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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 50
Wednesday, April 30, 2003
The Honourable Dan Hays, Speaker

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ORDERS OF THE DAY

Statistics Act

Bill to Amend—Third Reading—Debate Adjourned

Hon. Lorna Milne moved the third reading of Bill S-13, to amend the Statistics Act.

She said: Honourable senators, it is with great pride that I rise this afternoon for what may be the last speech I will make in this chamber on the issue of the historic census.

This campaign has come a long way since it began five or six years ago. The Standing Senate Committee on Social Affairs, Science and Technology has recommended that this bill be passed without amendment. I urge honourable senators to do exactly that and without delay.

There is no doubt whatsoever that this has been a most difficult time for everyone involved. It has also become far more complex than I could possibly have imagined. The numbers tell that story.

The issue has survived the terms of office of three cabinet ministers, two privacy commissioners, an expert panel, cross- country town hall meetings, a handful of polls, 60,000 petitions to both Houses of Parliament, two motions in the other place, an inquiry in the Senate, two references to the Standing Senate Committee on Social Affairs, Science and Technology, two national archivists, an unbelievable seven different bills, my own two private members' bills introduced here in the Senate, two in the other place by the member for Dufferin—Peel—Wellington—Grey and another two by the member for Ottawa Centre.

We now have before us, at third reading, Bill S-13, which is a government bill. It seems as if the only things that have remained constant in this whole debate are the Chief Statistician, Dr. Ivan Fellegi, and myself. We seem to be the proverbial yin and yang of this debate, although Senator Murray would probably say that listening to Dr. Fellegi and me has been more like watching the Hatfields and the McCoys.

In the 21st century, though, freedom of information and the right to privacy act much more like a yin and yang in Canadian public policy. Each of them is appropriate in certain amounts, and no democracy can function properly if one consistently trumps the other. Neither Big Brother watching over us nor the impenetrable shrouds of secrecy are appropriate in Canada these days. Information and privacy issues are all about balance. In the end, I believe that is exactly what Bill S-13 provides.

I will not be shy about the fact that Bill S-13 gives a major victory to genealogists and historians, for they have earned it. The bottom line is that those who have fought for eventual free access to historic census information have won their battle. The government has fundamentally shifted position from forbidding access forever to enabling broad access to the records. For that reason alone, this bill should be passed.

However, for those who have serious privacy concerns, there are strict limits on the ways in which the records can be used. For example, for the first 20 years after the census records are opened, people may see the records, may access the records, but may only publish "tombstone'' information, which includes name, age, relationship to the head of the household and national origin. The exact list of tombstone information will be determined by a regulation.

Furthermore, historians or other researchers will only be allowed to have access to the records if a community leader, academic dean or a person of that stature reviews the research proposal and can vouch for the fact that the research will be beneficial to the community.

Another key component of this bill is that 92 years after each census is taken, control of the records will be transferred to the National Archives. The National Archivist is our country's historian. There is no doubt that, under his careful watch, these records will be preserved and protected for the use of Canadians for generations to come.

The other key thing that this bill does is that it sets out a scheme to deal with future censuses. All future census forms will ask Canadians if they will allow their information to be stored in the National Archives and released after 92 years. The handling of all future census information will be governed by prior informed consent. Where there is no consent, the information will not be released.

I will not stand here in the Senate and tell honourable senators that I have the right to force Senator Murray to release his information to the public 92 years after the 2006 census. That is not my right — it is his right to decide how information about him will be released in the future. Even though Senator Murray is out of the chamber for a few minutes, I dearly hope that Senator Murray will release his information to the National Archives. It would be a great loss to our country's history if future generations could not find a proper record of one of Canada's most notable senators.

I would be remiss, honourable senators, if I did not convey to you some of the tone and discussion that took place at the committee stage of this bill.

I began this speech by talking about the yin and the yang of the debate. Those senators who know their parables know that the yin and the yang must co-exist in order to create balance in life. I can tell senators that balance was the key word in the debate in the committee. Although most witnesses who appeared before the committee came down firmly on one side or the other side of the issue, the Chief Statistician and the National Archivist being notable examples, the vast majority of senators on the committee spoke of nothing but balance. Senator Murray, in particular, noted that this bill was a delicately framed balance that should not be disturbed. The government agrees wholeheartedly with that view. In fact, the committee chose not to pass amendments to the bill because it would simply not entertain upsetting that balance.

