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OTTAWA, Thursday, February 27, 2003

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-13, to amend the Statistics Act, met this day at 11:00 a.m. to give consideration to the bill.Senator Michael Kirby (Chairman) in the Chair.

The Chairman: Honourable senators, we are here today to deal with Bill S-13 that is back before us once again in a somewhat different form, different number, same subject, which is an act to amend the Statistics Act. We have two panels this morning. First we will hear from Mr. Fellegi, Mr. Wilson and Mr. Leadbeater.

Thank you for coming here today. We will try to be as efficient as possible this morning by asking you to limit your remarks to be as brief as possible. We will then proceed to questions and I will begin with Senator Murray when I turn to questions.

Mr. Wilson, please proceed.

Mr. Ian E. Wilson, National Archivist, National Archives of Canada: Honourable senators, I have tabled a deck to you in both languages. I will speak to that briefly without reading it at any length. Simply as background, as committee members are well aware, a great deal of time and energy has been spent on this issue of access to the historical census records. A great deal of time in government, within Parliament, in the broader Canadian community, the research community, and individuals in many walks of life who are interested in genealogy have been very active on this. Most recently, there has been a great deal of activity in the legal system and in courts on this issue.

It was clear that a compromise was needed between Statistics Canada and the National Archives to try and work out a suitable compromise that respects privacy but also the requirements of archives legislation and also the interests of the research community.

We have developed this compromise between us. I am pleased to see that it has now taken the form of this, Bill S-13, and is now before Parliament for discussion and consideration.

What I can perhaps do best is give some background to the issue. Briefly, without rehearsing all of the arguments you have heard before, in terms of the census records, by and large, those records pre-1906 and earlier are with the National Archives; census records since 1906 remain under the control of Statistics Canada, though they are stored simply for storage purposes in one of our record centres.

On page 4, honourable senators will see that the key to this are the instructions given in the 1905 Census and Statistics Act and in the instructions under that. Section 26 requires confidentiality on the part of those taking the census. Section 34 qualifies that to make it clear that this was intended to be an historical record to be housed in the archives of the dominion. By 1911, it talks about it as a record of historical use and a record for tracing the origins of future towns.

On page 5, honourable senators will see that one of the key steps along the way in the consideration of this was the appointment by the Honourable John Manley as Minister Responsible for Statistics Canada of an expert panel to review the issues around this. They noted and recommend the immediate public release of the 1906 census with a scheduled release of the 1911 census in 2003. They did note, though, that with 1918, where there was a new Statistics Act passed, it was likely that legislation would be required to deal with legislation subsequent to 1918. This compromise attempts to deal with both 1911 and 1916 census, as well as the whole rest of the 20th century and provides a regime around research access for the rest of the 20th century, getting into some very complex and lengthy censuses by the time we get to the 1970s and 1980s.

Privacy is a key issue. We recognize that in the archives. We also recognize that a key principle of all privacy legislation, nationally and internationally, is that privacy reduces over time. It ceases, under our law, to be personal 20 years after the death of an individual. That is also explained. It could be 110 years following the birth of an individual or, in terms of census, 92 years have elapsed following the census. Under those regulations, the National Archives is permitted to release information on this basis.

I note on page 7 that we have been releasing census information for about 50 years. There has been no complaint on privacy in the time that we have been releasing this.

Since we put the 1906 census on line two months ago, there have been many uses of that site. There has been absolutely no complaint from any individual across the country on access. Quite the reverse, there have been many strong compliments. People are delighted to be finally be able to see and trace more aspects of their family tree.

On page 8 refers to other jurisdictions. Interestingly enough, in Canada we have two regimes operating. Newfoundland, prior to Confederation, had their own censuses. Censuses up to 1945 have been released and available for some time. From time to time there is concern about compliance by Canadians if we release census records. It is interesting to note that, in Newfoundland, our fellow citizens there are no more inclined to ignore the requirements of the Statistics Act than are the rest of Canadians. Even though their census records are already open up to and including 1945, there has been no issue. The United Kingdom is 100 years, the United States is 72 years, in terms of access. The importance and value for Canadians is absolutely essential, particularly the 20th century censuses to follow family history, to look at rights and descent and linkages, for general research use to understand the development of the Canadian population. From 1906 to 1916, the population of the three prairie provinces increased by 400 per cent. That is an extraordinary development in one part of Canada, similarly for the rest of the demographics.

We participated in a poll nationally just a year ago. In that poll, 50 per cent of Canadians indicated they are either very interested or somewhat interested in pursuing their family history. This is confirmed on pages 10 and 11 where we provide first the daily statistics since we opened the 1906 census on line. On January 24, within one day, over 600,000 pages were being used every day for several days. It has dropped off a little bit but there has been phenomenal public interest.

That continues for the 1901 census which went on line last May or June. The monthly totals in some cases is over 1 million uses for pages on our Web site on that census. All of this, I must emphasize, has occurred without any complaint around privacy issues. We have achieved the right balance. We support the broad objective of Bill S-13, which is to clarify finally the issues that still continue around access to historical census material. It tries to find the right balance between privacy and research interest and public interest in this material. This is what a compromise tries to do. Like any compromise, it is a bit of give and take. It does clarify the whole issue for the 20th century and that is very much what we would like to see happen. We want to have it clarified through Parliament, rather than through the court system, and try to interpret existing and, occasionally, somewhat contradictory aspects of regulation and law.

We encourage the passage of this bill. If we can do anything to provide further information for the committee, we would be delighted to do so.

Mr. Ivan P. Fellegi, Chief Statistician of Canada, Statistics Canada: Honourable senators, I am not in a popularity contest with Mr. Wilson, because I will be even shorter than him, but we are absolutely singing from the same hymn book. We are both supporting this bill.

I am pleased that a solution has been found to the difficult problem of balancing access to our historical census records with protecting the privacy of Canadians. The underlying problem has been some legal ambiguity about the confidentiality status of historical census records. As chief statistician, my professional concern has always been the issue of impact on the statistical system of Canadians if they lost trust in the ability of Statistics Canada to protect their confidential census returns.

I believe Bill S-13 clarifies the issue for both historical and future census records. Most importantly, from my professional point of view, I think it does so in a manner that preserves the credibility of our confidential promise.

(French Follows -- Mr. Fellegi -- Le projet de loi S-13 permet...) AD / 27-02-03 (après anglais)(M. Fellegi)

Le projet de loi S-13 permet l'accès aux dossiers historiques du recensement 92 ans après la tenue du recensement, mais conformément à des conditions particulières. Ces conditions d'accès et de diffusion visant la protection des renseignements personnels des Canadiens ne sont ni lourdes ni, je crois, indûment restrictives pour les généalogistes et les historiens, mais ils envoient un message très important. La vie privée des Canadiens est prise au sérieux.

Ces conditions seront en vigueur durant 20 ans après la diffusion des dossiers historiques du recensement. Les conditions d'accès et de diffusion seront retirées 112 ans après le recensement.

(Following French-- après le recensement.)

