to take my word as the authority on the legality of the release of historical census records; you can look to the legal advice that the Department of Justice gave to Statistics Canada in August 2000. Ann Chaplin, Senior Counsel, Constitutional and Administrative Law Section gave Statistics Canada a full briefing on the issue. She said, and I quote, “…the better view seems to be that the National Archivist has the authority to release pre-1918 census documents without seeking any legislative change”. In fact, the current Chief Statistician, Dr. Ivan Fellegi, was told over 20 years ago that the census records needed to be released. While the debate on the first privacy act was ongoing in parliament, in 1982, the Department of Justice advised Stats Can on the relationship between the new act and the census records. Specifically, the department looked at whether the census records could be kept under wraps, given the provisions of the Access to Information Act, and the new Privacy Act. The Department of Justice told Dr. Fellegi, and I quote again: “by not relying on section 19 of the Access to Information Act, and giving full weight to the permissive exceptions in section 8 of the Privacy Act, Statistics Canada would be showing the utmost good faith in the carrying out of the will of Parliament”. Dr. Fellegi has deliberately chosen to ignore that advice. I submit that it is time for Statistics Canada to start living up to the legal obligations that it owes each and every Canadian by releasing the post 1901 census returns, starting with the immediate release of the 1906 census records.
Given that backdrop, let me turn now to an even more important question. Why would all these busybodies want to stick their noses into other peoples business where it doesn’t belong, just to satisfy their own perverse curiosity? Not to put too fine a point on it at all. I am sure that over the next 2 months you are going to hear that question put many times, and answered many different ways. You will hear about early treatment for genetic diseases. You will hear about the British Home Children. You will hear about how Canada’s history must be about more than the lives of the rich, famous, powerful and athletic. You will find people trying to find out who they are. You will hear about the search for long lost relatives. I will leave those specific issues to those who are historians, doctors, and Home Children. I am sure you will hear from them all. I want to talk to you about the loss to Canada’s judicial system, in particular Canada’s if these records remain sealed forever.
I want to tell you about Rod Powley. I knew Rod about 20 years ago. We went to the same primary school in Sault Ste. Marie, but I wouldn’t say we were or are friends. I don’t think I’ve talked to him in 20 years, but when I saw a Powley from Sault Ste. Marie as the defendant in the weekly legal report sent out by the Law Society of Upper Canada it piqued my interest. Once I read far enough along to find it was the kid I knew, I kept reading. It seemed that Rod was charged for hunting bear out of season up in the Sault. His defence was that he is a Metis and as such has a right to hunt and fish in the area for his own use as often as he likes. The crown did not believe that he is Metis. So they said, prove it! So he did. And he used the 1901 census records to do it.
Rod knew that his family lived in the area for generations. He could easily tell you who his parents and grandparents were and where they lived. There was no doubt he also had anecdotal evidence of great or even great great grandparents and how they lived in the area. But in a court of law anecdotes don’t get you very far. Courts need the kind of surety that independent government records give. Rod was able to give the court independent, unbiased proof that his ancestors were Metis and that they lived in the Sault area. The records gave enough of an indication of how Rod’s family lived to prove that hunting had always been part of his family’s life. As a result, the court was able to find as a fact that Rod is a Metis, and as such could benefit from any ancestral and treaty rights that the Metis community in the area have.
The decision of the Provincial Court in this case was appealed to the Ontario Court General Division, and eventually to the Ontario Court of Appeal. Each time the original decision was upheld. The case has gone on to the Supreme Court of Canada, where legal experts are expecting the court to do a thorough analysis of Metis rights and put them into proper legal context for the first time. Historical census records laid the factual foundation for the important legal analysis that the courts are doing. As I noted before, these independent, unbiased, factual records allow courts to act decisively where present day legal disputes are founded in our history.
Deciding how to record a society’s history is one of the most important decisions a country can make. In large part that is what this decision is all about. I know I stated earlier that I would leave the historical analysis to the historians, but I hope you will allow me to wax philosophical for just a couple of minutes about Canada’s history.
Canada’s history is about much more than politicians, athletes, entertainers and business magnates. It has taken Canadians from all walks of life to build the greatest country on earth. The first half of the twentieth century is when Canada truly came of age, yet it is that exact period of time that Statistics Canada has chosen to hide from us. Alberta and Saskatchewan became provinces in 1905, Canada fought two world wars, Britain’s Home Children were sent to Canada to start a new life, and massive numbers of Chinese and Eastern European immigrants began landing in Canada. We know a lot about the big picture, and how Canada changed dramatically in those years. We know little about the individual Canadians whose sacrifices are still influencing us today. They are our grandparents, great grandparents, aunts, uncles, and cousins. We should be proud of all of them. Please don’t let them be forgotten, give them their proper place in Canada’s history - the National Archives, not a cold dark Statistics Canada storage room.
Thank you, and I would be pleased to answer any questions you might have.
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