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EXTRACTS FROM HANSARD
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PROCEEDINGS OF CANADA'S SENATE

The following extracts have been taken from Hansard Records
of Canada's Senate for the 37th Parliament of Canada:

Debates of the Senate (Hansard)
2nd Session, 37th Parliament,
Volume 140, Issue 53
Wednesday, May 7, 2003
The Honourable Dan Hays, Speaker

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ORDERS OF THE DAY

Statistics Act

Bill to Amend-Third Reading-Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Chalifoux, for the third reading of Bill S-13, to amend the Statistics Act.

Hon. Lowell Murray: Honourable senators, for reasons which I explained to Senator Milne already, I was not in my place when she opened debate on third reading of this bill. However, as I assured her, I ran the next morning to the Senate Web site and read her speech carefully in its entirety.

I do not think there is much I can add, either to her arguments for the bill or to the recital of its historical background, which, in the one case were convincing enough, and in the other, so far as I know, completely accurate.

Following her speech, there were interventions, questions and comments on the part of Senator Comeau and the Leader of the Opposition, Senator Lynch-Staunton. Needless to say, I also read those with great care. It is to those matters that I would like to address myself briefly this afternoon.

The points they raised are substantive and important. They are serious matters that I grappled with in considering this bill; albeit, perhaps their considerations led them to a different conclusion on the bill from that which I have reached.

However that may be, I do not disagree with what Senator Comeau said in underlining, as he did, the critical importance of privacy as a right that Canadian individuals enjoy in this society. He disagrees, as I do, with what I take to be - although I am not competent to judge these matters - some kind of prevailing legal doctrine, to the effect that one's right to privacy declines over time and, in fact, disappears with your death.

That may be prevailing legal doctrine, but I do not believe it is right. If it is the state of the law, we ought to fix it - change it and put it right.

Senator Comeau implies, and I agree, that the fact that the government collects personal information on individuals does not then make that information government information. It is still personal information of which the government, for good and sufficient public policy reasons, has custody. The government is, and ought to be, bound to protect the privacy of Canadian citizens on these matters. This information should only be made public in cases of pressing necessity, such as criminal proceedings and the like.

In his interventions, Senator Comeau identified flaws that perhaps exist in two acts, the Privacy Act and the Access to Information Act, that allow for the release of government files 25 years after they have been compiled.

To that, I would add the Personal Information Protection and Electronic Documents Act, which we passed several Parliaments ago. That act touches upon personal information collected about an individual, mostly by business firms, for commercial purposes. I am referring to the information collected about you and me by credit card companies, or the information, for example, that pharmacies collect or have to collect about you or me personally. A provision in that act, which I tried to have removed in a desperate last-minute amendment, makes it possible for the personal information collected for commercial reasons to be released 20 years after your death. I say never. Other than criminal proceedings and the kind of things that need to be demonstrated in court, I cannot conceive of the circumstances in which personal information relating to you, collected for commercial purposes, ought to be released to the public even 20 years after your death. Why should your children and grandchildren have to explain or live with your past conduct or sins, if that is what is in the information? I will not rest easy until I see that provision deleted.

Therefore, I accept the validity and the urgency of the points that Senator Comeau has raised, and I will join with him in the months and years ahead to try to put some of these things right. We have our work cut out for us. Maybe we will be able to enlist colleagues from the other side. Perhaps some of them will volunteer to take up the cause that our former colleague Senator Sheila Finestone championed so passionately throughout her parliamentary career. We may be able to enlist the assistance of the Privacy Commissioner, although he appears not to share my view that the right to privacy should be written right into the Charter. Perhaps that is an impossible dream, but I draw the attention of honourable senators to the fact that in the early 1980s, during the constitutional discussions, both Prime Minister Trudeau and then Minister of Justice Jean Chrétien favoured the inclusion of a right to privacy in the Canadian Charter of Rights and Freedoms.

I accept all that Senator Comeau has said on the subject of privacy.

Bill S-13 relates only to personal information collected by the government in the course of a census. It deals exclusively with the census. A different legal regime applies to census information than to other personal information collected by the government, or so we thought until recently.

