04/19/2005 -- During final Senate Third Reading debate of Bill S-18 - An Act to amend the Statistics Act Senator Lowell Murray spoke in support of the Bill, and announced his intention to vote in favour of it. We accept the sincerity of the Honourable Senator in his statement, and are pleased to finally award him a Gold Tick of Support. The extract of his speech to the Senate is copied below. (G.A.W.)

Hon. Lowell Murray: Honourable senators, Senator Milne must be wondering what she has done wrong in her life. I do not know how many times either she or the government at her initiative has brought in a bill of this kind and it has died on the Order Paper or died with prorogation or dissolution. Here she is staring down the barrel of dissolution and quite possibly contemplating the disappearance of her bill for the time being once again.

It is no secret to honourable senators that in the perennial tension between privacy on the one hand and access to information on the other, and the effort to strike a balance between the two, my instinct has always been to come down on the side of privacy. Therefore, I have opposed most of the previous initiatives brought forward by Senator Milne. I have opposed them because I was relying, as Senator Lynch-Staunton and others have done, on the assurances given by previous governments — some of them written into statute, others proclaimed by way of regulation — that the information would be kept strictly confidential.

I am venturing a little beyond my depth here in discussing a legal issue, but the legal status in recent times has not been as clear-cut, as our old friend Senator Beaudoin would have said, as some senators have made out in this debate. The question, I think, was and is whether legislation passed subsequent to the Census Act and its amendments, legislation such as the Access to Information Act and the Privacy Act, trump the confidentiality provisions in that previous legislation.

I had thought that it did not. I was relying on the word of not only the Chief Statistician of the country, who took quite a strong position on this matter, but on the legal advice he was receiving and had received for some time from the Department of Justice. On that basis, I felt confident not only in the moral and political position I was taking, but in the legal support it seemed to have.

The committee that had been set up by the former minister, I think it was Mr. Rock, under the chairmanship of —

Senator Lynch-Staunton: It was Mr. Manley.

Senator Murray: In any case, the former Minister of Industry, I think under the chairmanship of retired Justice Gérard La Forest, was not quite as categorical as Statistics Canada and some of us had been. However, the committee came to the conclusion that all things considered and, as they might put it, for greater certainty, legislation would be required to open this up.

The development that was decisive in recent times is that the Department of Justice simply did an 180-degree flip-flop on the issue and came to the conclusion that if the confidentiality or secrecy provisions were contested in the court, we would lose. That was their conclusion. They came to agree with those whose position it was that the subsequent legislation, the Privacy Act and Access to Information Act, trumped the previous statutes.

Therefore, the question that faced Statistics Canada and others was what to do. They came to the conclusion that if we were facing the loss of those confidentiality provisions, the prudent thing to do would be to try to build some fences around it in legislation. That is what this bill tries to do, among other things, by asking respondents whether they will agree to have their personal information released in 92 years.

The nub of the question is whether it is more prudent to face what appears to be the legal reality and build some fences around it to get the best compromise that could be achieved under the circumstances, or whether we sit back and wait for a case to emerge in the courts where we will be literally defenceless because the Department of Justice has thrown in the towel.

On that basis, not because I have changed my basic orientation, which is more to privacy than the release of information, and because I think the compromise is an honourable one and the fences are probably as far as we can go at this stage, I said when this bill was introduced in a previous iteration that I would support it and I will support it now.

Hon. Gerald J. Comeau: Honourable senators, would Senator Murray entertain a question?

Senator Murray says he is relying on the Department of Justice, which in fact did a complete 180-degree turn.

(1530)

I assume that the honourable senator has complete faith in such a legal opinion. That is, obviously, questionable by some of us other less human people.

However, the Federal Court, back in 2004, which is not all that long ago, did say that in order for the documents to be released between 1918 and 2001, the government would need legislation to authorize the release. Is the honourable senator aware of that Federal Court decision and if so, how does he square the Federal Court decision with the justice department opinion that basically says that you do not have a case to stand with in front of the court? Finally, on the question of the great compromise, hence forth from 2006 onward, we have an opportunity to say no to release, but in fact, the individuals in the family do not have that option. In fact, it is the head of the family that will have the option to indicate this on behalf of the members of the family, so if the head of the family responds on my behalf, I have nothing to say about it.

How does the honourable senator, the great privacy person, square those three issues that I bring up?

Senator Murray: In a word, it is not because I have more confidence in the Department of Justice than I had at a particular point. It is simply that if they have done a 180-degree flip flop, as I say they have, we will be left defenceless. They have thrown in the towel, and in a court contest, the issue would be lost. I do not know who will defend the position that the honourable senator is taking. If the government does not take it, who will?