The 112-year period represents a condition which provides 20 years of additional, although diminished, privacy protection for Canadians. The Privacy Act permits information to be released from a census 92 years after the census. The Privacy Act also permits the release of personal information 20 years following death. Since there are few people alive by the age of 112 years -- or even much beyond age 92 -- the conjunction of these various conditions has resulted in the 112 years as set up in Bill S-13.

They are not based on first principles. Like any compromise, they are arrived at as a result of negotiation.

Given the legal ambiguities surrounding the confidentiality status of historical records, the compromise set out in the bill is a reasonable one. Given her longstanding interest, I am particularly pleased that Senator Milne, in her speech to the Senate introducing the bill, expressed that the bill strikes an effective balance between all kinds of competing interests. That is a key point; there are competing interests. The bill attempts to strike a balance. However, in addition to setting the balanced course for historical censuses, from my point of view as chief statistician the most important provision of the bill concerns future censuses. Here, the bill eliminates any possibility of legal ambiguity. Indeed, beginning with the 2006 census, individuals under this bill would be asked to permit future public access to their census information 92 years after the particular census.

This approach is described by the Privacy Commissioner of Canada, Mr. Radwanski, as being "in keeping with the highest standards of privacy protection." This is a very clear provision. Important from my point of view as chief statistician, it is easy to explain when one stands in the doors of Canadian homes requesting personal information during the census. As such, it will be instrumental in maintaining the high level of public credibility enjoyed by Statistics Canada in general and the census in particular.

Mr. Alan Leadbeater, Deputy Information, Deputy Information Commissioner, Office of the Information Commissioner of Canada: Honourable senators, I have an uphill battle. These distinguished gentlemen, my colleagues as witnesses, have come to an agreement that is reflected in the bill. I hope to persuade you today that it is a compromise that has serious flaws. It is our view in the Office of the Information Commissioner of Canada that, under existing law, 1911 and 1916 census records are accessible by anyone in accordance with section 6 of the Privacy Act regulations after 92 day years from the date of the census. There is no reason to restrict that access now, nor to treat these census records any differently from the 1906 census records which were recently released. There is no evidence of any promise having been made to Canadians that there would be any longer period of secrecy for these records.

For the future -- and this is the big concern -- there is no justification for allowing Canadians to throw a blanket of secrecy over census information forever, merely by withholding consent for disclosure after 92 years.

This expansion of the zone of secrecy would be unprecedented. As attractive as the notion of up-front consent may be, other personal information held by government -- even the most sensitive, such as medical, psychiatric, parole or criminal records may be kept secret only until 20 years have elapsed after death. Consequently, it is our position that the proposed subsection (7) of section 17 of the Statistics Act should apply to all post-1918 census records. One hundred and twelve years represents an appropriate period after which the law should deem that privacy interests cease in census records. It conforms to the Privacy Act's provision that privacy rights survive only until 20 years after death.

Finally, for census records collected after the passage of the Statistics Act of 1918, there is an arguable case to be made that since it contained a secrecy provision, census records collected thereafter merit additional privacy protection. This new element of privacy protection in Bill S-13 is the proposed undertaking to be given by researchers and genealogists. However, the Information Commissioner does not agree that this should be set by regulation. We must not forget that failure to abide by this undertaking will constitute an offence. As always, it is preferable for Parliament, not cabinet, to define offence provisions.

In summary, then, the Information Commissioner is of the view that there is no evidence indicating that a regime of restricted access after 92 years and full access after 112 years would jeopardize in any way voluntary participation rates in any future census. The British permit full access after 100 years, the Americans after 72 years. Neither jurisdiction has participation rate problems as a result.

I have attached an option "A" to my remarks. You may want to look at that. Drawing from the rules that are already set out in the Privacy Act, if we are looking for a balance, that is it. The Information Commissioner represents that census records, past and future, be open without restriction 112 years after collection. Second, as indicated in paragraph 4, census records collected after 1918, the date of the first Statistics Act, and for the future, should be open to researchers 92 years after collection, subject to a statutorily defined restriction on disclosure until the 112 years have elapsed.

Most important, the provision permitting secrecy forever, when participants in a future census withhold consent disclosure, is excessive by any reasonable standard and should be dropped. The Information Commissioner stresses this point. If the provision is the price to pay for opening up past census records to research, then it is too high a price to pay, for future census records as a research base will be irreparably degraded by the inevitable incompleteness that will result from exercise of the consent option.

Finally, the Information Commissioner, and this is at paragraph 9 of option "A", represents that the 1911 and 1916 census records should be open without restriction after 92 years in the same way as were the 1906 census records. I have underlined in the options the changes from the original bill. Honourable senators will note that we offer an option "B" that is outlined in my remarks. This option, if you look at paragraph 8, which is the distinguishing factor, would allow limited consent for the future, allowing researchers and genealogists to have access to their census records for research purposes after 92 years, subject to the same undertaking as for pre-2006 census records. However, under option "B", all future census records would become open to all after the 112 years have elapsed from the date of the collection.

That is the kind of balance that truly respects the rights of Canadian research communities and genealogists and, at the same time, the privacy of Canadians.

The Chairman: I would ask that in the interests of focusing the discussion, we focus on what would appear to be the difference in views between the panelists, the first being the issue of what happens with respect to the 1911 and 1916 census, and the second being the extent to which the individuals ought to be able to protect their information after the 92 and 112-year period, which the Information Commissioner has the view should not be required, and the other two witnesses regard as a reasonable compromise. Could we try to focus our comments on those two specific issues? They seem to me to be the two that are fundamentally before us.

Senator Murray: I wish to say first, Mr. Wilson, that I and perhaps others here are quite flattered by the implication that honourable senators are qualified to sign off on historical research projects. I referred to this when I spoke to the bill at second reading. I now have the benefit of a draft form that would be filled out by an applicant seeking access to the census records for historical research, as "my research project has been approved by," and that could be the chief statistician, the national archivist, members in Parliament and senators, a mayor, a chief of a First Nations community or a band council, the dean of a university and senior clergy. This is pretty loosey-goosey; is it not?

The Chairman: For the record, I do not think any of the rest of us, including the chair, has the draft regulations. That is why we look blank. Senator Murray: The main point is that those seeking to do historical research must have someone sign off that it is a legitimate piece of historical research, and honourable senators, among others, are deemed to be qualified to do this. How did you come up with this list, Mr. Wilson, or is that question properly addressed to you?

Mr. Wilson: Again, it was between Statistics Canada and the archives that we developed this list. The intent was to have someone who represents the community indicate the community that is subject to research. We cannot dictate this from Ottawa. It is best to have those who are involved locally. For example, if you are doing a history of your church congregation, the clergy should be able to say, "This research is valuable, useful and important." Similarly, members of Parliament and senators can say the same thing. It is simply trying to, like our system of passports, have responsible officials in the community that is subject to the research say, "This is useful and socially valuable."

Senator Murray: Do the historians now consider us as peers for purposes of peer review?

Mr. Wilson: This is not a peer review process, senator.

