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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 57
Thursday, May 15, 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. Terry Stratton: As honourable senators have spoken in this chamber with respect to this bill, they seem to have spoken in terms of today. They say "today this'' and "today that.'' They do not go back in time, and that is the curious part about this debate. Perhaps they did so in committee. I was not there and am therefore not certain. However, in listening to this debate, I question why no speeches were made with respect to that element in time, back then, to put it in a historical perspective.

The 1906 census, as someone has said, was conducted when the West joined Confederation — that is, Alberta, Saskatchewan and British Columbia. Why did the government decide that that census should remain confidential? It is a curious question. Why this one, when those before were not? It begs the notion that, perhaps, it was there to encourage people to come forward rather than not come forward. That is not to say that the West was wild or unlawful, but there would have been a degree of that attitude there. Perhaps that was the reason. The historical perspective was not mentioned, at least from what I have heard, and I wanted to comment on that particular census.

I also want to congratulate Senator Milne on her speech. One does not have to read the bill after reading the honourable senator's speech because it was so clear and straightforward.

I would like to go next to the 1918 and 1921 censuses. Senator Milne talks in her speech about John Manley, when he was Minister of Industry, appointing an expert panel to study the issue and report to him. The conclusions of the expert panel were straightforward. The panel, which was led by former Senator Lorna Marsden and former Supreme Court Justice Gerard La Forest, found that there was no legal impediment to the release of census records prior to 1918. In 1918, however, the Census Act itself was amended to include the same confidentiality provisions as had been included in the earlier regulations governing the 1906 through 1916 censuses.

She then goes on to say the following:

Although there was no mention of the National Archives in the 1918 act itself, the regulations governing the 1921 and all subsequent censuses, which had and still have the force of law, all made specific reference to the fact that the nominal census returns would be turned over to the Archives of the Dominion.

The expert panel concluded that the placing of this reference in the regulations, rather than in the bill, was not a specific policy choice but an oversight.

To put this in perspective, let us go back to 1918; to 1921. What occurred in that time frame? What was the mood of the nation during those years? We are talking about the end of the First World War. We would expect everyone in the country to have had concerns over privacy and over information getting into the wrong hands. That was the mentality back then. That would have been foremost in their minds, one would think, at the time this was done. It was done for good and valid reasons, at the time.

To put this in perspective even further, consider for a moment the SARS environment that we have been living through recently. Had the situation deteriorated further, there would have been a mentality of closing oneself in, of withdrawing from the world and protecting one's family and oneself.

Let us consider the flu epidemic of 1918. It took 20 million to 30 million lives. The same kind of mentality would have been prevalent at that time, thus giving this a historical perspective as to why they may have done this.

For those reasons, honourable senators should respect the position taken at that time.

One cannot go back, as I have said before, for example, with respect to Senator Chalifoux's bill on Louis Riel; one cannot remake history. It is not possible to recreate and to pretend that what happened back then in its historical context should be changed. History cannot be changed. The attitudes of the people from that time were what they were. I am convinced that confidentiality was important at that time, and that it was important for the reasons I cited above. We should pay respect to that mentality, to that way of thinking, and thereby should not go there out of respect.

On February 11, 2003, as reported at page 803 of the Debates of the Senate, Senator Milne said the following:

In November 2001, Statistics Canada announced further public consultations by way of focus groups and town hall meetings. The goal was to measure the reaction that Canadians would have to the release of these census records. After a lot of study and hundreds of submissions, Statistics Canada was able to conclude sometime this past summer that post-1901 censuses could be released.

It is almost as if the government is governing by polls. That is not the way to make legislation. In making legislation, it is important to consider the historical perspective of that time. We must remember that.

Senator Milne continued:

I turn, then, to the limits that are being placed on access under this bill. I freely admit that I have struggled long and hard over what is set out here, and I have come to the conclusion that the temporary limits are justified. One simply cannot ignore the fact that, in 1918, the federal government wrote privacy provisions into the Statistics Act; nor can we ignore the fact that all of the regulations governing the 1911 and 1916 census had the force of law. Those regulations mentioned both the release to the Archives of the Dominion and the need for privacy. Privacy rights are real rights and it would be totally improper for the federal government to disregard them.

Again, the historical perspective is virtually ignored. These provisions were put into law and were reinforced: Do not go there. We should respect that.

Senator Milne continued:

The principles governing the release of future censuses are, I believe, equally sound. Starting with the next census in 2006, Canadians will have the opportunity to decide for themselves whether their census returns will be turned over to the National Archives. If they decide that they do not want their information ever to be made public, it will not be disclosed.

Why is that all right for today and tomorrow, but not all right for the past? Tell me. Why is it all right for today and tomorrow but not all right for the past? We should respect that past and the context in which Canadians made those decisions.

I wish to quote Senator Murray briefly, from page 807 of the same date:

Against that, Senator Milne and others have argued that there is a provision stating that the material should be sent to the archivist. Yes, there is; and, yes, there is an apparent conflict. However, we must bear in mind that this data has not been released before now and the government feels it is necessary to bring in the bill because the Department of

Justice interpreted those regulations and that law in a certain way until fairly recently, when they have done a 360 degree flip-flop on the issue. I suppose that lawyers in the Department of Justice have a right to change their minds just like anyone else.

That begs the question: What are we doing here? Is the government governing by polling or is it governing by the historical perspective under which these laws were put in place?

Senator Murray continued:

There was also the question of whether these regulations from the past and from the 1918 and subsequent legislative provisions were trumped by the 1983 Privacy Act, which provides for disclosure of government information after 92 years. Senator Milne and others argued that the Privacy Act trumped it. As a layman, I would have thought that if the Privacy Act were to trump existing legislation, it would say so. Notwithstanding the information in this or that other statute, this is the disclosure regime that would apply.

Therefore, I shall close by saying that, while I can appreciate the information as being valuable to certain people, there is also an act of respect that we are missing here to those who have gone before.

This chamber exists to respect the minorities and, in this case, those who are not here, those who cannot speak for themselves. I believe we owe it to them to speak in that historical perspective and to try to understand from whence they came and why they made decisions they did at that time. It is important for us to never forget that in this chamber.

On motion of Senator Kinsella, debate adjourned.