The department reversed itself, and this was the reality that Statistics Canada and the government were faced with, in bringing this bill forward. I am not familiar with the details of the court case in 2004 to which the honourable senator is referring, and I would have to examine it and its implications in light of the Department of Justice's opinion.

As for someone replying on behalf of other members of the family, this is the way it has always been done and it is the way it will always be done in the future.

Senator Comeau: Would the honourable senator, if he says that this is the way it has always been done, find those examples for us, because it would be helpful? I am sure our colleagues in the House of Commons would want to see the kind of precedents whereby heads of families are authorized to release the private information of the minors in that family. For example, can the head of the family release the medical information of the minors of the family? Is that person authorized to release such private information? I certainly do not know any other cases.

It is not in the Statistics Act.

Senator Murray: They have been doing it, and the information in those censuses up to 1918 has been released.

Senator Comeau: The censuses up to 1918 are an entirely different issue. Under a separate provision, from 1918 onward our predecessors in Parliament enacted an act that gave explicit, easy-to-read rules even I can understand, but prior to 1918, I agree with you, it was a different era.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question!

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Hon. the Speaker: I hear some yeas and nays. I will put the question in the formal way.

Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it.

And two honourable senators having risen:

The Hon. the Speaker: Call in the senators.

Hon. Marjory LeBreton: We would agree to have the vote tomorrow at 2:45 p.m. with a 15-minute bell at 2:30.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: The vote is, so I understand it, at 2:45 with a 15-minute bell. The bells will ring at 2:30.

13 February 2003

Ms. Muriel M. Davidson
Canada Census Committee
25 Crestview Avenue
Brampton, Ontario
L6W 2R8

Dear Ms. Davidson:

Thank you for your letter of February 8 regarding the release of historic census records.

I have always believed a compromise was possible to meet the needs of people who want to trace their ancestors and of history scholars while respecting privacy concerns. Such a compromise was suggested by the Commissioner of Privacy and the head of Statistics Canada. I am encouraged to find that the government's Bill S-13, presented by Senator Milne and now being debated in the Senate is along these lines and I support it.

Yours sincerely,
Lowell Murray

From: Michelle Knoll
To: Lowell Murray, Senator
Sent: Wednesday, December 25, 2002 10:41 PM
Subject: Census Release

Mr Murray,

I sent you a letter sometime ago asking for where you stand on the census release issue, I would like you to take a second look at this issue. This is an important issue to me and relates directly to preserving our Canadian Heritage. I know you are a very busy man, but am hoping you have time to reconsider your position on this matter. I would be happy to pass on to you any information that you may need to help you make a decision on this issue. Thanks

Michelle Knoll
Ontario

From: Linda Falls
To: murral@sen.parl.gc.ca
Sent: Friday, November 09, 2001 10:14 PM
Subject: Post 1901 census release

Dear sir:

I note that you are against releasing the post 1901 Canadian census. I would urge you to reconsider.

All censuses should, in my opinion, enter the public domain after a certain period. Access to information is part of a free society and Canadians should enjoy the freedom to search for ancestors, conduct research.

With so many families finding their Canadian roots in Ontario I would hope that you will be sensitive to considering the importance that census information plays.

Sincerely
Linda Falls

From: "Murray, Lowell: SEN"
To: "'sharon walker'"
Sent: Tuesday, October 09, 2001 10:44 AM
Subject: RE: Post 1901 census records

Ms. Walker:

Thank you for your message. I opposed this bill at 2nd reading and continue to find it unacceptable. However I believe it is possible to achieve a compromise which would be acceptable to you and others who need or wish to study their own family histories. This was the theme of presentations at the Senate's Social Affairs Committee which is now studying the bill. Enclosed you will find copy of the speeches delivered at 2nd reading and of the transcription of discussions at the committee.

Lowell Murray

From: Murray, Lowell: SEN
To: 'M MacDonald'
Sent: Saturday, September 29, 2001 10:52 AM
Subject: RE: Release of Post 1901 Census

Dear Ms. Macdonald:

I will be glad to have my office supply you with copy of my speech during the second reading derbate of Bill S-12. You may also wish to see transcript of the discussion at the Senate's Social Affairs Committee where this bill is now being studied. I will ask my assistant to send this to you also. While I am opposed to Bill S-12 for the reasons stated in my speech, I continue to believe it is possible to achieve a compromise acceptable to you and others who need or wish to study their own family histories. This was the theme of prersentations at the Committee. I rather doubt the bill will have sufficient support to be passed in its present form. L.M.

Dear Sir:

I am aware that you are against the release of the 1906 and subsequent Census records to the public.