Senator Murray: They asked you to say that; did they not? I do not believe I will engage on this subject of granting unlimited and unconditional access after 112 years. I state right after the bat that I do not like that provision. However, I will not try to bring an amendment or make a fuss about it. I understand that it is part of the compromise that was reached. The reason I will not make a fuss about it or amend it is it is part of a much larger issue that Mr. Wilson, and, to some extent, Mr. Leadbeater, have alluded to. That is the fact that under the present Privacy Act, personal information can be released 20 years after the death of the person in respect of whom it has been collected. I object very strenuously to that, as a matter of principle. I do not agree with it at all. I would like in some other forum at some future occasion to have a principled defence and argument about it. I do not agree with it. I objected most strenuously but too late - my fault -- when we had a bill before us dealing with commercial information. It turns out that personal information collected by businesses for commercial purposes can be released to the public 20 years after you are gone. I object to that. However, I am not going to engage on the point now because it is part of a larger issue.

I think it is almost an open secret that in addition to these draft regulations that are circulating, there are also some draft amendments that are circulating, and I must take advantage of the witnesses at the table to ask them about the amendments, although, the amendments are not before us. I am not sure they will be proposed.

The Chairman: I think it is a safe bet.

Senator Murray: I will not read the amendments. I will describe them to you, and I will ask you to speak to them if you wish to.

The first amendment would allow the 1911 and 1916 censuses to be released without condition 92 years after the date of the census. In the case of the 1911 census, that will be this year, on the same basis as the 1906 census that were released earlier by Statistics Canada and National Archives without any conditions.

I probably will not argue the point now unless the amendment is moved and when it is moved, but I think I should ask the witnesses to comment on that draft amendment.

The Chairman: Mr. Leadbeater says he is in favour of it. What do the other two think?

Senator Murray: Yes.

Mr. Fellegi: Thank you, senator.

There has been a straw man set up and knocked down about the promise of Laurier. To the best of my knowledge, there was and is not a promise of Laurier about confidentiality. However, there is a real promise that was made that was different in 1906, 1911 and 1916 than there was in 1901 and the preceding censuses.

The government of the day did pass legislation establishing statutory confidentiality protection for those censuses. That protection "was inviolate." Furthermore, though I am not a legal person, what is important is that all interviewers were instructed to tell Canadians what was different between 1906, 1911 and 1916 censuses. They were also instructed to write legibly so that the information can be put in the archives. So here is the legal ambiguity. It was never tested in the courts. The government decided to give the benefit of the doubt in the case of 1906 before this bill was passed, because 92 years is already passed, and also because it is a very restricted census. Questions under this new legislation are more like the tombstone information. It gave the benefit of the doubt to the release side of the coin and released the 1906 census. It also apparently decided to settle the issue of the legal ambiguity, and settle it for 1911, 1916, 1921 and all the way up to 2001, all the censuses that have already been taken.

The idea of this bill is to settle what is the legal ambiguity. It is greater at least in respect of 1911 and 1916 than for the censuses following 1918 where the weight of evidence has shifted towards the confidentiality protection. There is a doubt on all of these censuses in terms of what the legal status of confidentiality protection is. I am not a lawyer. From my point of view as statistician, there was a change in procedure in 1906, 1911 and so on. That is, under statutory provision for the first time our predecessor's interviewers were asked to tell householders this is in violate information.

The Chairman: That was a terrific history lesson, but it did not answer the question. The question was do you or do you not object to an amendment which would treat 1911 and 1916 the same way as 1906?

Mr. Fellegi: I certainly strongly favour the present provisions of the bill, and I would advise against endorsing that kind of amendment.

The Chairman: That is clear.

Mr. Wilson: This is one of the points of contention that has been there for some years between Statistics Canada and the archives. We understand that the situation in the 1911 and 1916 census is the same as that of the 1906 census, which is now available on-line without complaint.

We did extensive research to try to find the promise. When I with appointed, I asked for a copy of what I had heard was a promise. All we can find is what I have outlined on page four, section 26, which explicitly and clearly implied to those who went from door to door in 1906 detailing the personal information balanced against the requirement there is to be a permanent record and be accessible through the archives of the dominion. There was a clear balance there between short-term privacy and long-term research. That is what Sir Wilfred Laurier's government established. That continues.

Looking at the newspapers and debates in Parliament, I found there were two concerns raised around privacy. One concern was this census would be used as a basis for government taxation, or we use it for conscription. I think those two reasons have long passed. Certainly from the point of view of the archives, we would have no objection to amendments that open 1911 and 1916, 92 years after the taking of the census.

Senator Murray: Well, when the government put out its briefing book on the government, the new government bill in answer to the question why were the 1906 census records released without conditions, they said, for the 1906 censuses, the government decided on the immediate of those records without conditions given the special nature of that census. The answer goes on to point out that the 1906 census collected only limited tombstone information such as name, address, age, sex, marital status, and origin. It had a limited geographical coverage of Manitoba, Saskatchewan and Alberta. With regard to 1911, it would have been a national census. I should like know if the information collected in the course of that census is simply tombstone information or if it is more detailed.

The 1916 census would have been another regional census, and I would like to know how extensive the information was that was collected in 1916. Do one or the other of you have the answer to that question?

Mr. Fellegi: Yes, senator, the 1911 census goes beyond tombstone information. I will not go through the whole questionnaire, but I shall mention what I think is sensitive information. The most sensitive of those is about so-called infirmities. Each person in the household was asked whether this person is blind, deaf or dumb, crazy or lunatic, or idiotic or silly. Those are not questions we put today, but they were considered legitimate.

The Chairman: Some senators would find those questions easier to answer about our colleagues than ourselves.

Mr. Fellegi: In addition, there were questions about the months of schooling of this person, whether or not he or she can read or write. Those are certainly very sensitive questions. They were quite different from what were on the 1906 census. To be fair, they are similar to what were on the 1901 census. However, the 1901 census was taken without a legal provision of confidentiality.

Senator Murray: I do not want to debate Mr. Wilson on that. I read the regulations from 1905 and 1906 into the record when Senator Milne's private bill was around. It seems to me the requirement of confidentiality did not apply only to be people on the doorstep; it applied to everyone who touched the information at whatever level of government. I do not think that is an exaggeration, but you will correct me if I am wrong or if you have the text in front of you.

Let me ask you about the second draft amendment that is circulating. That is something Mr. Fellegi referred to just before he completed his remarks. It is the question of giving consent to the eventual release of your personal data. I spoke very favourably, as Mr. Fellegi did, about the provision in this government bill to that effect. They are saying, however, an amendment making the rounds that would introduce a form of what I call negative option billing means that you would not be asked whether you agreed. Rather, you would have the opportunity to sign if you disagreed, if you objected to the eventual release of your personal data. What do you think of that? Is it the same thing, Mr. Fellegi?

Mr. Fellegi: No. On that one, I feel very strongly. I feel very strongly about many matters, but on that one I feel very strongly as Chief Statistician. I would like to make a number of points about that because they are important.