Now, even though all the witnesses knew, going into the hearings, that this bill was constructed to balance all the various interests, that did not mean that they did not try to upset the apple cart. Privacy Commissioner George Radwanski was particularly cutting in his remarks on the bill. He wanted nothing to do with it. He is still of the firm belief that the government made an unambiguous promise to Canadians that their census information would never be released. He still thinks that to pass this bill would be to forever destroy Canadians' faith in the privacy laws that are designed to protect them.

Senator Kinsella: He is right.

Senator Milne: Interestingly, the Information Commissioner did not want anything to do with this bill either. In the Deputy Information Commissioner's presentation to the committee and in a subsequent letter from the Information Commissioner himself, that office argued that to pass this bill would be a great step backward for those who want openness in government. The Information Commissioner believes that under current legislation the courts will, in the long run, force the government to release all historic census information 92 years after the anniversary of the census — with no restrictions. The Information Commissioner wants this bill defeated so that he can take the fight to the courts where he is convinced that he will win.

I believe, though, that an important social issue such as this should not be left to Canada's courts. It is clearly Parliament's responsibility to find an effective balance to the competing interests. I believe that this bill is an appropriate and realistic compromise. I also believe that although they may be a little disappointed with some of the details, the vast majority of genealogists and historians also think that this is an appropriate, workable and realistic compromise.

The remainder of genealogists can be fairly divided into two groups. One group believes it should not compromise on any issue and should fight to the bitter end because its side is right. This group is of the opinion that access to government files is a key right in a democracy and that any fettering of that right should not be tolerated. This group is not willing to settle for anything less than complete access to all censuses 92 years after the date of the census.

The government firmly rejects that approach. It is not appropriate to trample on Canadians' privacy rights. Indeed, a balance must be struck.

Finally, there is a group of genealogists that is perfectly willing to compromise but cannot, in good conscience, support this compromise because this group thinks it goes too far. A large part of the executive of the Canada Census Committee, including co- chairs Muriel Davidson and Gordon Watts, hold this view. They have provided me with many of the petitions that I have presented in this place. At the very least, I owe it to them to tell honourable senators where their line in the sand is.

First, in January 2003, the government released the 1906 census for unrestricted research and publication. The 1911 and 1916 censuses were taken under the exact same legal regime as the 1906 census. As a result, the Canada Census Committee believes that the bill should be amended to allow the 1911 and 1916 censuses to be released without restrictions, as was the 1906 census.

Second, as the bill is currently drafted, on all future census forms, Canadians will be asked to give permission to allow their forms to be stored in the National Archives and released after 92 years. This is the "prior informed consent'' provision.

The Canada Census Committee is concerned that all those people who do not answer the question one way or another, who just simply leave the box blank, will be forever forgotten in Canadian history. They ask that the section be rewritten to ensure that the forms for all Canadians will be stored in the National Archives, unless they fill in the box indicating that they want to be excluded.

Honourable senators, all of that being said, I believe that this is a very good bill. It is a fair compromise. We could probably debate this forever and never have unanimity on the subject. The issue simply does not lend itself to that kind of a result.

The bottom line is that this is a good bill and should be passed. I believe that it is necessary for it to pass in order to allow Canadians guaranteed access to their history.

Hon. Gerald J. Comeau: Honourable senators, I have a question for Senator Milne. Did I understand correctly that, if one checks the box, he or she is not giving permission for these documents to be released, the documents are sealed forever?

Senator Milne: That is correct.

Senator Comeau: I have been filling out census forms for a number of years. With all of the censuses that I have completed to date, there was an undertaking that the information that I was providing was confidential. It was my own. I was providing information to the government to help it plan government programs, for statistical purposes and so on.

All of the censuses that I have up until now signed in privacy with my government will now be accessible to anyone who wishes to see them after 92 years have elapsed. The promise or the undertaking that was made between myself and my federal government will be broken 92 years after the undertaking was taken; is that correct?

Senator Milne: That is only for tombstone information, which includes your name, address, whatever national background you wish to assign to yourself — I call myself Canadian — and the members of your family. That will happen after 92 years. After a further 20 years beyond that time, all of that information will become open.

Senator Comeau: Therefore, all of the information asked for on what is called the "long form,'' which asks confidential questions — and I do not know if the honourable senator has had a chance to look at it — will be made public in spite of the fact that an undertaking was given to these people that this information would not be divulged. That is my understanding.

Does this not also make it possible that information, once provided to government, becomes open after a certain number of years? What happens to the information requested when we apply for long gun registry cards, information even more personal than that contained on the census forms? If we take the tack that these files are what are referred to as government files, they no longer contain private information. They become government files. Is this the kind of information that after a certain number of years will be made public under the Access to Information Act?