As a Canadian citizen, I do support the recommendations of the Expert Panel on Access to Historical Census Records, and I encourage you to take a strong stand on BILL S-12, which will allow the publishing of the post 1901 Census records and any future census records as well.

I have been researching my families' roots for many years. Without records such as the Census' being available for all to review, it make the search very difficult, if not impossible. These particular census are especially vital to my research and I'm sure to many others, since huge number of our forefathers immigrated during this period.

The Expert Panel acknowledges that these records are important and says they should continue to be made available.

I strongly urge you to support Bill S-12, making the information available to future generations of Canadians.

If you have bery good reasons why you cannot support this Bill, I would appreciate knowing what they are. Thank you.

Respectfully,

Marge MacDonald
Maple Ridge, BC

From: "Robert Wiffin"
To: Lowell Murray, SEN:
Sent: Monday, October 01, 2001 8:33 PM
Subject: Bill S-12

Hon. Senator Lowell Murray
Parliament Buildings,
Ottawa, Ontario.

Dear Senator Murray:

I am writing to you today to urge you to suppport Bill S-12 for release of the 1906 and subsequent Census records to the public. I realize that you do not support the bill in its present form but feel that some form of compromise should be possible

As an amateur genealogist, I am particularly interested in the 1911 Census to resolve conflicts in the records of my grandparents contained in the 1891 and 1901 Censuses.

As you are aware, the purpose of Bill S-12 is not to create some new function but rather to RESTORE access to the Census records. This access has been denied to the public, not by an Act of Parliament, but by a LEGAL OPINION from the Justice Department which claims that a promise was made of non-disclosure in perpetuity. Mr. Gordon Watts, who appeared before the Senate committee, has done extensive work in searching the parliamentary records for evidence of this promise but was unable to find any supporting evidence. Nor have the supporters of the non-disclosure position been able to produce any evidence to support their stand. The Expert Panel, which was formed by the previous Liberal government to look into the issue, was also unable to find any supporting evidence and recommended that the Census records should be released.

There is no record of any complaint regarding the release of Census information 92 years after collection. There are, however, thousands of signatures on petitions presented to the House of Commons and the Senate calling for the return to release of the Census to the public after 92 years.

The United States of America and the United Kingdom both have legislation which releases Census records to the public. For the U.S., the time delay is 72 years and in the U.K. it is 100 years. However in both places there is considerable activity aimed at making the Census records more readily available. In the U.S., the entire 1900 Census has been indexed and is available over the internet after payment of a fee to the private company that put it on line.

I am interested in learning what you feel is wrong with the proposed legislation and how you would propose to modify it to make it acceptable to opposing views.

Yours truly,

Robert Wiffin
Ancaster, Ontario

From: "Murray, Lowell: SEN"
To: "'Frank McKERRY'"
Sent: Monday, October 01, 2001 12:46 PM
Subject: RE: Post 1901 Census

Mr. McKerry:

For your convenience, you will find below Senator Murray's speech at 2nd reading as well as the unrevised transcripts (attachment - Word document) of the Social Affairs Committee meeting held on September 19, 2001. Hope this is of assistance to you.

Hélène Proulx
Administrative Assistant to
the Honourable Lowell Murray
Tel: (613) 995-2407

From: Murray, Lowell: SEN
To: 'M MacDonald'
Sent: Saturday, September 29, 2001 10:52 AM
Subject: RE: Release of Post 1901 Census

Dear Ms. Macdonald:

I will be glad to have my office supply you with copy of my speech during the second reading derbate of Bill S-12.

You may also wish to see transcript of the discussion at the Senate's Social Affairs Committee where this bill is now being studied. I will ask my assistant to send this to you also.

While I am opposed to Bill S-12 for the reasons stated in my speech, I continue to believe it is possible to achieve a compromise acceptable to you and others who need or wish to study their own family histories. This was the theme of presentations at the Committee. I rather doubt the bill will have sufficient support to be passed in its present form.

L.M.

-----Original Message-----
From: M MacDonald [mailto:mmacd@smartt.com]
Sent: Friday, September 28, 2001 10:33 PM
To: murral@sen.parl.gc.ca
Subject: Re: Release of Post 1901 Census

Lowell Murray, P.C. Ont.

Dear Sir:

I am aware that you are voting 'NO' for the release of the 1906 and subsequent Census records to the public.

Your reasons for voting 'NO' would be of great interest to me and I would appreciate you letting me know what they are in order that I might better understand your position.

I have been researching my families' roots for many years. Without such records as the Census' being available for all to review, it makes the search very difficult, if not impossible. These particular census are especially vital to my research and I'm sure to many others, since huge numbers of our forefathers immigrated during this period.