First, when Canadians are asked to provide information in a positive way, not in the sort of opt-out as opposed to opt-in way, they overwhelmingly provide such permission when they trust the institution making such a request. Let me give you two examples of that. Elections Canada wants to have access to address change information that is registered on tax forms. There is a question on the tax form in which Canadians are asked to opt in, not in a negative mode but in a positive mode. They are asked, "Do you permit address change information from your tax records to be provided to Elections Canada?" The permission rate on that question is 80 per cent, even though the people who read it may ask themselves? Do I want to provide access to my tax records to Elections Canada? Of course, that is not the intent of the question, nor is that how it is worded. Overwhelmingly, the answer is positive.

For our health surveys we interview approximately 130,000 Canadians about their health every second year. We ask them to allow us access to their provincial health records so that we can add the information in the survey to the provincial health records, thereby making a more meaningful analysis. Some 95 per cent give permission to access current, very sensitive information of that sort because they trust us and because it is a positive option.

The second point I would make has to do with the pretty horrible example of what happened when Rogers Cable tried its negative billing option. It resulted in a backlash. The likelihood of more people having a backlash against access in that environment is greater than in the positive opt-in scenario. It does not look like a tricky way of getting access. Do you want to provide access, yes or no?

I made a private undertaking with the National Archivist which I am glad to make public as part of the record. I undertook to work with the archivist in the publicity program regarding future censuses because there is a massive publicity campaign that surrounds the census necessarily. It is an opportunity to encourage Canadians to provide their permission. Because this is a public meeting I am hereby committing my successors to do the same.

I am not against access; I am against access without permission. I am more than ready to work with the archivist to provide the access.

When all is said and done Statistics Canada has to run the census and its experience should be given weight. The census is the government's largest peacetime operation. It is totally dependent on public trust and cooperation. With due respect to Mr. Leadbeater's point, it is quite different from medical records, criminal records and legal records because in those cases there can be major penalties or personal interest involved. You cannot deny your doctor your medical information if you want to be treated. However, you can deny Statistics Canada your census information. Even though it is compulsory, we cannot put 30 million Canadians in jail, nor would we plan to do so, you might be relieved to hear.

Therefore, in the census we must rely on simple cooperation. We do not have effective penalties. We do not have effective self-interest of an individual sort like when you provide your medical information to your medical doctor or your legal information to your lawyer. The census has to count 100 per cent of the population. It is not enough to count 80 or 95 per cent of the population. Cooperation is crucial. We cannot have even a small percentage not cooperating because hundreds of billions of dollars are riding on census information over a five-year period. I refer to equalization payments, all the social transfers between the federal and provincial governments and a whole range of other programs.

The reliability of that information is utterly crucial and there is no second chance on the census. If you muck it up, even in a relatively minor way, there is no comeback. It is different from almost every other operation in that respect.

Every census taken in the world would tell you that confidentiality and trust are essential to census taking. I believe the proposed bill is a compromise that, like any compromise, can be pushed. If it is not based on first principles, if it is a compromise, either side can say, "How about giving a little more?" With regard to privacy, one could say, "Why should restrictions not be forever as opposed to 90 to 112 years? Why should there not be full peer review for the historical census, as opposed to the kind of review outlined by Mr. Wilson?" On the other side of the coin, you can ask: Why not 72 years? as Mr. Leadbeater said.

It is a compromise. I think it is a good compromise. I think we can live with it. I would suggest the acid test of the proposal before you is: What reasonable genealogical or historical research does it not permit? Is there any reasonable genealogical or historical research which, under this proposal, would not be permitted? If that test is passed, then I think that, perhaps, the acceptability of the bill as it is formulated is a reasonable one.

Senator Murray: If and when these amendments materialize, we will speak to them.

Senator Cordy: Thank you for appearing before us and giving us information on the bill in front of us.

Are there differences in the laws that governed the censuses of 1906, 1911 and 1916? Initially, I thought there was no difference, but it then became somewhat murky.

Mr. Fellegi: Senator, I am not a lawyer. To the best of my knowledge, there is no legal difference between those three censuses. There is a legal ambiguity concerning the three of them which this bill would settle. I believe that is one of the objectives of the bill.

Senator Cordy: Which information will be available to historians and genealogists 20 years after a census and which would be sealed for 92 years?

Mr. Fellegi: That would include anything other than personal information that goes beyond tombstone information, i.e., name, address, occupation, country of origin and a few other things, essentially anything that is not personal and is in the public record and might be a reasonable object of historical research.

Senator Cordy: I understand with regard to name, address and that kind of thing. Would the year of immigration or the country from which a person immigrated be considered tombstone or would it be material that could not be published?

Mr. Fellegi: Tombstone information would be defined by regulation. It is not in the bill. This is something I can only speculate about in terms of what I would recommend if I were asked by the government of the day, but I would say that country of origin and year of immigration would be tombstone information.

Senator Cordy: So it could be published within that 20-year period?

Mr. Fellegi: Yes.

Senator Cordy: With regard to the opt-in/opt-out feature, you gave Rogers Cable as an example. I very well remember Canadians being very upset with the negative option that Rogers presented. However, in that case there was no paper in front of people through which they had to opt in to the program. They actually had to make a phone call to opt out and many people were not aware of what was happening with Rogers Cable. If you had a census paper in front of you, the opt-out clause would be right there for you to see. You would not have to make a phone call.

I am not sure that the example you gave is appropriate in the case of census data. Would you not agree with that?

Mr. Fellegi: No, I would not, because census forms are typically filled in by one person in the household and that person may not ask the other members of the household what their desire would be.

Senator Cordy: The head of the household could also potentially opt out for other members without giving them knowledge of that.

Mr. Fellegi: Whether the decision is to opt in or to opt out, the fact remains that not everyone answers for himself or herself because typically one person in the household fills out the census form.

Mr. Leadbeater: Are the issue of consent, be it positive or negative, and Mr. Fellegi's promise to engage in a publicity campaign not indications that we want this database not to be degraded? We want research to be allowed eventually. Whether you choose 112 years, 200 years or 300 years for researchers, surely at some point you want a full database to be accessible to the research community, but this bill says that forever it will be degraded by virtue of lack of consent. Whether it is worded positively or negatively and whether or not Mr. Fellegi does a great publicity campaign to encourage people to do it is not the point. The point is that this is an important research base and we should not ruin it for future researchers. In 200 years, senators may be regretting that the database has been degraded.

Senator Cordy: How effective would the data be if 65 per cent or 80 per cent of people opted in?

Mr. Fellegi: There is two ways of using the database. The entire database is available for any research, historical or otherwise, 200 years later. The question is whether nominal information is available for research if a person, at the time that he or she gives the information, does not want that information to be made available. The statistical contribution of that person to the totals, averages, aggregates or the community profile is not at issue. That will be 100 per cent available. The issue is whether personal details with a name attached to will be available if the person, when he or she provides the information, does not want it ever to be made available.

The Chairman: Senator Milne, to be clear on the second issue, there are three options on the table. One is no clause at all, that after 112 years everyone will automatically be included. One is the bill clause, which requires an opt-in. The third is the amendment, which we have not which, which would be an opt-out.

Am I correct on that?

Mr. Leadbeater: There is a fourth option, which is allowing the consent to work, but only between 92 years and 112 years.