The legal situation relating to the census since 1905 consists of regulations passed pursuant to the 1905 and 1906 Census and Statistics Act. These provisions, generally, were written right into the Statistics Act of 1918, and further provisions were contained in legislation of 1948, 1970, 1971 and 1972. In previous debates, I have read the text of some of these provisions into the record, and I will not do so today. In a word, these provisions, regulations and legislation assured the confidentiality of personal data collected by the government for the sake of the census.

That brings me to Senator Lynch-Staunton's intervention, which I recognize and respect as a principled position on his part. However, we must agree that alongside the legal regime that I have described, there were certain other provisions. One was the provision that these censuses had to be transferred to the National Archives "for future reference.'' Another was the 1983 Privacy Act, providing as it does for the disclosure of personal information in the hands of the government after 92 years.

The question with which several generations of parliamentarians and others have grappled is this: Do these later provisions qualify the previous law regarding census information? Do they overtake it? Do they trump it? No, said the Chief Statistician. No, said the Privacy Commissioner. No, said the Department of Justice, until recently. I should interject that there was a ministers' panel, appointed by Mr. Manley, I believe, when he was Minister of Industry, comprised of, among others, a former justice of the Supreme Court of Canada, Gerard La Forest. That panel had no difficulties with the legal consequences of releasing everything pre-1918, was less certain about 1918 and following years, and felt that, for greater certainty, legislation would be needed.

In any case, the Department of Justice has done, as I said at second reading, a 360-degree flip-flop in its opinion.

Let me read for honourable senators the statement of the Chief Statistician when he appeared before the Standing Senate Committee on Social Affairs, Science and Technology on Wednesday, April 9. It will give senators a good idea of the predicament in which Dr. Fellegi, the Chief Statistician, found himself. He says:

"...one cannot ignore that there are conflicting legal opinions. In fact, it might well be that the legal opinion would say, everything considered, censuses should be released after 92 years without restrictions. That may well be what the courts decide.

Certainly, the latest legal opinion we have from the Department of Justice says that is the better opinion. ...their latest view is that, as things stand now, from a purely legal perspective, the census may not be fully protected after 92 years. Some clarification is needed."

Now, if that is the state of the law as seen by the Department of Justice, senators will readily understand the predicament that the Chief Statistician found himself in after all the years of stating no to requests to opening it up, which led him to an agreement with the present National Archivist, with the present Minister of Industry, Minister Rock, and with Senator Milne, acting, as she was, on behalf of people interested in genealogy and historical research.

What is the compromise involved here? Let me back up a little. There was a previous compromise a couple of years ago. It involved Statistics Canada and the Privacy Commissioner, who was then Mr. Bruce Phillips, although the consensus agreement was endorsed by his successor, Mr. Radwanski. In a nutshell, the compromise provided for access by individuals to the personal data in order to trace their family histories under strict conditions, and it provided access for historians in respect of peer-reviewed research, also under strict conditions.

When I spoke to Senator Milne's private member's bill, Bill S- 15, that she brought in December 1999, and her private member's bill, Bill S-12, that she brought in February 2001, I opposed those bills but said that I could and would support a bill that contained the elements of the compromise agreement to which I just referred. I believe that Bill S-13 contains those elements.

Mr. Radwanski, the Privacy Commissioner, is not satisfied on that score. He says that the conditions in the new compromise agreement reached by Statistics Canada, the government, the archivist and Senator Milne are not as strict as they were in the original agreement, and he points out that the present agreement, as reflected in this bill, provides unrestricted access after 112 years.

The Chief Statistician was also a party to the previous compromise, and he supports the new bill. While he agrees with Mr. Radwanski that some ground was lost in the new compromise by the addition of the 112-year rule, he points out that there is a very important gain from his perspective in the new compromise. That gain is the requirement for informed consent henceforth. Informed consent means that you will have to sign your consent for the eventual release of this information, failing which it cannot be released. That provision was not present in the past compromise agreement that Mr. Radwanski supported, which is very important.

Again, I draw the attention of honourable senators to the testimony of Dr. Fellegi on that point before the Standing Senate Committee on Social Affairs, Science and Technology on April 9, 2003. He said:

"That is the difference between the two comprises. There was ground given on the access side and ground given on the protection side. On the protection side, it is informed consent for future censuses. On the release side, it is the 112- year and beyond unrestricted access.... That is the difference between the two compromises."

