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UPDATE - 25 September 2004
The hearing on the main action took place in Calgary on 8 June 2004 - the Honourable Mr. Justice Gibson presiding. His Order regarding the action was brought down 25 June 2004. It was not, however, favourable to our Applicant. The short version of his Order simply states, "This application for judicial review is dismissed. There is no Order as to costs".
In his "Reasons for Order" the Hon. Justice Gibson expanded upon his decision. For the most part he appeared to depend upon the affidavit of Pamela White (Access to Information and Privacy Co-ordinator for Statistics Canada) and the reasons given seemed more concerned with historical events rather than points of law. Also for the most part he seemed to ignore the submissions by our lawyer, Lois Sparling.
Needless to say, we disagree with the decision of Justice Gibson and with his reasons for it. Consideration had been given to appealing his decision but in the end run we decided against that. It was felt that a failed appeal might have a detrimental effect on any legal action that might be brought on our behalf by the Information Commissioner in response to our complaints to him.
UPDATE - 22 January 2004
On 22 January 2004 our lawyer Lois Sparling received notification from the Federal Court that the hearing on our legal action to regain public access to the 1911 National Census of Canada will be held June 8, 2004 at 9:30 AM in Calgary
UPDATE - 17 November 2003
On 20 October 2003 a single posting was made to genealogical mail lists seeking contributions to a legal fund to help finance our second legal action -- initiated on 5 June 2003 to regain public access to the 1911 National Census of Canada. On 17 November 2003 Lois Sparling advised that our funding goal had been reached.
We thank all of those who contributed generously to the legal fund.
The Legal Case - Going to Court - Again!
On 5 June 2003, Calgary lawyer Lois Sparling once again initiated a legal action on behalf of the Canada Census Committee. This second action deals once again with the failure of the Chief Statistician to turn over control of the 1911 Census records to the National Archivist. The sole plaintif in the current action is Mertie Anne Beatty, one of the plaintifs in the previous action that was instrumental in obtaining the release of records of the 1906 Census of the NorthWest Provinces on 24 January 2003.
Arguments put forth by Lois are essentially the same as those put forth in the previous action, as are the responses of Justice Canada lawyers representing Chief Statistician Ivan P. Fellegi, National Archivist Ian E. Wilson, and Attorney General Martin Cauchon. The responses of the Justice Canada lawyers appear so far (September 2003) to be simply delaying tactics.
On 11 July 2003, the day that the respondents to our action were due to submit affidavits, Justice Canada lawyers made an application to strike our action. Their application suggested that the Chief Statistician has no duty to release control of the 1911 Census to the National Archivist and that the National Achivist has no duty to release the 1911 Census to the public, and as such our action has no chance of succeeding. The hearing for this application was set for 7 August 2003.
Hearings on the Application to strike our action took place as scheduled on 7 August 2003. There were two full hours of legal argument. The Judge presiding at the hearing, the Hon. Madam Justice Layden-Stevenson, reserved her decision because she had not had time to read copies of reported decisions submitted with our written argument.
The Hon. Madam Justice Layden-Stevenson rendered her decision on 5 September 2003. Justice Canada lawyers received a small measure of success in that a request seeking an order 'directing the Chief Statistician and the National Archivist to make nominal returns and schedules of the 1911 Census of Canada available to the public for research purposes' was struck. In all other respects, the motion of Justice lawyers was dismissed.
In reading the judgement it would appear that the Judge felt the request struck was premature. Rather than trying to deal with all aspects of obtaining access at one time it would appear she feels we must first prove that the Chief Statistician has a responsibility to return care and control of the records to the National Archivist. At such time as that happens, and the National Archivist actually has care and control of the records, he can be requested to release them to the public. Should that request be denied, then an order directing the National Archivist to release the records to the public might be sought. Government respondents were given 15 days from the date of the order in which to file any responsive affidavits. Justice Canada lawyers wanted 30 days in which to respond
Once the respondents affidavits have been received by Lois Sparling, she will be free to make application for a hearing date