Senator Milne: Mr. Fellegi, for clarification on the record for the future, there are many groups across Canada currently doing indexing on census records. These volunteer groups will be absolutely essential to the new plan of the National Archives and the National Library for their genealogical centre. They intend to tap into the work of these volunteer groups. These people are indexing census records including things like nationality, year of naturalization and relationship, and they are not doing it for their own genealogical research purposes. Under this bill and the draft regulations, would indexers be able to continue this work?

Mr. Fellegi: Yes, after 112 years.

Senator Milne: Not before 112 years?

Mr. Fellegi: I have not seen such indexes, so I will be careful in answering. If the index is to result in public availability of names, addresses, et cetera, without restriction, then the current bill proposes that that information be made available 112 years after a census. Access to an individual searching his or her roots, or to an agent acting on his or her behalf, would be given 92 years after the census, which is what the bill currently before the Senate contains.

Senator Milne: That will put a severe crimp in volunteer indexing projects across this country, unless they could be defined as indexing by historians and sanctioned by the National Archives as a historic project. It is almost impossible to find one's ancestors from census information unless there is an index.

Mr. Fellegi: If there is, I have not thought about it, senator, this is a new angle. If the index were to be a totally public document without restriction, the bill as submitted would not permit that. However, if the bill were amended as proposed, facilitation of genealogical research would be in the mandate of Statistics Canada. Statistics Canada could then undertake, under contract or whatever, but under the Statistics Act to prepare such an index to be made available for those who carry out genealogical research in order to facilitate such research where the result of that research, when you have access, is subject to the restrictions between 92 and 112 years of this proposed legislation. To be clear, we could then, under the Statistics Act, facilitate the preparation of such an index. The index as such would be available for genealogical purposes, as defined in this proposed legislation.

Senator Milne: That is a broad and generous offer, Mr. Fellegi. This might cost more money than anticipated. That is a massive undertaking. Mr. Wilson, what is your opinion?

Mr. Wilson: We believe there should be a way under the bill as proposed to carry this out as long as this does not disclose more than tombstone information that would be defined in the regulation. We think that this bill is sufficiently flexible to enable that to happen.

Senator Morin: Mr. Fellegi, is personal health information gathered within the census?

Mr. Fellegi: Recent censuses address disability information.

Senator Morin: Would this bill apply to the health surveys that you are talking about every two years; is that correct?

Mr. Fellegi: That is correct.

Senator Morin: That information would remain absolutely confidential outside this bill. There would be no way that anyone could obtain information concerning the health survey; is that correct?

Mr. Fellegi: This bill addresses the census uniquely.

Senator Morin: When you refer to medical information, could you give me an example of how precise can that be? We were talking about the possibility of mental illness earlier. Could there be other forms of disease that could or have been inquired about?

Mr. Fellegi: May I ask my colleague to answer that?

Senator Morin: It is not such an important question, but go ahead.

Mr. Mike Sheridan, Assistant Chief Statistician, Social, Institutions and Labour Statistics Field, Statistics Canada: Honourable senators, in the case of the census, the question that is asked is whether this person has a long-term condition or health problem that affects the kind of activities that they could undertake with respect to work with respect to recreation and to performing daily activities. There are no specific details as to the cause or nature of that; it is more or less an aggregate screening question.

Senator Morin: Is there a possibility that, in the future, personal medical information may be inquired about?

Mr. Sheridan: That could be the case, depending on the requirements and the sort of information that is required.

Senator Murray: There was in the past, I take it; is that correct.

Mr. Sheridan: In the past, those questions were asked, yes.

Senator Morin: Therefore, if the amendment went through, we would be rendering health information public without the specific approbation of the person involved, is that it? Right now, there is no way that could be done without the amendment.

Mr. Sheridan: If the amendment were put forward, you would understand that that particular individual had some sort of physical condition or health problem that would not permit them to fully engage.

Senator Morin: It is a possibility that, in the future, there might be more personal and sensitive information in the census. This could be made available to other people at a later date, but without the specific approval of the individual if the amendment went through; is that correct?

Mr. Sheridan: That is correct.

Senator Morin: It is a matter of information.

Mr. Sheridan: I would say it is possible.

Senator Roche: Mr. Chairman, I wish to record my respect for the three institutions that are represented here by the three witnesses. I would be comfortable if the three were in agreement with the bill. However, I am nervous because there is not an agreement. Thus, I direct my question to Mr. Leadbeater. I will try to be as specific as possible. Mr. Leadbeater, if the bill is not amended, can you and your office live with the bill as it represents a compromise of the discussions that have gone on? Can you live with the bill without amendments?

Mr. Leadbeater: We think that the compromise is not worth it. The compromise for opening the historical records forever degrades the census database for researchers into the future is not worth it.

To that extent, we think that it is bad public policy. For the sake of a consent that is not available to any other personal information in government, 20 years after death, and in the face of a lack of evidence, this process would degrade the census.

Senator Roche: Do you label this a bad bill?

Mr. Leadbeater: Yes, we do.

Senator Roche: Mr. Leadbeater, if the bill were amended as has been discussed here, would you be in favour of that amendment?

Mr. Leadbeater: That is correct.

Senator Roche: Apparently there will not be unanimity on the committee concerning the amendment. Honourable senators must then make a choice. Is there any way that you could suggest an amendment that would find full favour here and that would carry forward the integrity of the bill?

Mr. Leadbeater: The way that might be done is simply for full access to future censuses. Move the date out farther. You could pick 150 years or pick another date. I believe that everyone agrees that, at a certain point, the privacy interest diminishes to zero with the passage of time.

Senator Roche: Do I understand you correctly that you are saying that if you move the date out further through an amendment that that would meet your needs?

Mr. Leadbeater: Objection to public access to future census material would disappear, the same as the privacy interest disappears.

The Chairman: I wish to thank the witnesses.

Our next panel consists of Mr. Watts and Mr. Cook. They are both here as I understand it. I would ask our witnesses, since they have heard the discussion, to be as focused on the two points that are before us as possible.

Mr. Watts, please proceed.

Mr. Gordon Watts, Co-Chair, Canada Census Committeee: Honourable senators, this is the second time that I have had the honour to appear before this august body, the first being in September 2001 when I was here to support Senator Milne's Bill S-12.

I am here today for a similar reason, to seek to support a bill that would ensure the continued release of historic census records following a period of mandated closure. I seek to support a bill that would ensure that release on the same unrestricted basis that 240 years of census records have already been released to the public.

Bill S-13 falls short of providing that unrestricted access. It places conditions on access not envisioned by legislators of the early 1900s or those debating Bill C-43 from which were born both the Access to Information and Privacy Acts from 1980 through 1983. In some ways, Bill S-13 resembles the so-called compromise solution of Statistics Canada that was soundly rejected by genealogists and historians. It is my hope that through submissions by myself and others you will be convinced of the need to make a number of amendments to this bill.