Later, addressing himself without realizing it to Senator Lynch- Staunton, he said:

"... it is very easy to argue on the basis of principles. I could easily defend to not give any ground whatsoever on the confidentiality issue. Protect it forever. Do not compromise. Intellectually it is easy to defend that argument. It is much more difficult to defend intellectually a compromise. However, I fully support this compromise because I realize the value of offsetting public goods even though I am responsible for only one of those two public goods, statistical information. I am not responsible for the other one but I am a public servant and I understand the value of setting public goods. I fully endorse this compromise."

Honourable senators, these are the factors and that is the background that led me to support Bill S-13 for the reasons I stated when it was before us at second reading. These are the considerations and the background that led me to oppose amendments presented at the committee that would have destroyed the consensus agreement and which led me to move that the bill be reported without amendment, a motion which passed over, I think, three dissenting votes from the other side.

Honourable senators, these are the considerations that lead me to maintain my support for the bill at third reading and to commend it to your support today.

Hon. Gerald J. Comeau: My question for Senator Murray has to do with the fact that, as I understand it, the bill now authorizes the government to release, after 92 years, censuses from 1918 on, including the last census. In the last number of censuses in which I personally provided information to Statistics Canada an undertaking was given to me that this information would not be divulged. Through his support of this bill, is Senator Murray accepting that all of the information I provided in censuses that I signed by way of contract with the Government of Canada, which contract assured the confidentiality and privacy of the information I provided, can be released after 92 years, in spite of the fact that I may not wish it to be released?

Senator Murray: Honourable senators, I will make two points in response to my friend. First, all of that information will not be released after 92 years. What will be released is the tombstone information. I could state what tombstone information is, but I think my friend knows what it is.

Second, the reason the bill is being brought forward in this form and why those restrictions are on it is precisely because of the concern that without this bill the state of the law was such that we would have ended up with unrestricted access after 92 years to not only the tombstone information but to all of the personal information required to be given on the long form.

Senator Comeau: I understand that the information that is not tombstone information will become completely public after 112 years. In effect, 112 years from now the confidentiality contract is over.

Senator Murray: As I understand it, there will be unrestricted access after 112 years. However, Senator Comeau will be responding to quite a few censuses in the future and will have the opportunity to refuse to sign the informed consent order. In that case, the public will not get access to any of the information filed about him.

Senator Comeau: One thing has greatly bothered me throughout this entire process. I commend Senator Milne for the tremendous campaign that she and her group have mounted. I understand the importance of genealogical information. I am extremely interested in the tracing of ancestry myself.

The premise of the lobby campaign was that this information should have been released. The letters I received and many of the petitions that were presented in this house were based on the premise that there was no legal restriction. Senator Milne spoke last week about government files being completely open after 25 years. If there were no restrictions on the release of such information, why did we need legislation? If this was only a legal question, why was it not taken to court where lawyers could deal with it rather than having Parliament retroactively, on behalf of the government, break a promise, which is what we are doing with this legislation? This is not a legal issue. This is legislation retroactively breaking a promise, an undertaking of government, with its citizens. If it is a legal question, take it to court and let the lawyers deal with it and earn their dollars.

Senator Murray: Honourable senators, no longer being on the inside of government, it is rather difficult for me to answer that question. However, from the outside, the situation seemed to me to be the following: The government - certainly the Chief Statistician - declined, for many years, to open this information up to researchers, and he was supported in his view by the opinion, at the time, of the Department of Justice.

Since that time, the Department of Justice revisited their opinion in light of the provisions that require that the census information be sent to the National Archives, most of whose material is open to the public, and in light of the provisions of the 1983 Privacy Act that government information generally be released after 92 years. The Department of Justice revisited their opinion and came up with a new opinion that left Statistics Canada and the integrity of Statistics Canada very vulnerable to just the kind of litigation to which my friend has referred.

I do not want to put words in anyone's mouth, but this is my interpretation. In order to avoid a worse outcome, they sat down and did the compromise that is reflected in Bill S-13, and which, for all those reasons, I continue to support.