The Expert Panel acknowledges that these records are important and says they should continue to be made available. The government's deferral of this matter for further study is puzzling to say the least.

I strongly urge you to support Bill S-12, making the information available to future generations of Canadians.

If you have very good reasons why you can not support this bill, I would appreciate knowing what they are.

Thank you.

Respectfully,

Marge Macdonald,
Maple Ridge, B.C.

From: "Murray, Lowell: SEN"
To: Lyn Duncan
Sent: Saturday, September 29, 2001 11:11 AM
Subject: RE: Bill S-12, please release Post 1901 Census to 'our' NationalArchives

Dear Ms. Duncan:

I voted against Bill S-12 at second reading. However I continue to believe a compromise can be reached which would be acceptable to you and others who need or wish to study their own family histories.

This was the tenor of presentations at the Senate's Social Affairs Committee where the bill is presently being studied. I rather doubt the bill will pass in its present form.

L.M.

-----Original Message-----
From: Annacan@webtv.net [mailto:Annacan@webtv.net]
Sent: Monday, September 24, 2001 5:28 PM
To: murral@sen.parl.gc.ca
Subject: Bill S-12, please release Post 1901 Census to 'our' National Archives

Hon. Senator Lowell Murray

Bill S-12, now before the Senate will have an effect on everyone in our families wanting to reasearch these files at some time. It should be (and I believe very strongly) that it IS our right to access this information from 'our' National Archives.

I see on the Senator's Score board that you have voted 'no' to releasing these files. I hope you will take time to reconsider the implications of that decision.

Please take a few moments to read what I have to say in hopes that you will reconsider the importance of this issue, what it means to Canadian History & persons researching their family roots in Canada. May we all stand united on this very important issue.

Please vote YES for release of the Census to "our" National Archives from Stats Canada, as in the past 235 years we family researchers have had access to these most valuable records (after 92 years). The refusal to comply with the recommendation of the panel to do so has a personal effect on my research. I have my family tree from 1851.... Russia to USA, but now have no way of knowing when they came to Canada. The family has so far only been able to guess..... not good enough!! We need proof. Many members of my family have different dates, which leave us all in a quandary.

My children want me to complete this & I want to also. They do not know the names of the relatives as I do. I believe I (WE ALL) owe it to our children to know where the previous generations were, for our personal history & that of Canada. I cannot locate Canadian members in the 1901 census, but obituaries show they were in Alberta in 1905 & died either in 1911 (as some say) or 1919 as others say. Although this is just one of many people's stories I hope you will consider this matter seriously & vote 'yes' for Bill S-12 ~ please for the sake of our heritage of this very young country & for generations to come, again I plead for your support with a 'yes' vote.

How can we instill in our children "Pride in Canada" without showing them how their ancestors pioneered this land?

Thank you
I sign this with great respect,

Lyn Duncan
White Rock, BC

From: "Frank McKERRY"
To: Lowell Murray, SEN:
Sent: Monday, September 24, 2001 10:25 PM
Subject: Post 1901 Census

Hon. Sen. Lowell MURRAY

You may have your own reasons for not wanting to release the Canadian Census and are saying NO to Bill S-12. But in doing so you are depriving many families of important information on their ancesters who pioneered this great country of ours. It is with compassion that you should not deprive your citizens of these important documents. I beg you to change your mind and vote YES to Bill S-12. This is a rightful honest request and an entitlement to the families of this proud country.

Respectfully

Frank McKerry, Vernon, B.C.

Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 20
Tuesday, March 27, 2001
The Honourable Dan Hays, Speaker



---

Statistics Act

National Archives of Canada Act
Bill to Amend-Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Finnerty, for the second reading of Bill S-12, to amend the Statistics Act and the National Archives of Canada Act (census records).-(Honourable Senator Murray, P.C.).

Hon. Lowell Murray: Honourable senators, Bill S-12 is a Senate public bill brought forward by Senator Milne. I am speaking to it as a private member in that I have neither sought nor received authorization to speak on behalf of anyone but myself.

I will not support this bill without serious amendments to it having been first made. That being said, I cheerfully concede that there is a constituency of support for the bill in the country. That constituency consists primarily of genealogists or, more particularly, people who are interested in genealogy and in tracing their own family history. There is also some support for the bill among some historians, which support I cannot quantify.

The purpose of the bill is to allow the government to make public the individual census returns of Canadians 92 years after this personal information has been collected for census purposes. I would ask honourable senators to consider the merits of the bill in two phases. Obviously, if the bill became law it would apply to individual census returns in all future censuses. Unusually, however, this bill would have retroactive effect. It would apply to all censuses since the year 1906.

