Senator Lynch-Staunton: Welcome, Mr. Phillips. I am sorry to hear you say that this may be your farewell appearance. If it is, I wish you well. I thank you for the great efforts and commitment you have made to privacy, in an environment which is not the most easy, and where privacy is more and more difficult to secure. Your efforts are exemplary. I hope that your successor will carry on in the way that you have set up your office, and that is in favour of that important element in our society which is privacy. You made reference to the census, a subject on which I wished to focus my questions. However, I think you have already expressed your views on that subject. "Common law" refers to two people of the opposite sex or of the same sex who live together as a couple but who are not legally married to each other. The final question which was published in the Canada Gazette is a little less direct. It states that "common law" refers to two people who live together as a couple but who are not legally married to each other. The definition may change, but the intent of the information sought is the same. First, this is the sort of information which I have difficulty in accepting as necessary in a census. Second, if the law is changed, it is information which may well be revealed in the years to come, and it is not information that many people answering that question would want revealed. The other question which I find very intrusive is Question No. 51, which asks for a detailed report on income, employment, government income, other income, dividends, and so forth. The explanation given for that question is that. while most Canadians file income tax returns, many Canadians do not, so this is to supplement the information that the Department of Revenue does not have available. When we file our income tax returns, whether we send then electronically or by mail, we like to think that they go directly to the person to whom they are intended. However, this information is not guaranteed to have the confidentiality it deserves. You have pointed out in your report on the challenge to privacy that in rural areas in particular the enumerators are friends and neighbours of the persons who are given the long form to fill out, and they have been responsible thus far in checking the answers to ensure, not that they are accurate, but that they have been answered. In many cases, therefore, neighbours and friends who are enumerators have available to them what the individual who filled out the form has felt has been confidential all along, but within a week his neighbour has secured this information. You do say in your report that there have been attempts to bypass the local enumerator, but that, so far, those efforts have not proven to be foolproof. After that introduction, sir, my question is twofold. First, do you believe that some of the information asked for in the census is of value to the census takers? Second, what advice would you offer the government in order to guarantee as much as possible the confidentiality of the census information? By the way, the common law question also applies in the short form. All Canadians have to answer that question, not only those who answer the questions on the long form. Mr. Phillips: By "census taker" do you mean the canvasser or Statistics Canada? Senator Lynch-Staunton: The canvasser, the person who delivers the form and to whom it is returned. Senator Finestone: They are obliged to do that. Senator Lynch-Staunton: If you fill out the long form, you must give it to someone. That person has to check that the questions have been answered. That person may be your next-door neighbour. Senator Finestone: I do not disagree with you, senator. I am saying it is an obligation under the law. Senator Hays: Perhaps we might hear from Mr. Phillips. Mr. Phillips: That is a process question, honourable senators. We have received a substantial number of complaints on that very point concerning the census and the fact that, in the verification of the filling out of the forms, neighbours and friends frequently become involved, particularly in small communities. People get very upset by that, which I think attests to the sensitivity of the information. People are not nearly so upset if they feel that it is going to a secure place in Ottawa, which is behind very carefully guarded doors. We have taken that up with Statistics Canada. They responded by putting in place, on an experimental basis, a process by which the form could circumvent the local verification process and go directly to Ottawa. However, my recollection is that they did not like the results. I think the reason was that it was too cumbersome and too slow. It has been discontinued, and they are now trying out something else. I will say on behalf of Statistics Canada that at least they are aware of this problem and are trying to fix it. Thus far, they have not been able to do so. The issue of the intrusiveness of questions is not something I can answer with anything more than a personal opinion. There is no doubt that the questions are intrusive. Of course, any disclosure of personal information to a government institution that is compulsory is intrusive - no matter what the information. This tends to be of an extremely intimate nature. You have just read off some of the questions, senator. The Statistics Canada people have a very complicated process for deciding what goes on to the census form. They have a number of advisory committees, educational, socio-economic, medical and so on, composed of people from both the public and private sector who submit to Statistics Canada a list of questions or issues which they think are of sufficient importance as to warrant inclusion in a census. Those are all mulled over, over a number of years, and finally they find their way on to the census form. Senator Murray: Who must Statistics Canada convince at the end of the day that the information they are seeking from individual citizens is absolutely required for the purposes of the governance of the country as distinct from the purposes of the academy? Do they have to convince the cabinet? Mr. Phillips: Yes, that is right. Once Statistics Canada has compiled its list of questions and developed its census form, that is submitted to cabinet for approval. Senator Murray: What do you have to say about it? Does the Privacy Commissioner have the opportunity to say, "This is really not needed for the purposes of governance; it may be interesting for the academy, but it is not needed for the census"? Mr. Phillips: No, the Privacy Commissioner is not consulted on the questions that are to be included on the form. Quite frankly, senator, I am not sure that the Privacy Commissioner should have such a role. Statistics Canada, which does that operation on behalf of a great many interests, has the responsibility of justifying its questions, and I think they have to be justified to persons other than myself. Senator Murray: Who weighs in on behalf of privacy when the draft questionnaire is placed before the cabinet? Is there anyone who says "no" to a particular question? Mr. Phillips: No one from my office. Senator Milne: Mr. Phillips, I want to talk about the historic census, not today's census. For the past 100 years, there has been a balance in Canada between a right to privacy and a right to use personal information for historical research. Of course, you have anticipated that I would ask you this question. You have also written quite a section in your report about the historic census records. I have read your presentation to the expert panel. I am fairly certain that your position, and the position you have taken in your report, is based on an opinion by