Prior to appearing here, I sent in a written submission. In that submission, I called upon the committee to remove any and all restrictions regarding the 1911 and 1916 censuses, to remove the 20-year extended period beyond the mandated period of closure for subsequent censuses, and to remove any need for an undertaking. My written submission goes into more detail than time permits here. I trust that the committee will give serious consideration to the points made in it.

In my written submission, I suggest the removal of, or at least serious amendment to, subsection 8 that attaches condition to release of future census. It is to subsection 8 that I will address most of my remarks here.

Subsection 8 is essentially an informed consent provision. It is an opt-in requirement for future censuses that would entail every person participating in the census to give individual consent for their records to be retained and made accessible after 92 years. Experience with opt-in circumstances has shown that many people simply ignore such check box options and leave them blank. The government typically views empty check box options in a negative manner, and many persons not having any particular feeling about the issue one way or another, not having responded to the questions, would have their records excluded.

In the modern census, the head of the household typically fills out the census forms, including information regarding minor children. Does the head of a household have the right to make a decision on opting out on behalf of those minor children? What about the case when a head of household opts out for minor children who, given the choice themselves, would choose to have their records retained for future access? If a minor child reaching the age of majority wished to change the opting out done by a parent, it would not be possible to do so. The right of that child would have been pre-empted. Does the head of household have the right to make a decision on opting out on behalf of visiting relatives or others, including servants and employees? Does the head of an institution filling out a census on behalf of inmates of that institution have the right to decide for them whether to opt out or to retain their records for future access? Presumably the records of those that were opted out would be destroyed, making it impossible for anyone having opted out to change their mind. The alternative is to keep two sets of records, one that is complete and another with non-approved information excluded.

The expert panel appointed by Industry Minister John Manley in November 1999 did not recommend that consent be sought for future release of census records. They felt it sufficient to simply advise respondents that their information would be released in the distant future. Public opinion data gathered on behalf of the expert panel suggested that the vast majority of Canadians are untroubled by this prospect and would not consider it an impediment to response. The expert panel was not convinced that the provision of consent as used in the 2001 census of Australia would achieve an adequate result in Canada. The notion of group consent, whereby the individual completes the household census forms provides consent on behalf of all household members, is not a form with which Canadians are familiar, nor is it founded in Canadian privacy law and practice.

The 2001 census of Australia included for the first time a question that allowed respondents to have their census return microfilmed and publicly released in 99 years' time; 52.7 per cent said "yes," 31.9 per cent said "no," and 15.4 per cent left the question unanswered. Unanswered questions were recorded as a "no" vote.

A result such as this, with only 52.7 per cent answering "yes", would render the records useless for any scientific or academic, historical research. It would deprive a large number of genealogists of the future any information regarding us, their ancestors. In most countries where records of census are released to the public after a period of closure, requesting permission from respondents for future release is not the norm.

We do not view a check box option as being either necessary or desirable. Such an option would result in a fragmented history, possibly to the point of making the records unusable for any scientific, demographic research of the future. If we are forced to accept a check box option, that option must be an opt-out choice. Information for those who do not respond to the option or do not specifically choose to opt out must remain in the records for future access. In that manner, only those who have consciously made a choice not to allow access in their records would be excluded.

Mr. Terry Cook, Professor, as an Individual: Honourable senators, I am pleased today to represent formally the Canadian Historical Association and the Association of Canadian Archivists and to summarize for you our bilingual brief as distributed.

Professional archivists and historians are dedicated to the preservation of authentic and accurate records relating to Canada and to their use to discover who we are as a nation, as a people, as a group, as families and as individuals.

We jointly applaud the dedicated leadership of Senator Milne and the non-partisan support of her colleagues to this point in promoting the release of the historical census records to all Canadians. While our two associations want to be here today to indicate our support for the general intent of Bill S-13, we are also here to help you improve the bill, or at least put some ideas on the table to shape the forthcoming regulations. Accordingly, we are proposing three amendments, with a fourth as a fallback position, one for each of the three categories of the censuses covered by the bill.

For the censuses of 1911 and 1916, as has been said by others, we believe that the censuses of 1911 and 1916 should be treated in exactly the same way as those for 1871, 1881, 1891, 1901 and 1906. We believe there is no legal ambiguity for any census records created before the Statistics Act of 1918. Exactly as in the release of all the earlier censuses, these two censuses, 1911 and 1916, should be subject only to the Privacy Act regulations that authorize full release without restriction 92 years after the census is taken.

We believe, too, that there is no moral ambiguity against such a release. The expert panel on the historical census found no evidence of any alleged promise of confidentiality made by the Laurier government to Canadians about census data for these censuses. Millions of Canadians, as has been noted, have used the historical census records for several decades without a single complaint being filed with the Privacy Commissioner. That includes the release of the 1940 and 1945 census of Newfoundland.

Our first amendment, therefore, reads as follows:

That the 1911 and 1916 censuses be removed from the proposed regime set forth in Bill S-13 for the later censuses of 1921 to 2001, and that these two censuses be released without restriction after 92 years.

We have suggested wording for that in Appendix "A" to our brief, in both English and French.

For these censuses from 1921 to 2001 inclusive, we recognize that a legal ambiguity exists between the wording of the Statistics Act of 1918 and the intent and wording of the National Archives of Canada Act and the Privacy Act. We applaud the intent of Bill S-13 to remove that legal ambiguity. That removal, however, should result in placing the 1921 to 2001 censuses on exactly the same legal footing as the censuses from 1871 to 1916 -- release without restriction after 92 years. This will restore the balance between privacy and access achieved by parliamentarians in the 1980s. We see, therefore, no reason for the extension of the period of unrestricted release by 20 years, from 92 years to 112 years, nor for any undertaking to be made by researchers using the census with limitations during this new 20-year period.

Our second proposed amendment, therefore, reads as follows:

That Bill S-13 should drop all references to a 20-year period of limited and restricted release and to any researcher undertakings and their monitoring. Our third point and most serious concern is with the imposition of a consent clause to allow transfer of post-2001 individual census records to the National Archives. This sets a dangerous precedent, as Mr. Leadbeater said, that would potentially undermine Canadian history and citizen rights. This linkage of consent and archival transfer for eventual disclosure is explicitly denied in the European Union's very tough privacy legislation, and it contradicts Canadian federal practice and precedent. Here we have one of those first principles at stake.

A basic privacy principle asserts that sensitive personal information collected from citizens for an identified administrative purpose, say Purpose A, shall not be used for another separate administrative purpose, say, Purpose B, without the citizen's informed consent. We agree 100 per cent.

We strongly disagree, however, that the transfer of a portion of government records created for purpose "A" to the nation's archives to document historically purpose "A" is, in fact, the separate and new purpose "B." It is rather a continuation of purpose "A." That is what the European Union says. That is what Canadian practice has been.

Consider the use of the records of purpose "A" of an auditor investigating the financial integrity of purpose "A." That is considered the consistent use of purpose "A", not a new purpose "B." Similarly, the transfer to an archive of a portion of the records of purpose "A", that is the census, is consistent with why the census was collected.

The Canadian precedent under the Privacy Act has been to inform citizens that a portion of their personal information collected on a government form under purpose "A" may be transferred to the National Archives of Canada, but their consent for this transfer has never before been required. Neither Great Britain nor the United States has such a consent clause upon which nations Canadian census-taking has been historically patterned.