To place that in some historical context, the first national census post-Confederation was conducted in 1871. National censuses were taken at 10-year intervals thereafter until 1956, when we started conducting them every five years. From 1906 until 1946, a mid-decade census was taken only in Western Canada.

All personal data from the censuses of 1871, 1881, 1891, and 1901 have been released by the government pursuant to the 1983 Privacy Act, which, through its regulations, has the 92-year rule.

A campaign started a few years ago to have the government release the personal data from the 1906 census in 1998, after 92 years, and to release the personal data from the 1911 census in the year 2003. This, the government has refused to do. The government has taken the legal position that it is constrained from doing so, that it is obliged to keep the personal data in these individual returns confidential because of regulations passed, first, under the 1905 and 1906 Census and Statistics Act and regulations that were passed in 1906 and 1911, and because of a provision that was actually written into the Statistics Act in 1918 that prevents the disclosure of personal information collected in the course of the census.

I will quote a brief excerpt from the regulations and from the 1918 act. Pursuant to the regulations under the 1905 and 1906 Census and Statistics Act, which regulations were promulgated in 1906 and again in 1911, officials were required to:

...keep inviolate the secrecy of the information gathered by enumerators and entered in the schedules or forms. An enumerator is not permitted to show his schedules to any other person, nor to make or keep a copy of them, not to answer any questions regarding their contents directly or indirectly, and the same obligation of secrecy is imposed to commissioners and other officers or employees of the outside service, as well as upon every officer, clerk or other employee of the Census and Statistics Offices at Ottawa. The facts and statistics of the census may not be used except for statistical compilation, 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.

I shall also read the relevant excerpts from the 1918 Statistics Act. Section 15(1) reads as follows:

No individual return, and no part of an individual return, made, and no answer to any question put, for the purposes of this Act, shall, without the previous consent of the person or of the owner for the time being of the undertaking in relation to which the return or answer was made or given, be published, nor, except for the purposes of a prosecution under this Act, shall any person not engaged in connection with the Census be permitted to see any such individual return or any part of any individual return.

Section 15(2) reads as follows:

No report, summary of statistics or other publication under this Act shall contain any of the particulars comprised in any individual return so arranged as to enable any person to identify any particulars so published as being particulars relating to any individual person or business.

As a layman, I think that those regulations from 1906 and 1911, and that provision of the 1918 act, are as clear as clear can be. I should add that I am informed, although I have not eyeballed it myself, that subsequent legislation in 1948, 1970, 1971 and 1972 specifically prohibits the disclosure of personal information collected in the course of all the censuses from 1921 right through to the census that will be taken later this year.

The position of the government, I think properly, in response to the campaign that was undertaken several years ago to have the government release the personal data starting with 1906 in 1998, and 1911 in 2003, has been that they are forbidden from doing so by the law, that those regulations, and obviously the provisions of the 1918 act, still have the force of law.

I should like to say a word about the arguments that are used by the people who want this information disclosed. If I do not do justice to them, I am sure Senator Milne will do so when she closes the debate.

First, there is, of course, an obvious interest on the part of many Canadians - and I do not know how many, but it seems to be a fairly important, shall I say, lobby - to trace family history. This is understandable and commendable. To add to this the fact that there is a potential need, perhaps even a pressing need, on the part of some people to obtain personal information about their families and family background that will be relevant in the light of modern advances in medical research and genetics, I say in parentheses that I do not understand quite how a lot of the census information, particularly that taken in earlier years, would be much help in the case of medical genetics.

However, let us accept the argument as being valid. I am of the view that, in the case of people who want to trace their own family histories, for whatever reason, it should be possible, even retroactively, to make some exceptions with proper safeguards for this activity. We are always talking about trying to strike the right balance between the right to privacy, which in this case I say is enshrined in the laws to which I have referred, and the right to or the need for access to information. The former commissioner of privacy, Mr. Phillips, suggested that it would be possible to make an exception for genealogical activity in such a way that the information on families could be segregated. In other words, if I wanted to trace, to pursue my own family history, I could do that without trolling through the family history of my colleagues, friends and neighbours. I put that out as being one possibility of an acceptable and honourable compromise which, in principle, I would certainly support.

I am not at all convinced by the arguments that are made by some historians for making public all of this personal census information. I understand the desire of historians to have as much information as they possibly can on any given subject. I think we know that to historians there is no detail, no matter how small, there is no scrap of paper, no matter how insignificant, that is irrelevant to their pursuits. Naturally, they like to know everything about everyone.