Senator Comeau: Senator Milne said last week that government files are available to Canadians anyway after 25 years. It had not dawned on me that a file in government archives, somewhere, could be opened up under the Access to Information Act. From what I understand, any Canadian can apply to see files after 25 years, income tax returns excluded. My understanding is that this applies to an application for a student loan or a gun licence, to all kinds of files, those that we know about. However, what would happen with access becoming available to files after 25 years, files we do not know about? That issue might relate to a concern the honourable senator mentioned earlier about the privacy of Canadians. We might want to look at this area.

Senator Murray: I read what my friend had to say about that when he intervened following Senator Milne's speech last Wednesday. I have not had a chance to delve into the relevant statutes to that extent.

I will say that the Access to Information Act, on the one hand, and the Privacy Act, on the other hand, must be read together. That would be my answer to the question in a general way. There is the 25-year rule. It even affects cabinet documents, minutes of cabinet meetings and so forth, as I have learned somewhat to my sorrow or expect to learn to my sorrow. I did not realize that was the case until one day I woke up and saw that all the minutes of the Trudeau cabinet meetings of 1967, the de Gaulle visit, were laid out on the table in 1992, 25 years after the event. Quite a few people who were in that cabinet were still in politics, and their private cabinet comments were put out for the edification of the public.

The Access to Information Act and the Privacy Act will have to be read together. I am very sensitive to the issues that my friend raised, such as applications for student loans, where some of the questions are quite intrusive, and the application for the registration for long guns. That is what I meant when I said that I think we had better get at this in the coming months and years.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): The information that one gives under student loan applications or so many of these other areas is effectively voluntary. One supplies the information if one wants to apply for a student loan. Is it not true that one is obligated to provide the information that is sought by Census Canada, and if it is not given, one could end up in jail?

Senator Murray: Yes, that is true, although I do not think that we should attach any less importance to the privacy of information that is given voluntarily in the course of applying for a student loan or to register one's gun than one does to the information collected on the census.

I think I said in committee that there are penalties. On the very day we were meeting, April 9, I went, as is my custom, to the Web site of the Cape Breton Post and found that a Cape Bretoner had refused to give some of the information required of him in the long form because, he said, "The government has already got that. Various departments have come to me asking for this. I am always filling out forms. To hell with them. I am not giving out any more information.'' The judge told him that that was not a sufficient reason for not filling in the long form census and fined him several hundred dollars and let him go.

Senator Kinsella: Honourable senators, Senator Murray has drawn to our attention a complete change of view in the Department of Justice on this file. I think that change of view spoke volumes to Dr. Fellegi, the Chief Statistician. I think he found himself in the position of almost being abandoned. With the original decision, he had a good margin of comfort.

Would Senator Murray not agree that our Chief Statistician, who is one of the top civil servants we have in Canada, has the main preoccupation of protecting the integrity of the census and that he would not want anything done to diminish the integrity of the census? He had this protection, as it were, within the machinery of government when the Department of Justice was of the original view. Why does the honourable senator think that the Department of Justice made such a radical, 360-degree change to its view?

Senator Murray: Honourable senators, I have no idea. That is the short answer. The longer answer is that they may have been going on an opinion that predated the Privacy Act of 1983 and that they had not really brought it up to date sufficiently. I will give them benefit of the doubt. In any case, they did a major flip- flop. Of course, those opinions are not available to us. Normally, the opinions law officers provide to departments of government are not made public.

Hon. Lorna Milne: I gave them to the Social Committee.

Senator Murray: I gather the opinions are somewhere on file. I just took it for granted that, like all legal opinions, they are not available to Parliament. I did not get a chance to examine them. Perhaps we should do that at some point.

Senator Kinsella: The Chief Statistician testified very clearly that, at the end of the day, he can live with it - indeed, more than "live with.'' He testified directly that he supports the bill as a public servant. I do not know what other position he could have taken.

Perhaps, more important, was the testimony of the Privacy Commissioner. I put a question to him, and I would like Senator Murray's comment. The question was this: When we are dealing with a compromise, such as the compromise agreement worked out by the different players in this case - does not the right in question become the loser? Was that not the testimony of the Privacy Commissioner? The compromise agreement upon which this bill is based is a compromise in which the Privacy Commissioner sees the right of privacy as the loser.

Senator Murray: The Privacy Commissioner made the point in his testimony on April 9 that retroactivity is being introduced here. However, retroactivity was being introduced in the compromise to which he agreed a couple of years ago. The principle is the principle. He is right. Privacy is not as absolute as we thought it was when we had another opinion from the Department of Justice.

