EXTRACTS FROM HANSARD -- PROCEEDINGS OF CANADA'S SENATE :

Debates of the Senate (Hansard)
1st Session, 36th Parliament,
Volume 137, Issue 112
Wednesday, February 17, 1999
The Honourable Gildas L. Molgat, Speaker



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Access to Census Information
Inquiry-Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Milne calling the attention of the Senate to the lack of access to the 1906 and all subsequent censuses caused by an Act of Parliament adopted in 1906 under the Government of Sir Wilfrid Laurier.-(Honourable Senator Johnson).

Hon. A. Raynell Andreychuk: Honourable senators, I want to thank Senator Milne for calling our attention to the lack of access to the 1906 and all subsequent censuses. It is an issue that requires a public policy debate and government action. I do not pretend to be an expert in this area, nor have I had the time to investigate fully all aspects of this problem. However, I wish to share some perspectives which I believe support Senator Milne's position, and I would add some other matters for consideration.

Population data has been collected from Canadian residents by census since before Confederation. The National Archives of Canada hold census returns from 1825 to 1871 in paper and micro form. These records are available for research purposes. In particular, the censuses of 1891 and 1901 were conducted in accordance with the Census Act, RSC 1886, chapter 58. Section 6 of that act provides as follows:


The Minister of Agriculture shall cause all forms and also all instructions which he deems requisite in respect of each census, to be duly prepared, printed and issued for use by the persons employed in the taking thereof.


Instructions in fact were issued by the minister directing that the information collected be treated in a confidential manner. As these were simply instructions by a minister, they do not have the force of law. As a result, no statutory prohibition against the disclosure of census information existed at that time. However, upon enactment of the Privacy Act in the 1980s, and utilizing section 8 of the Privacy Act and section 6(d) of the regulations, disclosure of census information was allowed 92 years following the census or survey. In other words, the Privacy Act allows for limited disclosure for research or statistical purposes, and takes into account that the information would not be reasonably obtained from another source and that the person asking to see the information undertakes not to subsequently disclose the information in any way that can identify the individual.

Therefore, all of the censuses, up to and including the 1901 census, allow for a reasonable disclosure of information to reliable sources but maintain a high degree of confidentiality and privacy for the individual whose information is being used. I believe that the government, through the Privacy Act, struck the right balance between privacy rights and national interest.

In 1906, the Census and Statistics Act was enacted for a population and agricultural census to be conducted in the provinces of Alberta, Saskatchewan and Manitoba. There are provisions embedding the rules and forms developed under the act, giving them the force of law. An Order in Council, passed in 1906 in respect of the act, imposed the obligation of confidentiality on the census and statistics office established by the act under the authority of the Minister of Agriculture. A similar Order in Council with respect to confidentiality was passed in 1906 and was also passed in 1911. The 1911 census data, like that of the 1906 census, is sealed permanently from being disclosed under the 1906 legislation.

In 1918, the newly proclaimed Statistics Act created the Dominion Bureau of Statistics under the Ministry of Trade and Commerce. The Statistics Act set forth the confidentiality provisions that created a permanent seal on information contained in all subsequent censuses. The 1918 Statistics Act also repealed and replaced the 1906 Census and Statistics Act. This raised the question of whether the effect of the 1906 confidentiality provisions were altered when the 1918 act was repealed.

My understanding is that the government is relying on the Interpretation Act of 1970, section 35(6), which states:


Where an enactment is repealed in whole or in part, the repeal does not affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed.


Therefore, according to the government's position, for the purposes of the 1906 and 1911 censuses, the Privacy Act does not come into play, and the confidentiality provisions in the 1906 and 1911 census instructions continue to operate.

In this point, I would agree with the government's position that the 1918 Statistics Act and current Statistics Act of 1985 continue a complete prohibition of disclosure of census information from 1918. Further, section 17 of the 1985 act prohibits disclosure of the census information in such a manner that it can be tied to an identifiable individual.

While it is true that the 1918 census act disallows any access to census information on any terms whatsoever after 1918, I question the government's interpretation on whether the 1906 and 1911 non-disclosure provisions were as wide as those of the 1918 act.

If the Interpretation Act as applied states that no rights, privileges, obligations or liabilities are to be affected or extinguished, by extension they cannot be enlarged or added to unless specifically stated, which, in the case of the 1906 and 1911 censuses, they were not.

While the 1918 Statistics Act was explicitly stating complete confidentiality, we have to look at the 1906 statute which, in my opinion, is not so broad. The 1906 Order in Council in section 26 reads in part:


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.


With respect to the 1906 census, one can easily see, putting it in an historic context, that the issue of confidentiality was not one of reassurance or expectation of subsequent public disclosure 92 years hence, but rather that no governmental officials could use that information for taxation purposes or other governmental purposes. One need only remember that this was the era of the introduction of personal income taxes and the beginning of government intrusion, and I use that term broadly.