Nevertheless, I do not think that the understandable desire of these scholars for more and more information justifies the invasion of privacy that would be involved in acceding to their demands. I say that my opposition to doing so is reinforced by the fact that what we are being asked to do in this bill is to revoke retroactively a secrecy provision that has been in the law since 1906. My opposition to do so is also reinforced by the fact that personal census returns have become in recent years, certainly in the past let us say half century, increasingly intrusive, collecting much more in the way of personal, even intimate, information about individuals and their families. This information is collected from Canadians under the compulsion of law and the trade off is that of confidentiality.

In 1999, the government appointed an expert panel on access to historical research records. The mandate given to it was expressed in two questions. The first was: What are the elements of the difference of opinions between Canadians who would seek to maintain the protection of personal information and those who would like to examine personal or community histories? The second was: What options exist to provide access to historical census records?

I think I detect a slight bias in the way the mandate was phrased. There is no lack of access to historical census records in the aggregate. What we are talking about here is access to personal information, to individual returns. I get the impression that Mr. Manley, who was then the minister responsible for Statistics Canada, was tilting a bit toward the campaign that was then underway to have this material released. In any case, he asked for options, and the panel did not disappoint him.

In its report, the panel said that the government could go ahead right now and release the personal data from the 1906 and 1911 censuses. The panel clearly disagrees with the legal position of the government to the effect that the regulations of 1906 and 1911 prevent that from happening.

With respect to the personal data collected in censuses after 1918, the panel seems to think that legislation would probably be necessary. This distinction need not concern us for the moment because Senator Milne, out of an abundance of caution and prudence, has made her bill retroactive to everything from 1906 on.

What should concern us, however, are the reasons advanced by the panel for this retroactive action. First, the panel points out that nowhere in the regulations of 1906 and 1911, nowhere in the law of 1918 and nowhere in the parliamentary debates on those matters do they finds the words "perpetual," "eternal," "forever." On that basis, they say, "If words like `perpetual,' `eternal' and `forever' are not in the statute, then surely it must have been intended at some point to release the information."

Honourable senators, I have read you both the regulations and the statute from 1918. I believe those are clear. The idea that the absence in those laws of words like "perpetual," "eternal" and "forever" could justify legally, politically or morally the retroactive annulment of a confidentiality provision seems to me to be a very flimsy pretext by this panel to justify the conclusion and the recommendation they are making.

Their second argument is that it should be possible to infer from the fact that at some point a few generations ago it was decided that all the information would be transferred to the National Archives there is some intention, implicit, to release the information down the road. There, again, I do not think this follows at all. The fact that the information was being transferred to the archives "for future reference" does not imply an intention to release that personal information publicly. In any case, the law is well understood by the government, by Statistics Canada, by the public, by the National Archives of Canada and by the sponsor of this bill. The law prevents the retroactive release of this information. My friend has brought in a bill to have the law changed retroactively.

The third argument that the panel has advanced is international comparisons. They point out that in the United States there is a 72-year rule, that in Great Britain there is a 100-year rule, and that in Australia, starting now, they will have a 99-year rule in respect of personal data, provided that the individual respondent has given his or her consent to the eventual release of the data. Until very recently, it was the custom and the law in Australia to destroy all of this information, for cultural and historic reasons that concern Australia and need not detain us.

Honourable senators, I believe that none of these three arguments put forward justifies this retroactive legislation. Furthermore, no convincing argument has been put forward that the national interest would require this retroactive action by Parliament. If an argument of pressing national interest had been put forward, we would have to weigh it because there are no absolutes in this business. The only compromise that would be justifiable in terms of personal information relating to individuals is a compromise, an exception, for people wanting to trace their own family history, with safeguards written into it.

As far as the future is concerned, I point out that approximately 20 per cent of all respondents are required to answer the long form of the census. The long form is getting to be quite a long form and the information demanded of you is, in some cases, quite intrusive. It is taken under compulsion of law, with the guarantee of confidentiality. Therefore, if the government, or Statistics Canada, or whomever, wants to release this personal information taken in future censuses, it is a very simple matter. There should be a place on the form whereby an individual respondent who wishes to give his or her consent to the eventual release of personal information could so indicate. This, as I pointed out, is done in Australia. For whatever reason, the expert panel of the government also rejected this idea of a consent being required by individual respondents.

Honourable senators, this question of privacy is a very important one. My bias in weighing balance is always in favour of privacy. I acknowledge that. We must be conscious and vigilant on the question of privacy. I congratulate our friend Senator Finestone, who has brought forward, in the form of a private member's bill last week, a proposed federal privacy charter.