As Dr. Fellegi pointed out, in any compromise there are gains and losses. What we lost on one side from the previous compromise, by somewhat lesser conditions, we gained by this provision for informed consent henceforth. Your information will never be released unless you sign an informed consent form. As was pointed out on a previous occasion, that is the process they have in Australia.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I want to remind this chamber that years ago, under Mr. Pearson, the government introduced the social insurance number. We were reassured then that its only purpose was for limited government purposes. I remember Mr. Diefenbaker pointing out that once you introduce such a notion, it will become widespread in no time. That is what has happened to the social insurance number today. It is public. The first question every credit institution, every credit card company or anyone who wants information on you asks is: What is your social insurance number? With the number, they gain access to all your credit information, and more, even though by law they are not entitled to do so. Canadians are not informed by their government that they have a right to limit the information they give.

I sense, in this bill, that we are opening the door for people to come around and say, either later this year or in a few years, "Let us give them the census data right away.'' I will not be here at the time, but I hope my anxieties will be proven false.

I have read the transcripts of the meetings that the committee held. I did not sense much enthusiasm for this bill. The word "compromise'' comes back repeatedly, which does not give me much comfort. I am more impressed with the categorical statement made by the Privacy Commissioner, which I found nowhere being challenged. On April 9, he said before the committee:

"This bill, if passed, will violate a promise repeatedly made to Canadians by successive governments and eliminate existing privacy rights retroactively."

I would like to ask Senator Murray how we can justify breaking such a pledge that has been made to Canadians successively over the years by many governments?

Senator Murray: As I said, I appreciate the principled position taken by the Leader of the Opposition. As I have also said, I challenge the Privacy Commissioner in these words. What he says of this bill was true of the compromise that he agreed to a couple of years before.

My friend says that as soon as he hears the word "compromise'' he becomes leery. The country was built on compromise. I have tried to explain that the Chief Statistician, who has been to the forefront in defending the absolute privacy of this information, saw the writing on the wall. With the change in the legal position of the Department of Justice, he saw the real possibility that the courts would find, absent any further intervention by Parliament, that there was to be unrestricted access to census information after 92 years. Thus, he was driven to this compromise, which he supports, all in all, pretty much without reservation. He implored us not to pass the amendments that were before the committee at the time, but he gave his full support to the compromise to which he was a party, and to the bill, which reflects that compromise.

On that basis, and my own reading of the situation over the period of several years that Senator Milne has been bringing in her private members' bills, I came to the conclusion that I for one ought to support the bill, which is what I am doing.

Senator Lynch-Staunton: To be clearer, perhaps I should have said that I do not believe in compromise when it comes to the basic rights of the individual, and certainly the basic right of privacy. The fact that Senator Murray has shown more than passing interest in having privacy introduced into our Charter, I think, probably indicates he agrees with me more than he would like to let on.

Senator Robichaud: That is interpreting.

Senator Lynch-Staunton: I would like to ask Senator Murray one other question. If passed, this bill will become law. However, it will only be implemented through the regulatory process. By clause 2 of the bill, the Governor in Council may prescribe the forms, categories, et cetera. The success or failure of this bill, if it becomes law, will be on the regulations.

Has the committee asked to see a draft of the regulations, before the bill is proclaimed, to ensure that whatever the restrictive nature of this bill may be, it is respected in the regulations?

Senator Murray: Honourable senators, I generally agree with the point that is made inferentially by the Leader of the Opposition and that was made more directly by the Privacy Commissioner, namely, that I prefer to see things in the legislation rather than in regulations.

However, this is what we have. I will say that, to their credit, the government, even before second reading, put out, if not all the regulations, I think most of the regulations that will apply to this act. Those regulations include even the application forms that one would have to sign if one wished to delve into one's ancestry. The draft application forms are there as part of the record. They were released by the government. Also included are the application forms that historians would have to fill in to do historical research.

I think it is fair to say we have most of the regulations. All of the definitions and so on are contained in the various materials that the government put out. Most of it was provided even before second reading, although some of it has been provided in the period since then. In other words, they are available.

On motion of Senator Lynch-Staunton, debate adjourned.