In 1905, Saskatchewan and Alberta were created as provinces, and a new level of government produced an anxiety about governments in general in what was once the North-West Territories. Immigrants entered this territory often illiterate, poor and weary of government officials. Privacy was not the concept it is today, but rather the issue was a fear that government officials would use the information for taxes or other governmental purposes.

The 1906 census questions were geared to collecting information clearly accessible for taxation purposes. The 1906 act was more preoccupied with the capacity and conduct of those taking the information, and transferring and processing it.

It has taken many years to come to today's privacy expectations as we know them. As one constituent from Melville, Saskatchewan, has put it:


Since starting research into our family tree, we have come to realize how important the past is to all of us. Even if only a portion of the data were released to maintain the necessary level of confidentiality that was assured at the time the census was conducted, it would be better than not releasing the data at all.


Therefore, it is of value to emphasize the vast difference between the privacy sphere and social relations of individuals in Canada in the early 1900s and the current expectations. Senator Milne has pointed out that the Privacy Commissioner has indicated that a rigid, non-disclosure is his preference, and that disclosure for the sake of historic or genealogical research is not sufficient to warrant any access.

I believe Senator Milne and Senator Fraser have put the case for historical and genealogical research persuasively, and their comments alone warrant a reconsideration of the total ban on disclosure after 1918. I would, however, wish to add three perspectives to the debates of all censuses from 1906 onwards.

First, immigrants from areas where other information is not available have only the census as a tracing point for their families. Many immigrants have come from war-torn areas where records were either not kept or destroyed. Others have come from areas in the old Iron Curtain where information may be suspect. There is no alternative to the census and immigration records for information. It is equally important to correct these records for historic purposes. This is particularly relevant for 1906 and 1911, but it is equally relevant today when one thinks of Rwanda, Bosnia and Kosovo. What will the ancestors of these new immigrants be able to trace of their histories in 100 years' time? Think of 1906 and 1911 when there were no records and no sophisticated record keeping as we know it today. We know that immigration officers and census officers took the information as they best knew it. They were qualified, but from today's perspective, we know that they did not understand languages, nor were they well trained in our standards to take these records. Are the census records really kept private because of the individual, or is it a privacy more in keeping with protecting a government system?

Second, I wish to point out that the 1906 census and the 1911 general census are the focus of considerable debate at present. The data could be of particular significance for the families and descendants of European immigrants who may have been caught up in the Canadian war effort in 1914. Immigrants from Eastern Europe who were landed immigrants or Canadians were deemed enemy aliens by the Canadian government and unjustly interned during World War I. Descendants of these persons may have no other records to demonstrate their lineage. We know for a fact that many who were termed "Austrian" at the time considered themselves Ukrainian, Russian, and anything but Austrian. Was the census information used to determine them as enemy aliens? Who took the information from these people? Were they competent and skilled to do so? Did they understand the information they were receiving or are there discrepancies due to language barriers?

Honourable senators, the third and final point I should like to make is that the 1906 Census Act lists the information to be collected. In section 14(a ), it states, that the information to be collected shall be the "Name, age, sex, colour" - and I pause here - "social condition, nationality, race, education, religion, occupation and otherwise..."

It is interesting to note that the term "social condition" was used as early as 1906, and it would be interesting to learn why this term was used. How was it interpreted in the questionnaire? More important, what use did the government make of this information? It is small wonder that today the issue of social condition is being included in human rights legislation, such as in Senator Cohen's bill. When one looks at the factors outlined for collection, discrimination cannot be made on their basis. Why has social condition not been added so that discrimination is not made on social condition? Perhaps the 1906 census would enlighten us on this term and the present-day situation. For these and other reasons, it is important that a public debate take place.

I suggest that two questions must be answered. First, vis-à-vis the public's right in a democracy to know, to what extent should confidentiality be maintained as a double check on a system and for other good and valuable reasons as stated by Senator Milne? Second, where does a democracy draw the line between its need for reliable data and the healthy reluctance to compel citizens to provide detailed information? In other words, by revealing some of the information, even 100 years later, will we get the forthrightness from citizens that is demanded?

Honourable senators, I believe that a better balance could be struck if we also studied to what extent the information required must be taken under a census as opposed to another means. This leads directly into the debate which arose on the long form questionnaire in the last census. A public debate on these competing rights and the balance to be struck must occur, as was the case in Australia and other jurisdictions. All citizens will benefit from an adequate hearing of this issue, and I urge the government and other senators to enter into this discussion.

The Hon. the Speaker: Is it agreed, honourable senators, that this debate will remain in the name of the Honourable Senator Johnson?

Hon. Senators: Agreed.