Let me say a word now about the context in which this bill is coming forward. In 1983, we passed legislation, the Privacy Act, to protect personal information that is collected by the government for official purposes. I think it is a pretty good act. When I came to look at it more closely in recent days, however, I found that some of the key issues are dealt with not in the act itself but in regulations passed under the act. Those issues include the length of time the government may hold this personal information in its possession, the circumstances under which this personal information may be released publicly, and so forth. These are issues central to the issue of privacy and we should never have let them get out of our hands. These are issues that should form part of the act and should be debated in Parliament and not left to a committee of ministers to pass them into law in the form of regulations, which is what happened. That is one problem that I want to flag for you.

Second, we passed Bill C-6 late in the last Parliament. That legislation protects the privacy of personal information collected on you for commercial reasons, for example, information collected by your credit card company, your insurance company, your bank or whatever. I thought it was a terrific bill and as such gave it my complete support, as we did on this side of the house. There are some problems about the health sector, but these are being resolved as we speak. There was also an element in that bill that got away from us. At the last minute, I attempted to have a subclause excised from the proposed legislation. My attempt was unsuccessful, but I intend to come back to it. It permits the disclosure 20 years after the death of an individual of personal information collected on that individual for commercial purposes.

This is not tombstone information collected by the government. This is information collected by your credit card company or your mortgage company or your insurance company, or whatever. I cannot see for the life of me why we should permit, under any circumstances, that information to be disclosed. I intend to -

The Hon. the Speaker: Honourable Senator Murray, I must interrupt now to observe that it is six o'clock.

Senator Murray: I will wind up immediately.

The Hon. the Speaker: Is it your wish, honourable senators, that the clock not be seen?

Hon. Senators: Agreed.

Senator Murray: Honourable senators, the philosophy seems to be that the passage of time diminishes the concerns about individual privacy. The philosophy seems to be that your right to privacy dies with you. In fact, I am informed by some legal experts we had before the committee that this is the case, that in fact your right to privacy dies with you. I do not think that is a view Parliament should take. I do not think it is the right view.

In my opinion on this bill, we could properly provide access to personal census information in the future by giving the individual respondent the right to consent or not to its disclosure. I would compromise only to the extent of permitting exceptions with careful safeguards in the case of those who wish to do research on their own family histories.

Subject: Your Remarks of Thursday, November 4, 1999
Date: Sat, 13 Nov 1999 12:37:20
From: Lynne van Husen
To: Lowell Murray, MP

Mr. Murray:

As a member of the "Tactless Thanks", allegedly representing my interests in the Canadian Senat, I wish to comment on the above captioned remarks.

As a family historian, it infurieates me to read that you state I can "go to Hell" and that I wish to "get my paws" on information given in confidence. "Tendentious and highly predjudicial interpretation of the data?! I am an English Major, what are you talking about? You as SADLY undereducated on this issue, sir, and as a result, miss the ENTIRE point.

I want to know the names of my ancestors, where and when they were born, who they married, and who their parents were. This is tendentious? I am a rabblerouser and threat to the state? Only an idiot would make this assumption. I am not asking for a personal introduction, or fodder for blackmail. I am a LEITIMATE DESCENDANT of the people I am researching, as a labor of love, dead lo these last eighty years. I want my children to have a rock solid interpretation of where they come from, which naturally lead to who they are. Personally, I would be pleased and honored to think that 100 years from now my descendants would want to know more about me and mine. To me that is immortality and remembrance, sir. Why would I, or anyone else, be interested in "personal information about your grandfather or great grandfather". This smacks of paranoia or, dare I say it, perhaps a case of "methinks he doth protest too much."?

You lump Bruce Phillips and Sir Wilfred Laurier in the same sentence. SHAME.

To me and all of those like me who are genuinely, passionately devoted to the history of their family it is insulting that you feel you must air conclusions that are painfully inept, but also to deliver them in such a common, base fashion.

L. van Husen

Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 6
Thursday, November 4, 1999
The Honourable Gildas L. Molgat, Speaker



---


Personal Information Protection and Electronic Documents Bill
Second Reading-Debate Adjourned

(The following is an extract of a statement by Senator Lowell Murray made during debate of Bill C-6 – it does not comprise the full text of his statement.)

In the 1992 negotiations that led to the Charlottetown accord, the present Privacy Commissioner, Mr. Bruce Phillips, intervened and argued very cogently that the right to privacy be included, that the Charter be opened to allow an amendment to incorporate the right to privacy. The first ministers, in their wisdom, did not do so. I think it is regrettable that it is not there and I see no reason why we should not have a debate very soon on the extent to which the media should be permitted to invade personal privacy.