lawyers of the Department of Justice that is, I believe, fundamentally flawed. Statistics Canada requested this opinion. It is too bad that the lawyers were in such a hurry. If they had just read a few pages further on, or even a few lines further on, they would have found in the 1906 instructions that the census takers were directed to write clearly because the census was intended to form a permanent record to be held in the archives of the Dominion. At that time, everything that was held in the archives was open to the public. It was quite clear that the lawmakers of that time and the legislatures of that time intended that to be a permanent, eventually public record. The implicit intent was that the census would eventually be open to the public. This balance between a right to privacy and a right to historic census data was debated again in the 1980s and reaffirmed in a modern context with the passage of access to information and privacy legislation. Speaking of privacy legislation, I thank you for your words about Bill C-6, because my committee dealt with that bill. Why is there now such an urgent need to overturn this long-established, equitable and historic balance? What you are actually doing is retroactively seeking to overturn the stated intentions of the legislatures at that time. After 100 years, the defence of privacy rights is suddenly paramount and overriding the legitimate and intended use of personal information for research purposes. Do you want to answer that question before I ask my second question? Mr. Phillips: I might as well get the whole blast. Senator Milne: I am being nice. Why do you not accept the logic of the passage of three interrelated pieces of legislation - the Privacy Act, the Access to Information Act and the National Archives Act of Canada - as well as the formal interpretation of the European Parliament, whose tough privacy provisions were what generated the push to pass Bill C-6 in Canada? The archival retention of government records, whether they contain personal information or not, and their use for historical and statistical research is a use consistent with the purpose for which the material was originally collected and therefore does not require additional consent. Otherwise, why would the government have archives at all for its own records? The Chairman: I wish to remind senators that, at the beginning, we passed a motion to waive rule 83, but we did not waive rule 84, which states that a senator should not ask a question for a longer time than 10 minutes. You also have the chance to ask a second question. You may ask many questions, but one question may not be more than 10 minutes in length. Please, Mr. Phillips, perhaps you could respond to Senator Milne. Senator Milne, you will have a chance to ask another question. Mr. Phillips: Perhaps when we have lunch, senator. You have asked a number of questions, and it will take me quite a while to deal with all of them. As a consequence, what do I make of the current Statistics Act, which states: 17.(1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12... (a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; (b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained... I am sure you read that. You have also, I am sure, read the language contained in the last census guide, which states that the confidentiality of your census form is protected by law. All Statistics Canada staff take an oath of secrecy and only employees who work with census data see your form. 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. Every Canadian gets that guarantee with the census form. With the current Statistics Act and that guarantee, plus the information that was contained in the regulations of 1906 and 1911 and the amendment in 1918, I can look at that as a layman. Senator, I was not guided in my interpretation of this matter by the opinions of the Department of Justice but by our own lay view of it, and the information and advice we received from our own legal staff. I do not think we want to get ourselves involved in that kind of debate anyway. I think we have to debate this issue on more philosophic and ethical grounds. Let me put it to you this way: If I have lunch with you next week, ask you all of the questions that are on that form and tell you that I want to write a book about you, I think you would say, "Just a minute." The argument, and I think there would be general agreement on this point, is that the modern census asks for so much intimate information that any disclosure in the near term should be absolutely prohibited. The argument, therefore, turns on whether there is any privacy right with the passage of time or whether it diminishes and finally is extinguished altogether. Senator Milne: You agreed with that last year. Mr. Phillips: I think I have to agree with the fact that the right to privacy might diminish to a certain extent. I do not have any objection personally to a lot of my information being divulged after I am dead, but I can only speak for myself. The real element of respect for privacy is choice and individual decision. For any particular interest group to express and assert a right to my information is something that causes me great difficulty now, and will continue to cause me difficulty until I breathe my last breath. I may well make provision for the disposal of my personal information after my death, and I should like to have respected. Some of that information might be contained in a census. The question here is whether academics and historians, who have a special interest in this matter, have a special right to override my rights to protect the privacy and confidentiality of my papers. I have difficulty answering that question, and it is one that must be asked. I feel a little differently about genealogists than I do about histo rians. There is a family interest frequently with real-time living consequences if people are unable to obtain genealogical information about their family backgrounds. It is not unreasonable to make adequate provision to take care of that problem. I have the greatest respect, senator, for Canadian historians and Canadian academics. I read many of them. However, I do not think that they are on very good ethical ground if they are saying that, because it is there, they have a right to it, no matter what its value may be. Journalists could make the same claim. They have a perfect right under a free press to gather what information they can, a constitutional right. However, there is nothing in the Constitution that transgresses or abrogates my right to say to a journalist, "No, I am not giving it to you," and "You cannot have it." How will we make these distinctions between a person who describes himself or herself as an historian or a journalist, who may write for quarterly magazines, and who indicates that their work may be historical in nature as well? There is a real problem here on the issue of personal privacy rights and whether historians are a special group of people who should be allowed to set those rights aside. I concede that the question of time is the basis of a good debate. Ninety-two years is the present allocation. I have looked at some of those early census forms and I do not think many people would object to that kind of data being made available for research purposes. However, let us fast-forward to 1971 and all the questions that are on that census form. I think many people would say that living, dead or otherwise, they do not want that information to be given out. We must also start considering that issue. Some issues deserve a thorough public debate, and I am trying not to be dogmatic about this, but rather to make the best case I can.