We urge honourable senators to consider the no doubt unintended consequences of this unprecedented consent clause. Records and archives are not just about underpinning historical, genealogical and heritage research. They are also about protecting the rights of citizens and ensuring the long-term accountability of government.

Once established, the consent clause in jurisprudence, as a precedent in Bill S-13, will surely be insisted on by privacy advocates for other case level records that contain far more sensitive personal information than does the census. Records that now form the backbone of the nation's historical archives.

The Chairman: I realize you are reading your text verbatim. Can I ask you to summarize it? Otherwise, we will use all our question time with your reading.

Mr. Cook: Fair enough. Canadians, such as Aboriginal people, immigrants, those subjected appropriation, have used the records in personal information banks in the National Archives of Canada as the basis of their rights. If they had to consent to the transfer of such records, if this precedent is put in place, then those records would not be available in the national archives. Therefore, those citizens and their descendents would not have the recourse to the records.

Canada's reputation as a fair and just nation is based on being able to settle those grievances from the past. You must have a reliable archive, that is, one chosen by archivists but rather than one that citizens have been able to impact. If citizens can say, "no, I do not want that transferred," they have tried to predict the future and no one can predict the future uses of those records.

As Mr. Fellegi, we are concerned about the statistical sensitivity of the census. In his case, it is the current census. In our case, it is the historical census.

Therefore, our third amendment is that clause 8 of the bill end with the words "be examined by anyone" and that the rest of the clause relating to any consent be removed from Bill S-13.

If, however, the Senate declines this recommendation, we urge the Senate, as a fallback position, to amend clause 8 from an opt-in negative default to an opt-out and a positive default. We have heard the reasons, so I will not repeat them here.

There is suggested wording as to how that could be done attached as appendix "B" to my report.

Thank you on behalf of archivists and historians for considering our ideas. I hope that you will accept our three amendments.

Senator Murray: I thank the witnesses for their presentations. I am certainly familiar with Mr. Watts' position. He has been prolific in writing on previous bills and so forth. We are at first principles, and we have a fundamental disagreement about the value that one places on privacy and for how long.

This country needs an amendment to the Charter of Rights and Freedoms to entrench the right to privacy. Our chairman would know that Mr. Trudeau and Mr. Chrétien as Justice Minister thought about that at the time and then thought better of it. In fact, they promised it at the time and then thought better of it. We should revisit that subject.

Senator Milne: Mr. Cook, you talked about the potential future damage to people being able to prove or not prove Aboriginal background. Can you give us a specific example of how this would adversely affect someone?

Mr. Cook: I go into that matter in the written brief. If you were the parent of an Aboriginal child who was being taken away forcefully from you to a residential school, there would be a form to allow that. If at the end of that form, there were a check box seeking consent for this record being part of the historical records, most people would say, in a fit of temper, "I am not here to help the government who has taken my child away against my will to help the historical archive, I check no." Yet that Aboriginal child would use that record as the basis for their claims down the road.

The Japanese Canadians in the Second World War, Inuit children and hundreds of other examples where such records have been used. No one can predict those uses. Most people who are in those situations where they saw themselves being put upon by the state would not be inclined to help the state and would check "no." That is why we consider the consent precedent a bad one.

Senator Morin: Mr. Watts, what do we make of the rights and opinions of approximately one-third of Canadians who do not want this information to be made available in the future according to your own figures? You said there had been a recent poll.

Mr. Watts: I am sorry. That was not to do with Canada; that was to do with the 2001 census of Australia.

Senator Morin: Let us presume that it would be the same, that there would be one-third of Canadians here who would not want the information available made available in the future.

Mr. Watts: Senator, that has not been demonstrated.

Senator Morin: Let us say it is 10 per cent or 15 per cent. The figure is not important. I was just giving this as an example. What about those Canadians who, for all sorts of reasons, want the information they give to be really confidential.

I do not want information made available in two years or 100 years. This is my personal information; it is really mine. Certainly it does not belong to the state, or it does not belong to anyone else. If there is one thing that is mine, it is my own personal information. I do not want it to be divulged in 200 years.

Mr. Watts: Since I became involved in this matter some five years ago, there has been no demonstrated evidence that anyone has objected to the release of their information after a period of closure. In 1999, there were an estimated 620 million people in Canada, the U.S. and Great Britain who had been enumerated without a single recorded complaint about records being available after a period.

Senator Morin: Why is Australia so different?

Mr. Watts: Australia has traditionally destroyed their records immediately after statistical compilation mostly because of their background of convicts.

The Chairman: Senator Milne thinks she knows why Australians are different.

Senator Milne: It was originally founded as a prison colony. For at least 100 years, nobody wanted to be able to say that so and so's ancestor came here as a prisoner. Now they realize they have destroyed the history of the ordinary people in Australia, and they all are anxious to prove that they are descended from the original colonists.

Mr. Watts: In 1999 an estimated 620 million people were enumerated without a complaint. In my opinion, that was a low estimate.

Since that time, 382 million people have been further enumerated in those countries. For the more than one billion people that have been enumerated, there has not been one recorded complaint.

Senator Morin: They do not have consent.

Mr. Watts: There has not been one single recorded complaint.

Senator Morin: That is without consent.

Mr. Watts: Yes, but because they have it without consent, does not necessarily mean there could not have been complaints made. There is not one recorded complaint.

If people are against what we have been trying to do for the last five years, where is the public outcry from it?

I would like to ask the people that say certain questions are intrusive, and no doubt they are in contemporary concerns, to name me one thing in those questions that could harm any individual 112 years after the fact. There is not one thing in those records that could not be found out in another manner.

Senator Léger: It is just a detail to questions. Mr. Watts, from your questionnaire I understood that when there was an unanswered question, it was considered as a no vote.

Mr. Watts: That is correct. In Australia, and that is generally the way that unchecked options are viewed in any government poll, unanswered areas are viewed as negatives.

Senator Léger: Is that ever questioned?

Mr. Watts: Not in so far as the census is concerned.

Senator Léger: We may not fill in certain areas not because we may be against the question, but because we may not understand the question. Thus, we may leave a blank that automatically becomes a no or a negative.

Mr. Watts: Governments generally view unchecked options as a negative. I agree that many people would not check these boxes because they do not understand it. In the way that Bill S-13 is worded, anybody not checking that option would be excluded from future release.

Mr. Cook: To follow-up on that last question, that is why our fourth amendment suggested turning that around so that an unchecked box would be considered a YES.

The Chairman: Thank you. I wish to ensure that I understand the issue. There are three separate questions on the table: First, what happens with respect to the 1911 and the 1916 censuses? We had five witnesses and four of them would treat 1911 and 1916 in the same as 1906. The only person who would not treat them the same is Mr. Fellegi, the Chief Statistician.