It is sometimes said that we are protected by the laws of libel and slander. People more learned in the law than I would have to analyze that, but all that says to me is that the media can print or broadcast any information they like about any individual, so long as it is true. I think we should have more and better protection than that, and I think a right to privacy in the Charter of Rights and Freedoms, put on the same basis as the right of freedom to expression, might well fit the bill. By the way, honourable senators, there was a lengthy article in The Globe and Mail this morning dealing with attempts made by the history industry to overturn the commitment that Sir Wilfrid Laurier had written into the law to protect census data.

I know that Senator Milne has a view about this. Many historians wish to get their paws on personal data that was given in confidence to the census takers since, I believe, 1906. The historians are arguing vigorously in favour of removing that restriction. Mr. Phillips, the Privacy Commissioner, is arguing just as vigorously against removing that restriction.

Let me say that I agree with Mr. Phillips. If my grandfather or great grandfather gave personal information to the census taker on the basis of the commitment made by Sir Wilfrid Laurier, I believe that that should be respected. I certainly would not want Michael Bliss or Ramsay Cook pawing over all that information and coming to their own tendentious and highly prejudicial interpretations of the data. I say long live Sir Wilfrid Laurier and Bruce Phillips and to hell with these historians.

Honourable Sir or Ms.

Greetings.

You may be aware that in the past several years a great many Canadians have been seeking to regain public access to Historic Census Records, 92 years after collection, as allowed by Regulations attached to the Privacy Act. Public access to Census Records after 1901 is currently prevented because of misinterpreted legislation and faulty legal opinions from Justice Canada that cause Statistics Canada to withhold control of these records from the National Archivist.

In November of 1999, then Industry Minister John Manley commissioned a panel of experts to study and make recommendations relating to public access to Historic Census Records. Their Report was submitted at the end of June 2000. It was finally made public, because of an Access to Information Request, on 15 December 2000. Current Industry Minister Brian Tobin, on releasing the Report of the Expert Panel on Access to Historic Census, rejected the recommendations contained therein, stating that “further broad based consultation with all Canadians” was required. It is the considered opinion of this writer that Mr. Tobin has likely not even read the Report of the Expert Panel, and is taking his direction from Chief Statistician Dr. Ivan Fellegi, who opposes public access to these records.

I urge each of you to read for yourself the findings of the Expert Panel on Access to Historic Census Records. It is available in hard copy, or accessible on the Statistics Canada website at:

http://www.statcan.ca/english/census96/finalrep.htm
en français http://www.statcan.ca/francais/census96/finalrep_f.htm

Briefly, the Expert Panel found that a guarantee of perpetual confidentiality was not intended to apply to the census. They felt that it had always been intended that census records would eventually become public and did not view any legislation deemed necessary to do so as breaking of a promise to respondents. The Report recommended allowing public access to all Census records, past, present and future, 92 years following collection. They advised caution only regarding any legislative steps that might be thought necessary to effect release of Census between 1921 and 2001. They suggested that any legislative change felt necessary be done in the National Archives Act rather than in the Statistics Act.

This message is being sent to all Members of the Senate of Canada to ask for individual responses to a specific question regarding how you would vote on a Bill supporting public access to Historic Census Records. An example of such would be Bill S-12, presented to the Senate by the Honourable Lorna Milne. Bill S-12 has received second reading and has been referred to Committee. Bill C-312, identical to S-12, has been presented to the House of Commons by MP Murray Calder.

The Question:

“Would you, as a Member of the Senate of the Parliament of Canada, vote FOR or AGAINST a Bill supporting release to the Public, of Post 1901 Census Records, 92 years after they were recorded? (1911 census information available in 2003, 1921 in 2013, etc.)”

A website dealing with Post 1901 Census has been posted at

http://globalgenealogy.com/Census

Among other things, it contains an explanation of the problem, petitions to download, links to various submissions to the Expert Panel, Bills and Motions relating to Historic Census, extracts from Hansard for the House of Commons and the Senate, and to columns written by myself that have been published in the Global Gazette -- an e-magazine published by Global Genealogy. The website also contains ‘Scoreboards’ showing the position of MPs and Senators relating to the above question.

Your response (or lack thereof) to the question above will be recorded on the Senator’s Scoreboard located on this website. Should you wish to comment, or elaborate on your position, a correspondence log for each Senator is accessible from the Scoreboard. Correspondence to or from you that has been forwarded to me, will be recorded in this log.

The Post 1901 Census web site is sponsored by The Global Gazette, an online magazine serving the genealogical and heritage community. A vast number of e-mails and calls from subscribers and web site visitors, clearly demonstrates that this issue is extremely important to them.

I look forward to your early reply. Thank you.

Sincerely,

Gordon A. Watts gordon_watts@telus.net
Co-Chair, Canada Census Committee