I invite the honourable senator to look at some of the information on the long gun application forms to ensure that she understands the implications of the legislation we are being asked to pass in this house.

Senator Milne: Honourable senators, I would inform Senator Comeau that I have seen those forms. Very sensitive questions are asked on them. They come under a completely different section of the government. They do not fall under Statistics Canada whatsoever. Historically, they have never been nor I assume will they ever be transferred to the archives of Canada.

The census of Canada has always been transferred after 92 years and opened to the public after 92 years. This bill simply continues the tradition, which is a tradition in every single country in the Western world.

Senator Comeau: Honourable senators, I believe I used the same words that the honourable senator used and that were used by the people who signed those petitions. I have no qualms about people signing petitions to petition government to do things that they feel are important. I do not begrudge people doing that at all. However, these were viewed as government files. Once information is requested by these individuals, it becomes a government file. If we are authorizing, through this bill, the release of information that the government had undertaken on the census form to keep private and confidential, then are we not setting a precedent? In the case of long gun information, is it not the very same thing whereby this information becomes, at the drop of a hat, through a piece of legislation, available to the public? It may not be 92 years; it might only be 10 years. I am just alerting senators to the fact that we are stepping into an area where legislative provisions and undertakings of privacy and confidentiality are taking a direct hit. I am sure even the honourable senator would agree. If that kind of information becomes part of government files, what is to stop us from mounting another campaign next week to have these other government files made public?

Senator Milne: I would inform Honourable Senator Comeau that, presently, under the Access to Information Act, all government files are public after 25 years. Whether that will apply to the handgun registration, I do not know. However, I know that all government files are presently open to the public after 25 years, and I personally believe that they should be.

Senator Comeau: Does that mean that the income tax return that I filed 25 years ago is now available to the public?

Senator Milne: I should correct myself to say that income tax information is not available.

Senator Comeau: We must be very careful in how we proceed with these kinds of items. I invite the honourable senator to again look at the gun registry application forms. Applicants are asked all kinds of information. The honourable senator is saying that these forms are available after a few years to the general public and could be published everywhere. I am sure people will start putting in information that will not be of any use to government if this is the kind of approach that government uses with very private, confidential information. Let us be careful where we go with this.

Senator Milne: If that was in the order of a question, I can perhaps respond by saying, "Ninety-two years in the future.''

Senator Comeau: I do not think we should be flippant about it. I do not think we should say that a person's privacy diminishes the longer the person is dead. I think we owe it to our predecessors and our ancestors not to do that. If they felt that something was their own or was private, I do not think we should erode their privacy the longer they are dead. I do not think the fact that someone dies takes away the privilege of their own confidential and private information. We should be respectful of their privacy even after they have passed away.

Senator Milne: I quite agree with the honourable senator, and I was not intending to be flippant.

I believe the present Privacy Act legislates that 25 years after a person's death, their private papers can be made public. I would also point out that as soon as a person dies and their will is probated, their will, which is probably the most private thing that a person has, is automatically made public, and must be made public.

Hon. John Lynch-Staunton (Leader of the Opposition): The Honourable Senator Milne is mixing apples and oranges.

Senator Milne: I followed Senator Comeau's lead.

Senator Lynch-Staunton: When you prepare your will, you know, depending on what jurisdiction you live in, that it could be made public. You know that ahead of time. My objection to this bill is the following: No matter how basic the information to be made public, no matter the strict qualifications to those entitled to that information, it violates a pledge that is made on every census form. I will read it to colleagues. This is on the long form, and it applies to the short form: "The law protects what you tell us. The confidentiality of your census questionnaire is protected by law. All Statistics Canada employees have taken an oath of secrecy. Your personal census information cannot be given to anyone outside Statistics Canada — not the police, not another government department, not another person. This is your right.'' This was on the 2003 census form.

This bill violates a pledge made by the Government of Canada. I do not care whether it is just a name, an address, a city or a telephone number that is available elsewhere. I do not care whether it is in 92 years, and I do not care whether it is limited to people who are academics. I see this as the thin edge of the wedge. That is why I am opposed to this bill. It violates a pledge made to every Canadian who filled out this form. Does the honourable senator agree?

Senator Milne: I would repeat that this same sort of pledge is made on the census forms of the United States, Great Britain, France and Germany, and every single one of them eventually releases the census information to the public.

Senator Lynch-Staunton: What is the point?

Senator Oliver: That does not make it right.

On motion of Senator Kinsella, for Senator Murray, debate adjourned.