Second, should the 92 years be extended to 112 years? That is to say, should that extra 20 years be added? No one gave a reasonable explanation for adding the 20 years. I do not know why it is there but that question was raised. That was a minor issue, in some ways. Third, and the one in which there is the most significant disagreement, should, as the bill proposes, there be an opt-in provision or should it be changed to an opt-out provision? That is to say, you have to consciously decide to release the data and whether that should be switched to an opt-out provision. Presumably, more people prefer to opt out than to opt in. I have difficulty with deliberately changing questions in order to get the answer you would like to have because it seems that we think that more people will not understand what they are doing.

The other alternative in that issue is whether there should be no consent required. That was supported by the two witnesses before us and also by the information commissioner. In order to make a judgment as to whether we attempt to resolve the issue today or continue, do you think that is a fair summary of the three questions? Could I ask, on each of those, roughly where we stand? We will do a straw vote, I guess.

On the issue of releasing the 1911 and 1916 census -- treating them the same as the 1906 census, which was supported by everyone but Mr. Fellegi -- is anyone opposed to that?

Senator Morin: I support Statistics Canada entirely on this. May I say why?

We are dealing with a number of common goods, if someone supports historical research. The greatest common good, by far, is the integrity of our census. There are few things, save welfare, economic development and health, in our country that are more important than the census. Statistics Canada is a success story in Canada and the fact that all the historical societies value this information. The integrity of our census is extremely important and is far more important than the other concerns. That is why I support Statistics Canada 100 per cent.

Senator Murray: Allow me to make a general comment about this. Most of us have some idea of the extremely difficult background to this bill. At second reading, I said that I would support the bill, and I do not retract a word of that undertaking; I will support the bill. I have some understanding of how difficult it was to achieve the compromise that is in this bill, between the various interested people in the government. As with any such enterprise, they have succeeded. There are items in the bill that would like to change and I indicated that at second reading and again today. I have no intention of trying to do that because I understand the difficulties in getting to this point. I congratulate those who have done it and I am prepared to see the bill through as it stands.

There is the specific matter of the 1911 and 1916 censuses. When the government released the 1906 census, they said it was done because of the special nature of that census -- it was only regional and it was only tombstone information. With regard to the 1911 census, it is much more extensive and we were told that by Mr. Fellegi, the Chief Statistician, today. I am not sure whether the 1916 census was identical to that of 1906. In any case, the reason for this bill is to cover everything post-1906.

The Chairman: That is correct.

Senator Murray: I have some difficulty in beginning to piece it together in the way that it is proposed here.

On the second matter, I agree with your position on this. More to the point, it raises a question of another witness that we have not heard from -- the Privacy Commissioner of Canada, George Radwanski.

The Chairman: When you said "the second matter," you mean the issue of opt in, or opt out, or no consent at all.

Senator Murray: That is right. Again, it raises the question of the witness we have not heard from -- the privacy commissioner. He was invited to appear but he declined to do so.

The Chairman: Mr. Radwanski was not in town but he said that he did not mind the hearing going ahead without him.

Senator Murray: He did not send anyone in his stead and he did not send a letter.

In consideration of the robust view the privacy commissioner took on Senator Milne's private member's bill, I would like to know whether he has any serious objection to any part of this bill. If he does not, I wish that he would write a letter to the committee to state his stand.

In view of this second amendment, in respect of the opt in, opt out and no consent provision, I recall that he took a strong view of a similar provision in Senator Milne's private member's bill. That would have deemed that everyone was deemed to have given his or her irrevocable consent. Mr. Radwanski waxed long and eloquent on that subject.

The Chairman: Well, he waxed long.

Senator Murray: In any case, I would like to hear from him, either in the flesh or in writing, if that amendment gets on the table.

Senator Roche: I would like to put this in one sentence. I think if there are amendments to put before us, then we need more time to consider the amendments. This is a more complicated matter than first meets the eye. If you were amenable to my suggestion that we have more time to consider the amendments, Mr. Chairman, I would recommend that we invite our research staff to do a compilation and interpretation of the amendments. Not necessarily to make a recommendation, but to clarify precisely how the amendments will affect the bill as it is written, so that we can have the benefit of that analysis. I would then be more comfortable coming to a decision as to which way I personally should vote. If I had to vote today, I am distinctly uncomfortable, given the split that we saw in the witnesses and a certain feeling I have that, with a bit more reflection, it will be possible to satisfy the different interests at play.

The Chairman: Does anybody else want to make any comments?

Senator LeBreton: I would support that because, in terms of his testimony in S-12 was quite compelling.

Again, the point that Senator Morin makes, I want to be sure, because I think, especially in this day and age with all of the invasions of our privacy, that the census is one thing that Canadians look to as something that is sacrosanct. I would like to see the amendments and how they impact, because at the end of the day, most of us would like to see the bill passed. However, I think we need more time.

Senator Milne: I was going to push for carrying on with clause-by-clause for today, but in view of what I am seeing around the table, perhaps we should not. Perhaps we could get the amendments officially before us before we do so.

Senator Morin: Who is moving the amendments?

Senator Cordy: I am moving two amendments.

The Chairman: I am happy to do that. My usual lack of procedural nicety would have been that they were already before us, but I am happy to have Senator Cordy move the amendments. I am in complete agreement with Senator Roche and Senator LeBreton in not making a decision today.

Senator Cordy: The first amendment deals with the fact that 1911 and 1916 should be dealt with in the same manner as the census release of 1906. There is a lot of replacing, but it is basically because if you change the date in the first sentence, then you have to make a lot of changes. The second one is replacing clause 1 on page 2 at the top.

The Chairman: Could you explain the intent?

Senator Cordy: The amendment would be to change the opt-in, opt-out aspect.

Senator Morin: Are we leaving some consent then? There is no amendment that would completely remove all form of consent on this bill.

The Chairman: That is right. The two amendments that have been introduced, one of which says to treat 1911 and 1916 the same as 1906, rather than "from 1918 on". The second replaces the opt-in consent clause that is currently in the bill with an opt-out clause. Senator Morin's point is correct; there is no amendment on the table to completely remove the consent.

Senator Cordy: It also says 92 years.

The Chairman: That deals with the 20-year question.

What I would propose is do as follows: First, we will work with the staff and attach, as an appendix, the legal text. We will give you a layperson's description of what the intent of the amendments is. Second, so we have a written record, I will write to the privacy commissioner and, if I do not get a reply in short order, I will phone and ask talk to him. I think it is important, in light of the amendments, that the privacy commissioner outlines his position. I do not mind if he does not appear in person, but I would at least like written correspondence from him outlining his position. If you are all agreed, this issue will be left until some time after the break. However, we will not jam it. We will give the committee time to look at the document that will be prepared by the staff. I will go over it before we send it out and make sure we have a reply from the privacy commissioner before we reconsider the issue.

Thank you very much for coming. Thank you also to all those who were here last night for what was, if may I speak personally, an emotionally draining experience. Last night, we began our study of mental health. We had four witnesses, effectively telling their own stories of mental illness or of having an immediate member of their family that was mentally ill. It was incredibly moving. By the way, with the approval of the witnesses, they were only referred to by their first names.

We will reconvene after the break and address this issue some time in the latter half of March.

The committee adjourned.